United States v. Louis Vadino ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 24 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50135
Plaintiff-Appellee, D.C. No. 8:12-cr-00128-AG-1
v.
MEMORANDUM*
LOUIS JOSEPH VADINO, AKA Edward
Estrate, AKA Salvatore Filippone, AKA
Louis J. Vadino,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted June 5, 2020
Pasadena, California
Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,**
District Judge.
Defendant Louis Joseph Vadino appeals his convictions and sentences for:
(a) tax evasion in violation of 26 U.S.C. § 7201 (“Count 1”); (b) making a false
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
statement to a federal agency in violation of 18 U.S.C. § 1001(a) (“Count 2”); (c)
failing to appear in violation of 18 U.S.C. § 3146(a)(1), (b)(1)(A)(ii) (“Count 3”);
(d) conspiracy in violation of 18 U.S.C. § 371 (“Count 4”); (e) aiding and abetting
the making of false statements on passport applications in violation of 18 U.S.C.
§ 1542 (“Counts 5 and 6”); and (f) aiding and abetting aggravated identity theft in
violation of 18 U.S.C. § 1028A(a)(1) (“Counts 7 and 8”). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm in part and reverse in part.
1. Vadino argues that the superseding indictment should have been dismissed
with prejudice, because the district court unreasonably granted his codefendant an
“ends of justice” continuance of the trial date without sufficient justification, in
violation of the Speedy Trial Act. Because we do not find that the district court
clearly erred in determining that the continuance was an excludable period of delay
under 18 U.S.C. § 3161(h)(6) and (h)(7), we affirm the district court’s denial of
Vadino’s motion to dismiss the superseding indictment. See United States v.
Murillo, 288 F.3d 1126, 1133 (9th Cir. 2002); see also United States v. Lewis, 611
F.3d 1172, 1177 (9th Cir. 2010).
2. Vadino argues that the district court committed reversible error by refusing
to instruct the jury to assume that potentially relevant evidence destroyed by the
Government was favorable to his defense. “The rule governing sanctions for lost or
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destroyed evidence” is set forth in United States v. Loud Hawk, 628 F.2d 1139,
1151–56 (9th Cir. 1979) (en banc) (Kennedy, J., concurring), reversed on other
grounds in United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008). United
States v. Robertson, 895 F.3d 1206, 1213 (9th Cir. 2018). The district court abused
its discretion by failing to apply Loud Hawk’s rule in determining the proper jury
instruction to remedy the Government’s destruction of evidence. See United States
v. Sivilla, 714 F.3d 1168, 1172–73 (9th Cir. 2013).
Given the district court’s error, “we must reverse unless there is a ‘fair
assurance’ of harmlessness or, stated otherwise, unless it is more probable than not
that the error did not materially affect the verdict.” United States v. Gonzalez-
Flores, 418 F.3d 1093, 1099 (9th Cir. 2005) (alteration adopted and emphasis
added) (quoting United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en
banc)). “The burden to show the harmlessness of the error is on the government,
and in the rare case in which we find ourselves in equipoise as to the harmlessness
of the error, reversal is required.” Id. Because the Government has failed to meet
its burden to show the harmlessness of the district court’s error, we must reverse
Vadino’s convictions for Counts 1 and 2.
3. We have the discretion “to vacate [and remand] all of the sentences imposed
by a district court when the district court erred with respect to one of the
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sentences.” United States v. Evans-Martinez, 611 F.3d 635, 645 (9th Cir. 2010).
On remand, the district court has the authority to “resentence a defendant on each
count remanded by the appellate court, even if the district court had made no error
with respect to a particular count.” Id. We therefore vacate all of Vadino’s
sentences and remand for resentencing.
We AFFIRM Vadino’s convictions for Counts 3–8, but REVERSE and
VACATE his convictions for Counts 1 and 2 and REMAND both counts for a
new trial. We also VACATE all of Vadino’s sentences and REMAND for
resentencing.1
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Because we remand for a new trial on Counts 1 and 2 and remand for
resentencing, we do not address the remaining issues raised on appeal.
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FILED
United States v. Vadino, Case No. 17-50135 JUN 24 2020
Rawlinson, Circuit Judge, concurring MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the conclusion that this case should be remanded for a retrial on
counts one and two. I reach this conclusion only because the district judge decided
that a destruction-of-evidence instruction was warranted. Having decided that an
instruction was warranted, the better practice would have been for the district court
to give the model jury instruction or make a record to support the given instruction.
See United States v. Hairston, 64 F.3d 491, 494 (9th Cir. 1995) (explaining that a
defendant is entitled to instructions that have “some foundation in the evidence”).
Unfortunately, the district court did neither. And the record does not establish
unequivocally that the defendant suffered any prejudice from the lack of an adverse
inference in his favor due to the government’s destruction of evidence. For that
reason, I concur in the conclusion that the convictions on counts one and two
cannot stand.
I also agree that under our precedent when one or more convictions is
invalidated, the sentence becomes unbundled and must be remanded for imposition
of a new sentence. See United States v. Ruiz-Alvarez, 211 F.3d 1181, 1182 (9th
Cir. 2000), as amended.
I fully concur in the majority’s discussion of the Speedy Trial Act challenge.
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