United States v. Tomari Casellas ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50198
Plaintiff-Appellee, D.C. No.
2:17-cr-00378-ODW-2
v.
TOMARI AHMON CASELLAS, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-50209
Plaintiff-Appellee, D.C. No.
2:17-cr-00378-ODW-4
v.
RICHARD DANELLE DURDEN, AKA
Daniel, AKA Richard Durden, AKA John
Jones, AKA Malik R. Kirkland AKA John
Mack,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted January 14, 2021**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pasadena, California
Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,*** District
Judge.
Tomari A. Casellas and Richard D. Durden were convicted and sentenced
for their involvement in a fraudulent identification scheme. Casellas was
convicted of conspiracy to commit access device fraud and of aggravated identify
theft based on that conspiracy. 18 U.S.C. §§ 1029(b)(2), 1028A. Durden was also
convicted of those offenses, along with two counts of access device fraud, 18
U.S.C. § 1029(a)(2), and two additional counts of aggravated identify theft. We
have jurisdiction under 28 U.S.C. § 1291 and affirm.1
1. The district court did not violate Casellas’s speedy trial rights. Although
the Speedy Trial Act generally requires a defendant to be tried within seventy days
of his initial appearance or indictment, 18 U.S.C. § 3161(c)(1), it excludes from
this period reasonable continuances granted to a codefendant, United States v.
Lewis, 611 F.3d 1172, 1176 (9th Cir. 2010) (discussing 18 U.S.C. § 3161(h)(6)).
The reasonableness inquiry turns on the totality of the circumstances, including
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
1
Because the parties are familiar with the facts of this case, we do not
discuss them at length here.
2
whether a continuance is needed to preserve the possibility of a joint trial. Id.Such was the case here. In stipulating to the challenged continuances, a
codefendant stated that her counsel needed more time to familiarize herself with
recent and voluminous discovery. Unless the court wanted that party to proceed
unprepared, it had two choices: sever or continue the trials. Since severances are
disfavored in conspiracy cases, United States v. Jenkins, 633 F.3d 788, 807 (9th
Cir. 2011), and no party requested one, the court reasonably decided to grant the
continuances.
Casellas protests that the delay was really aimed at allowing the codefendant
to avoid a joint trial. He likens his case to United States v. Hall, 181 F.3d 1057,
1062 (9th Cir. 1999), where we found unreasonable a continuance premised on
allowing a codefendant to complete plea negotiations. Here, however, the delay
allowed the codefendant to prepare for trial in case “a pretrial resolution does not
occur.” It does not matter that she wound up pleading guilty; the continuances
preserved the “possibility” of joint proceedings. United States v. Messer, 197 F.3d
330, 338 (9th Cir. 1999) (emphasis added); see also Lewis, 611 F.3d at 1178.
Moreover, the court had released Casellas on bond well before granting the
opposed continuances, which further supports finding that they were reasonable.
See, e.g., Messer, 197 F.3d at 340.
2. The district court properly instructed the jury on the elements of the
3
conspiracy’s object, access device fraud. Because Casellas jointly proposed the
instructions, he waived challenging them on appeal. See United States v. Cain, 130
F.3d 381, 383-84 (9th Cir. 1997); see also United States v. Guthrie, 931 F.2d 564,
567 (9th Cir. 1991). And, in any event, the court did provide the jury with access
device fraud’s elements, albeit in its instructions concerning Durden’s charges for
that crime. The placement of an instruction elsewhere does not render the
instructions erroneous, so long as the jury would have understood them on the
whole. See United States v. Moran, 493 F.3d 1002, 1009 (9th Cir. 2017); see also
9th Cir. Model Crim. Jury Instr. 8.20 cmt. (2019) (directing courts to provide the
jury with the elements of the conspiracy’s object “if other jury instructions do
not”). Taken together, the instructions here apprised the jury of the necessary
information.
3. Sufficient evidence supported Durden’s convictions for aggravated
identify theft, which requires the defendant to have known that the fraudulent
“means of identification at issue belonged to another person.” Flores-Figueroa v.
United States, 556 U.S. 646, 657 (2009) (discussing 18 U.S.C. § 1028A). When
Durden applied for and opened a jewelry-store credit card under a victim’s name,
he supplied the store with the victim’s social security number, address, birthdate,
and employment information. A rational juror could have inferred that Durden
would not have applied for and expected approval of his application unless the
4
information he provided was real. In addition, several recordings of Durden’s
phone calls with Casellas indicate that Durden possessed the requisite knowledge
of his victims. For example, he mentioned that there were “no victims” when he
applied for another card on a separate occasion, as “they cancelled the card before
it got to the dude.”
4. Finally, we reject Durden’s double jeopardy challenge to his convictions
for aggravated identify theft. 18 U.S.C. § 1028A punishes the use of another’s
means of identification “during and in relation to” certain predicate offenses.
Arguing that the evidence tied him to only two uses of someone else’s
identification, Durden asserts that one of his three § 1028A convictions was
multiplicitous, even if there were three distinct predicate offenses. He cites no
controlling authority in support of this argument, however. Thus, even assuming
that the district court erred, it did not do so plainly.2 See United States v. Gonzalez
Becerra, 784 F.3d 514, 518 (9th Cir. 2015).
AFFIRMED.
2
Because we affirm Durden’s § 1028A convictions on plain-error
grounds, we need not address whether, as the government argues, the trial evidence
established that he had used another’s means of identification on other occasions.
5