United States v. Melvin Ada , 700 F. App'x 689 ( 2017 )

FILED
NOT FOR PUBLICATION
OCT 30 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10098
Plaintiff-Appellee, D.C. No.
1:12-cr-00030-RVM-1
v.
MELVIN G. ADA, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-10323
Plaintiff-Appellee, D.C. No. 1:12-cr-00030-1
v.
MELVIN G. ADA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief Judge, Presiding
Argued and Submitted October 12, 2017
U. of Hawaii Manoa
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.
Melvin G. Ada appeals the District Court’s application of several sentencing
enhancements and departures after his guilty plea convictions for theft or
embezzlement (18 U.S.C. §§ 669 and 2), health care fraud (18 U.S.C. §§ 1347 and
2), and money laundering (18 U.S.C. §§ 1956(a)(1)(B)(i) and 2). He further
appeals the District Court’s restitution award to Midwest Medical Supply
Company (“MMS”). 18 U.S.C. §§ 3663, 3663A, 3664. The Government has
conceded that the restitution award was excessive and we remand for its
recalculation. We otherwise affirm.
Ada first argues that the District Court erred in applying a two-level
sophisticated means enhancement to his theft and fraud convictions. See U.S.S.G.
§ 2B1.1(b)(10)(C). Under the U.S. Sentencing Guidelines, sophisticated means
involves “especially complex or especially intricate offense conduct pertaining to
the execution or concealment of an offense.” U.S.S.G. § 2B1.1(b)(10)(C), app.
n.9. Although the Guidelines give examples such as use of offshore financial
accounts to hide assets or transactions, the Guidelines do not require such conduct.
See U.S.S.G. § 2B1.1(b)(10)(C), app. n.9. Ada opened and used bank accounts
with names deceptively similar to MMS to deposit stolen MMS checks, and he
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manipulated financial records to conceal his fraudulent scheme. The District Court
did not err in applying the sophisticated means enhancement. See United States v.
Tanke, 743 F.3d 1296, 1307-08 (9th Cir. 2014).
Similarly, Ada argues that the District Court erred in imposing a two-level
sophisticated money laundering enhancement to his money laundering convictions.
See U.S.S.G. § 2S1.1(b)(3). Although the Guidelines note that sophisticated
laundering typically involves the use of fictitious entities, shell corporations, or
offshore financial accounts, such conduct is not required for the enhancement to
apply. See U.S.S.G. § 2S1.1(b)(3), app. n.5. Ada deposited and transferred
numerous stolen checks through multiple bank accounts with deceptive names.
Thus, the District Court did not abuse its discretion in imposing the sophisticated
laundering enhancement.
Next, Ada asserts that the District Court erred in imposing a two-level
leadership enhancement to his money laundering convictions. The Guidelines
allow a two-level increase “[i]f the defendant was an organizer, leader, manager, or
supervisor in any criminal activity” involving “one or more other participants.”
U.S.S.G. § 3B1.1(c) & app. n.2. A participant is someone “who is criminally
responsible for the commission of the offense” even if acquitted. U.S.S.G. §
3B1.1(c), app. n.1; see also United States v. Dota, 33 F.3d 1179, 1188-89 (9th Cir.
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1994). Ada’s wife’s participation was proved by a preponderance of the evidence.
Dota, 33 F.3d at 1189. The District Court therefore did not clearly err in imposing
the leadership enhancement. See United States v. Alonso, 48 F.3d 1536, 1545 (9th
Cir. 1995).
Ada further contends that the District Court impermissibly double-counted
when it departed upward three levels on the basis of disruption of a governmental
function and public welfare endangerment. Ada’s embezzlement caused the
government’s hospital significant disruption by forcing the closure of its peritoneal
dialysis clinic for several months. See U.S.S.G. § 5K2.7. His conduct also
endangered the public health by forcing patients to undergo more serious
treatment, including emergency surgery, after the clinic’s closure. See U.S.S.G. §
5K2.14. Therefore, the District Court did not abuse its discretion in departing
upward from the Guidelines. See United States v. Sablan, 114 F.3d 913, 917 (9th
Cir. 1997) (en banc).
The District Court erred in awarding MMS restitution in the amount of
$132,565.08. During the restitution hearing, MMS presented testimony, e-mail
correspondence, and eleven invoices, claiming that the Commonwealth Health
Center (“CHC”) had not paid it $76,914.45, but MMS’s presentation established
only that CHC refused to pay the eleven invoices. The Government concedes that
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MMS failed to establish that Ada caused CHC’s failure to pay MMS the
$76,914.45. See United States v. Swor, 728 F.3d 971, 974 (9th Cir. 2013). That
portion of the award is not supported. We therefore vacate the restitution award
and remand to the District Court for a proper determination.
AFFIRMED in part, VACATED in part, and REMANDED.
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