United States v. Anton Drago ( 2019 )

FILED
NOT FOR PUBLICATION
JUL 22 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10332
Plaintiff-Appellee, D.C. No.
2:13-cr-00334-JCM-CWH-1
v.
ANTON PAUL DRAGO, AKA Evan MEMORANDUM*
Joseph Fogarty,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted June 13, 2019
San Francisco, California
Before: SCHROEDER and M. SMITH, Circuit Judges, and RAKOFF,** District
Judge.
A jury convicted defendant Anton Drago of conspiring to commit wire fraud
(count 1), wire fraud (counts 2–3), false claims (counts 4–6), theft of public funds
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
(count 7), fictitious obligations (count 8), false statements (count 9), and failure to
file a tax return (count 10). Defendant was sentenced to 300 months in prison. On
appeal, defendant challenges the district court’s denial of his motions to bifurcate,
to suppress evidence, to continue the trial, and to declare a mistrial based on his
attorney’s asserted lack of preparation. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
Defendant moved to sever the counts relating to his misrepresentations to the
Department of Veterans Affairs from the counts relating to two fraudulent
investment schemes. Even if joinder was not proper, defendant has not shown any
prejudice warranting reversal. United States v. Rousseau, 257 F.3d 925, 932 (9th
Cir. 2001) (reversal justified only if misjoinder “had a substantial and injurious
effect or influence in determining the jury’s verdict.”) (brackets omitted) (quoting
United States v. Terry, 911 F.2d 272, 277 (9th Cir. 1990)). The evidence of guilt
was overwhelming on all counts and as the Supreme Court has established, a
defendant is not entitled to severance "merely because [he] may have a better
chance of acquittal in separate trials.” Zafiro v. United States, 506 U.S. 534, 540
(1993) (citations omitted).
The district court properly denied defendant’s pre-trial motion to exclude
evidence that he lied to potential investors about being a Vietnam war veteran.
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The evidence of defendant’s lie was relevant to prove that he fraudulently induced
at least one victim, a Vietnam veteran herself, to invest in his scheme. The
evidence was also admissible under Federal Rule of Evidence 404(b), to rebut
defendant’s argument that he dealt with investors in good faith.
The district court did not abuse its discretion when, ten days before trial, it
denied defense counsel’s motion for what would have been an eleventh
continuance. United States v. Kloehn, 620 F.3d 1122, 1126–27 (9th Cir. 2010)
(district court’s “‘broad discretion’ to . . . deny a continuance . . . ‘will not be
disturbed on appeal absent clear abuse’”) (quoting United States v. Flynt, 756 F.2d
1352, 1358 (9th Cir. 1985)). No need for the continuance was shown, and the
delay would have inconvenienced many out-of-state witnesses.
Nor was it an abuse of discretion to deny defense counsel’s motion to
declare a mistrial because of a professed need for further preparation. Neither the
district court nor this court is obligated to accept a “self-proclaimed assertion by
trial counsel of inadequate performance.” Edwards v. Lamarque, 475 F.3d 1121,
1126 (9th Cir. 2007) (internal quotations omitted). None of counsel’s errors reveal
a manifest necessity for a new trial. See Arizona v. Washington, 434 U.S. 497, 506
(1978).
AFFIRMED.
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