United States v. Randolph Rodman , 596 F. App'x 548 ( 2015 )

NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
JAN 09 2015
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10337
Plaintiff - Appellee, D.C. No. 2:10-cr-01047-ROS-2
v.
MEMORANDUM*
RANDOLPH BENJAMIN RODMAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted October 9, 2014
Phoenix, Arizona
Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.
Randolph Rodman challenges his conviction for conspiracy to defraud the
government under 18 U.S.C. § 371 based on the alleged prejudicial testimony of a
co-conspirator and outrageous government conduct. He also challenges the
sufficiency of evidence for the charges of aiding and abetting the illegal possession
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and transfer of a machine gun, and use of the mail and wires in furtherance of a
scheme or artifice. Finally, Rodman argues that the district court erred in
enhancing his sentencing level for trafficking in firearms. All other claims raised
by Rodman are addressed in an opinion filed concurrently. Because the parties are
familiar with the facts and procedural history of this case, we repeat only those
facts necessary to resolve the issues raised on appeal. We affirm in part, vacate in
part, and remand for resentencing.
I. Testimony of Co-Conspirator
The district court did not abuse its discretion in allowing the testimony of
Lorren Mark Kalish. See United States v. Dorsey, 677 F.3d 944, 951 (9th Cir.
2012). Both co-defendants in the trial were charged with the same, single
conspiracy to defraud the government, and Kalish testified about the nature of that
conspiracy and the overt acts taken to further that conspiracy. Thus, Kalish’s
testimony about the conspiracy is relevant to Rodman, and Rodman was not
prejudiced by this testimony. See United States v. Smith, 609 F.2d 1294, 1297-99
(9th Cir. 1979).
II. Outrageous Government Conduct
In order to dismiss on the basis of outrageous government conduct, the court
must find the government’s conduct “so grossly shocking and so outrageous as to
2
violate the universal sense of justice.” United States v. Smith, 924 F.2d 889, 897
(9th Cir. 1991). Rodman argues that there was outrageous government conduct
because the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
continued to approve the registration and transfer forms submitted by Clark even
after they had begun an investigation into Clark’s operations. However, approving
submitted registration and transfer forms does not satisfy the high standard of
“grossly shocking” and violating “the universal sense of justice” necessary to find
outrageous government conduct. We also note that the government conduct at
issue did not encourage Rodman to commit the charged offenses as he purchased
and sold the offending machine guns and submitted false forms to the ATF prior to
the ATF's approval of the forms in 2008. See United States v. Black, 733 F.3d 294,
303-06 (9th Cir. 2013). Accordingly, we reject this claim.
III. Mail/Wire Fraud
Rodman was convicted of mail and wire fraud in connection with submitting
registration and transfer forms to the ATF and shipping illegal machine guns.
However, mail and wire fraud is “limited in scope to the protection of property
rights.” McNally v. United States, 483 U.S. 350, 360 (1987). The government
conceded in supplemental briefing and at oral argument that it had failed to allege a
conspiracy wherein Rodman deprived the government of property. Thus, we
3
reverse Rodman’s conviction for mail and wire fraud, and we remand for
resentencing.
IV. Aiding and Abetting Counts
Rodman was also convicted of aiding and abetting the possession and
transfer of machine guns in violation of law. Because Rodman failed to move for
acquittal based on the non-conspiracy aiding and abetting counts, we review for
plain error. United States v. Cruz, 554 F.3d 840, 844 (9th Cir. 2009). Aiding and
abetting requires that the defendant “specifically intended to facilitate the
commission of [the principal’s] crimes.” United States v. Bancalari, 110 F.3d
1425, 1430 (9th Cir. 1997) (alteration in original) (internal quotation marks
omitted). There was sufficient evidence proving that Rodman specifically intended
to facilitate Clark’s illegal possession and transfer of machine guns, and thus there
was no plain error.
V. Sentencing Guideline Enhancement
The government concedes that Rodman’s sentencing range was increased by
four levels for trafficking in firearms under U.S.S.G. § 2K2.1(b)(5) without the
proper supporting facts required for such an enhancement. Therefore, we vacate
his sentence and remand to the district court for resentencing.
AFFIRMED in part, VACATED in part, and REMANDED for resentencing.
4