107 F.3d 18 (9th Cir. 1997), 96-50141, U.S. v. Mangiardi
| Citation | 107 F.3d 18 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Michael MANGIARDI, Defendant-Appellant. |
| Case Date | February 04, 1997 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit |
Page 18
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Dec. 11, 1996.
Appeal from the United States District Court for the Central District of California, No. CR-95-241-DT; Dickran M. Tevrizian, District Judge, Presiding.
C.D.Cal.
AFFIRMED.
Before: FARRIS, BEEZER and TASHIMA, Circuit Judges.
MEMORANDUM [*]
Michael Mangiardi appeals his wire fraud and money laundering convictions as well as the sentence imposed for those convictions. He challenges the district court's jury instructions and cross-examination restrictions, the sufficiency of the government's evidence and the district court's guideline findings. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I
Mangiardi first seeks reversal on the grounds that the district court erred in instructing the jury on both the wire fraud and money laundering counts. A district court's formulation of jury instructions is reviewed for an abuse of discretion. United States v. Chastain, 84 F.3d 321, 323 (9th Cir.1996). Whether a jury instruction misstates an element of a statutory crime is a question of law reviewed de novo. United States v. Tegalicud, 84 F.3d 1180, 1183 (9th Cir.1996). We review jury instructions as a whole to determine if they are misleading or inadequate to guide the jury's deliberations. United States v. Kessi, 868 F.2d 1097, 1101 (9th Cir.1989).
Mangiardi first attacks the district court's wire fraud instruction. He claims that the district court erred in instructing the jury that it could find an "intent to defraud" based on the defendant's "reckless disregard" for the truth. Mangiardi also claims that this error created an unconstitutional inference in violation of his due process rights. At trial, Mangiardi objected, in writing, to the district court's intent instructions.
A
A conviction for wire fraud under 18 U.S.C. § 1343 requires a showing, beyond a reasonable doubt, that the defendant: "(1) used or caused the use of the ... telephone in interstate commerce; (2) in furtherance of a scheme to defraud; (3) with the intent to defraud." United States v. Bonanno, 852 F.2d 434, 440 (9th Cir.1988). 1 At issue is whether the district court correctly defined the statute's intent element.
The challenged instruction reads as follows:
An intent to defraud may be demonstrated by the scheme itself. Similarly, the Defendant's knowledge of a false statement or reckless indifference to its truth or falsity can demonstrate an intent to defraud.
This instruction, read either in isolation or in conjunction with the remaining instructions, properly defines § 1343's intent requirement; the district court did not err. We recently endorsed a similar § 1343 instruction as "more than adequately reflect[ing] the definition of intent to defraud, as Congress intended it, under 18 U.S.C. §§ 1341 and 1343." United States v. Dees, 34 F.3d 838, 842 (9th Cir.1994).
Mangiardi's reliance on United States v. McAllister, 747 F.2d 1273 (9th Cir.1984), and United States v. Aguilar, 80 F.3d 329 (9th Cir.1996) is unavailing. Neither case deals with a "reckless disregard" instruction.
B
Mangiardi also claims that the "intent to defraud" instruction created an unconstitutional presumption. He asserts this claim without elaboration, contending only that the district court's intent instruction shifted the burden of proof, thus requiring Mangiardi to prove affirmatively that he was not recklessly indifferent to the truth of his statements. We review de novo whether an instruction violates due process by creating an unconstitutional presumption or inference. United States v. Warren, 25 F.3d 890, 897 (9th Cir.1994).
Jury instructions can create either a mandatory or permissive inference, and either may violate the Constitution. United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987). A mandatory inference instruction requires the jury to find a particular element satisfied if the government proves certain predicate facts, unless the defendant rebuts the inference. Warren, 25 F.3d at 897. "A permissive inference instruction allows, but does not require, a jury to infer a specified conclusion if the government proves certain predicate facts." Id. Permissive instructions do not shift the burden of proof, but they may nonetheless be unconstitutional "if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." Id. (quoting Francis v. Franklin, 471 U.S. 307, 314-15 (1985) (citations omitted)).
Mangiardi challenges the following instructions:
An intent to defraud may be demonstrated by this scheme itself. Similarly, the Defendant's knowledge of a false statement or his reckless indifference to its truth or falsity can demonstrate an intent to defraud.
An act is done knowingly if the Defendant is aware of the act and does not act through ignorance, mistake, or accident. The Government is not required to prove that the Defendant knew that his acts or omissions were unlawful. You may consider evidence of the Defendant's words, acts or omissions, along with all the other evidence, in deciding whether the Defendant [acted] knowingly.
A promise is false if it is made with no intention of keeping it, or if it is made recklessly without a good faith basis for believing that it can be fulfilled.
The language of these instructions is necessarily permissive. The court uses terms such as "may" and "can" in describing the proposed inferences, which suggest a conclusion without mandating one. See, e.g., Warren, 25 F.3d at 898 (language such as "[jury] may find" creates a permissive inference instruction); Washington, 819 F.2d at 225-26 (same).
Moreover, read as a whole the instructions mitigate any inference or prejudice created by the inference instructions. See Warren, 35 F.3d at 898. The district court repeatedly told the jury that it must find each and every element beyond a reasonable doubt and that it was "entirely up to [the jury] ... to decide what facts to find from the evidence received during trial." Both the frequency and proximity of these admonitions cured any improper inference that may have arisen from the instructions identified by Mangiardi. See Warren, 25 F.3d at 898.
As noted, permissive inference instructions can violate the Constitution. We review the constitutionality of a permissive inference instruction on a case-by-case basis. Id. At issue is whether the instruction given, coupled with the evidence presented at trial, justifies the inferences suggested by the instructions, such as, for example, that Mangiardi's intent can be established by the "[fraudulent] scheme itself" or by reckless indifference.
The jury must have been able to infer from Mangiardi's employment, management and involvement in Select Service National Credit ("SSNC") that he knew its activities were fraudulent. There was conflicting testimony on the issue of Mangiardi's knowledge of any fraud at the "loan rooms." Because the "loan room" schemes and Mangiardi's connection to these operations were fully detailed at trial, however, a rational jury could arrive at the inferences implied by the instructions. See id. at 898 (citing County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157 (1979)).
Finally, the district court's instructions, although not unconstitutional, might still be defective if they mislead or confuse the jury, or if they intrude on the deliberative process. United States v. Rubio-Villareal, 967 F.2d 294, 297 (9th Cir.1992) (en banc). For example:
[a] permissive inference instruction can impermissibly intrude upon a jury's exclusive role as fact finder by suggesting that the judge believes there is sufficient evidence to convict.
Warren, 25 F.3d at 899 (citing Rubio-Villareal, 967 F.2d at 299-300). Such inferences, or perceived inferences, are cured when the permissive instruction is tempered by surrounding instructions. An example of an instruction which dissipates the influence of a permissive inference instruction is one which proclaims the jury the exclusive finder of fact and instructs the jury to make only the inferences it chooses. Id. As noted, the district court gave such instructions in this case.
II
Mangiardi next attacks the money laundering instructions on the basis that they did not state that the proceeds used for the alleged "financial transaction" must be the same proceeds gained from the alleged "specific unlawful activity." Because Mangiardi did not object to these instructions before the district court, we review only for plain error. United States v. Wright, 742 F.2d 1215, 1222 (9th Cir.1984). "Plain error" is clear or obvious error, and may be reversed on appeal only if the error affected a defendant's substantial rights. United States v. Olano, 507 U.S. 725, 734-35 (1993).
The district court correctly instructed the jury as to each element of money laundering under § 1956(a)(1)(A)(i) and required that the jury find each elements beyond a reasonable doubt. 2 The district court instructed:
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity with the intent to promote the carrying on of a specified unlawful activity is guilty of an offense against the United States.
In order for the Defendant Michael Mangiardi to be found guilty of this charge, the Government must prove each of the following elements beyond a reasonable...
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