United States v. Pelisamen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10022

Plaintiff-Appellee,

v.  DC No.

1:08 cr 01-ARM 2

LUIS KAIPAT PELISAMEN,

OPINION

Defendant-Appellant.



Appeal from the District Court

for the Northern Mariana Islands

Alex R. Munson, Chief District Judge, Presiding

Argued and Submitted

February 17, 2011—Honolulu, Hawaii

Filed April 13, 2011

Before: A. Wallace Tashima, William A. Fletcher, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Tashima

5011

5014 UNITED STATES v. PELISAMEN

COUNSEL

Douglas Cushnie, Esq., Saipan, MP, for the appellant

UNITED STATES v. PELISAMEN 5015

Kirk W. Schuler, Esq., Assistant United States Attorney, Sai-

pan, MP, for the appellee

OPINION

TASHIMA, Circuit Judge:

The United States Supreme Court has recently held that the

offense of honest-services fraud codified at 18 U.S.C. § 1346

is unconstitutionally vague when applied to conduct other

than bribery and kickbacks. Skilling v. United States, 130

S.Ct. 2896, 2931 (2010). In this case, we must decide whether

a conviction for wire fraud remains valid where the language

of the indictment and the evidence offered by the government

support a “money or property” theory of fraud, where the jury

was instructed on both a “money or property” theory and an

honest-services theory, and where the jury returned a special

verdict form indicating that it had convicted the defendant on

both theories. We hold that the “money or property” fraud

conviction remains valid.

I. BACKGROUND

Defendant-Appellant Luis Pelisamen (“Defendant”), was

convicted of wire fraud in connection with the unauthorized

removal of funds from his grandmother’s estate, of which he

was the administrator. Rita Kaipat (“Rita”), Defendant’s

grandmother, died in 1959. Her estate included a parcel of

real property that was taken in eminent domain by the Mari-

anas Public Land Authority (“MPLA”), without compensa-

tion, in 1991 or 1992. In 1994, the Superior Court for the

Commonwealth of the Northern Mariana Islands (“Superior

Court”) determined that this property was actually held by

Rita as customary trustee for herself and the other heirs of

5016 UNITED STATES v. PELISAMEN

Vicenta Kaipat (“Vicenta”), presumably Rita’s mother, but

possibly her stepmother or other relative.1

In December 2003, Defendant was appointed administrator

of Rita’s estate. After Defendant’s appointment, he and his

attorney at the time, Timothy Bellas (“Bellas”), negotiated

with the MPLA for the overdue compensation for the land

that had been taken in eminent domain. Following an initial

offer of $100,000, Defendant succeeded in securing compen-

sation in the significantly higher amount of $4.4 million. In

May 2005, the $4.4 million in compensation was received

from the MPLA and deposited into an account at the Bank of

Guam that had been established by Bellas in the name of the

estate. That fall, the Superior Court issued a Partial Decree of

Distribution for Vicenta’s estate, which divided the $4.4 mil-

lion award three ways, with approximately $1.365 million

going to the estate of Rita (Defendant’s grandmother) and

$1.365 million going to each of the estates of two other heirs

of Vicenta. The Superior Court also awarded Defendant

$161,500 in fees for his services as administrator of the estate.

Prior to the issuance of that decree, Defendant had termi-

nated Bellas as his attorney and hired Joseph Arriola

(“Arriola”) to replace him. Bellas controlled the account that

held the $4.4 million in Vicenta’s estate and was responsible

for distributing the one-third shares to each of Vicenta’s heirs.

Bellas established a new bank account at the Bank of Guam

to hold the $1.365 million due to Rita’s estate and gave

Defendant’s new attorney Arriola access to those funds by

adding him as a signatory to that account. In November 2005,

Arriola depleted that account by obtaining a cashier’s check

for the funds in Rita’s estate (now increased to $1.377 mil-

lion, including accumulated interest). The request for the

cashier’s check that Arriola submitted to the Bank of Guam

included an acknowledgment and consent signed by Defen-

1

Defendant disputes that Vicenta was actually Rita’s mother, but that

question is of no import to our decision.

UNITED STATES v. PELISAMEN 5017

dant. The Bank of Guam then initiated a wire transfer of those

funds to a new account at the Bank of Hawaii that had been

set up by Arriola. Arriola added Defendant as a signatory to

this new account shortly after it was established.

Per a Superior Court order issued in April 2006, Rita had

five heirs, including Defendant’s mother, each of whom was

entitled to approximately $273,000. The $273,000 due to

Defendant’s mother was subject to further division between

her five heirs, one of whom was Defendant. Thus, Defendant

ultimately was entitled to an inheritance of $54,682. Between

December 2005 and May 2006, however, Defendant and

Arriola removed a total of $625,775 from Rita’s estate, by

writing a series of checks drawn on the Bank of Hawaii

account that were signed by both of them. Checks totaling

$348,500 were written to Defendant. Another $20,075 was

taken out of the estate’s account to pay a car dealership for a

2005 Nissan Frontier that Defendant had purchased. Checks

totaling an additional $38,000 were written to Defendant’s

wife, and another $219,200 was given to Arriola.

In January 2008, both Defendant and Arriola were indicted

of one count of conspiracy to commit wire fraud, one count

of wire fraud, one count of conspiracy to commit money laun-

dering, and two counts of money laundering.2 Defendant was

convicted on all counts.3 After his motion for a new trial was

denied, the district court sentenced Defendant to sixty

months’ imprisonment on each count, to be served concur-

rently, plus restitution in the amount of $626,775. Defendant

timely appealed.

2

The money laundering charges were based on the issuance of two sepa-

rate checks to the car dealership for Defendant’s new car, as described

above.

3

Defendant was tried twice, his first trial having ended in a mistrial due

to a hung jury.

5018 UNITED STATES v. PELISAMEN

II. ANALYSIS

A. Jurisdiction

We have jurisdiction pursuant to 28 U.S.C. § 1291 (grant-

ing jurisdiction over appeals from all final decisions of the

District Court of Guam), and 48 U.S.C. § 1824 (applying

“[t]hose portions of Title 28 which apply to . . . the District

Court of Guam” to the District Court for the Northern Mari-

ana Islands).

B. The Impact of Skilling

The indictment charged Defendant with the commission of

wire fraud in violation of 18 U.S.C. § 1343 and specified that

such wire fraud was for the purposes of “obtaining money and

property.” The indictment does not mention 18 U.S.C. § 1346,

which provides that the behavior punishable under § 1343

includes a scheme or artifice “to deprive another of the intan-

gible right of honest services.” Nonetheless, the district judge

instructed the jury that it could convict Defendant if it found

that he had either (1) “defrauded the heirs of the Estate of Rita

Kaipat,” or (2) “deprived the heirs . . . of their right to honest

services,” or (3) done both. The verdict form permitted a con-

viction on the wire fraud charge if the jury found Defendant

guilty of a scheme or plan to defraud the heirs “and/or” a

scheme or plan to deprive them of honest services. The jury

checked the boxes for both forms of fraud.

After Defendant had been convicted, the Supreme Court

decided Skilling, in which it held that the honest-services

fraud codified in 18 U.S.C. § 1346 is unconstitutionally vague

when applied to conduct other than bribery and kickbacks.

Defendant now argues that the holding in Skilling renders the

jury’s verdict constitutionally infirm.

1. Standard of Review

The proper standard of review for this claim merits some

discussion. Defendant did not object to the jury instructions

UNITED STATES v. PELISAMEN 5019

in the district court. Generally, a failure to object to jury

instructions means that appellate courts may review the

instructions only for “plain error that affects substantial

rights.” Fed. R. Crim. P. 52(b); see Fed. R. Crim. P. 30(d).

The plain-error standard applies even if, as is the case here,

there were no legal grounds for challenging the instructions at

the time they were given, but such legal grounds have since

arisen due to a new rule of law arising between the time of

conviction and the time of appeal. See Johnson v. United

States, 520 U.S. 461, 464-68 (1997). The plain-error standard

of review dictates that reversal is warranted only where there

has been (1) error; (2) that is plain; (3) that affects substantial

rights; and (4) where the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. at

466-67; United States v. Olano, 507 U.S. 725, 732 (1993);

United States v. Davenport, 519 F.3d 940, 943 (9th Cir.

2008).

Generally, the defendant bears the burden of persuasion on

the third prong (affects substantial rights) of the plain-error

test. See Olano, 507 U.S. at 741. Defendant argues, however,

that the burden of persuasion shifts to the prosecution when,

as is true in this case, the error was not clear at the time of the

conviction, but a supervening decision renders it so by the

time of appeal. The Second Circuit has held that the burden

does shift in these sorts of cases. United States v. Viola, 35

F.3d 37, 42 (2d Cir. 1994), abrogated on other grounds by

Salinas v. United States, 522 U.S. 52 (1997).

This circuit has not adopted the Viola burden-shifting rule

and contrary to Defendant’s assertion, the framework has not

been adopted in other circuits either. See United States v.

Gonzalez-Huerta, 403 F.3d 727, 734-35 (10th Cir. 2005) (not-

ing that the Supreme Court in Johnson had an opportunity to

apply and endorse the Viola “presumed prejudice” rule and

did not do so); United States v. Kramer, 73 F.3d 1067, 1074

n.17 (11th Cir. 1996) (declining to follow Viola); see also

Lowery v. United States, 3 A.3d 1169, 1174 (D.C. 2010)

5020 UNITED STATES v. PELISAMEN

(describing Viola as “one exception of uncertain authority” to

the rule that defendant bears the burden of persuasion on prej-

udice). Moreover, the Second Circuit itself has acknowledged

that the Supreme Court may have implicitly overruled Viola

by not shifting the burden in Johnson, which also involved a

new rule of law rendering jury instructions invalid after con-

viction, but before appeal. See United States v. Williams, 399

F.3d 450, 457 n.7 (2d Cir. 2005).

We need not decide who bears the burden of persuasion in

circumstances such as in this case where there has been an

intervening decision between the time of conviction and the

time of appeal. As we explain below, we are confident that

Defendant’s substantial rights were not affected under either

standard, and that the error did not seriously affect the fair-

ness, integrity, or public reputation of judicial proceedings.

2. Merits

[1] As noted, the Supreme Court held in Skilling that a

defendant may not be convicted of honest-services fraud,

except in cases involving bribes or kickbacks. 130 S.Ct. at

2931. Thus, Defendant argues that the first two prongs of the

plain error test are easily met. The government argues, how-

ever, that the district court in this case committed no error

because Arriola received kickbacks from Defendant for con-

spiring with him to steal money from Rita’s estate. We reject

this argument. Black’s Law Dictionary defines a “kickback”

as a “return of a portion of a monetary sum received, esp. as

a result of coercion or a secret agreement.” Black’s Law Dic-

tionary (9th ed. 2009) (emphasis added). The indictment

nowhere mentions the term kickback or the concept of Defen-

dant redirecting any funds to Arriola once he had received

them. Moreover, Defendant never returned any money to

Arriola because he never received any money from him. All

of the stolen money was taken from Rita’s estate. The govern-

ment’s case has always been that Defendant and Arriola acted

together to withdraw funds that belonged to Rita’s estate and

UNITED STATES v. PELISAMEN 5021

its heirs. In contrast, the paradigmatic kickback is made “for

the purpose of improperly obtaining or rewarding favorable

treatment” in some area (e.g., government contracts). 41

U.S.C. § 52(2). The Supreme Court’s analysis in Skilling

strongly suggests that what it meant by “kickbacks” was pre-

cisely this paradigmatic situation. 130 S.Ct. at 2927, 2930-31.

[2] As there were no bribes or kickbacks alleged, the incor-

poration of honest-services fraud into the jury instructions and

jury verdict form was plainly erroneous under Skilling. See

Johnson, 520 U.S. at 467-68. Therefore the first two prongs

of the plain-error test are met.

The next question is whether the error affected substantial

rights, which in most cases is an inquiry into whether it was

“prejudicial” — that is, whether it “affected the outcome of

the [trial] court proceedings.” Olano, 507 U.S. at 734.4 We

answer that question in the negative. Defendant’s wire fraud

conviction is not dependent on his conviction under an

honest-services theory.

[3] As the Supreme Court observed in Skilling, the crime

of honest-services fraud was initially created by courts to

cover situations in which “the victim’s loss of money or prop-

erty [did not supply] the defendant’s gain,” 130 S.Ct. at 2926

— in other words, to cover cases of fraud that are more com-

plex or subtle than those in which the defendant steals money

or tangible property from the victims. This is clearly not such

a case. Here, the allegation is that Defendant’s actions directly

deprived Rita’s other heirs of their money. The district court

instructed the jury that they must convict if they found either

that Defendant had “defrauded” the heirs, or that he had “de-

prived the heirs . . . of their right to honest services,” or that

he had done both. The instructions do not clarify that “de-

4

Certain errors may affect substantial rights without being prejudicial,

see, e.g., Olano, 507 U.S. at 735, but Defendant does not argue that this

error falls into that category.

5022 UNITED STATES v. PELISAMEN

frauding” must involve the taking of money or property from

the victims. However, the alleged appropriation of the vic-

tims’ money was implied in this instruction, given that the

entire basis of the indictment was that Defendant had helped

himself to money that did not belong to him.

[4] The district court also gave the jury a special verdict

form that asked the jury to specify the theory of liability under

which it had convicted Defendant by marking a line next to

the jury’s chosen theory or theories. The jury form provided:

If you voted guilty, indicate what theory or theories

of liability you relied upon, as described in Jury

Instruction No. 15:

____ Scheme or plan to defraud the heirs of the

Estate and/or

____ Scheme or plan to deprive the heirs of the

Estate of their honest services.

The jury checked both lines. This choice clearly indicates that

the conviction was based on a valid “money or property” the-

ory of wire fraud, as well as the invalid “honest services” the-

ory, and, therefore, remains valid. See Hedgpeth v. Pulido,

129 S.Ct. 530, 532 (2008) (per curiam) (“An instructional

error arising in the context of multiple theories of guilt [does

not] vitiate [ ] all the jury’s findings . . . .”); cf. Yates v.

United States, 354 U.S. 298, 312 (1957) (a verdict may be set

aside “where the verdict is supportable on one ground, but not

on another, and it is impossible to tell which ground the jury

selected”) (emphasis added), overruled on other grounds by

Burks v. United States, 437 U.S. 1 (1978).

Black v. United States, 130 S.Ct. 2963 (2010), which the

Court decided on the same day as Skilling, provides further

guidance on how to address this issue. In Black, the govern-

ment had similarly argued alternative theories of money-or-

UNITED STATES v. PELISAMEN 5023

property fraud and honest-services fraud. Unlike in this case,

however, only a general verdict form was provided to the

jury, which made it impossible to discern the theory on which

it convicted the defendant. See 130 S.Ct. at 2966. The case

was remanded by the Court to the Seventh Circuit, which con-

cluded that, notwithstanding the general verdict, the fraud

convictions would remain valid if it was “not open to reason-

able doubt that a reasonable jury would have convicted [the

defendants] of pecuniary fraud.” United States v. Black, 625

F.3d 386, 388 (7th Cir. 2010). This test is met here. The

indictment focuses on how Defendant and Arriola worked

together to take money from Rita’s estate. A key exhibit relied

upon by the government shows the amounts of money to

which the heirs of Rita were entitled and compares those

amounts to amounts actually received or receivable after

Defendant’s and Arriola’s withdrawals. And, most tellingly,

the special verdict form indicates that the jury did convict on

the basis of a theory other than honest-services fraud.5

[5] Under the fourth prong of the plain-error test, we may

reverse the conviction only if the error seriously affects the

fairness, integrity, or public reputation of judicial proceed-

ings. It is true that the use of the term “defraud” in the jury

instructions and jury verdict form without a reference to

money or property is less than ideal. But it does not tilt the

equities in favor of reversal, given how obvious it is that this

is a case of pecuniary fraud. The Supreme Court’s holding in

Skilling was intended to foreclose as unconstitutional convic-

tions for fraud based on acts such as undisclosed self-dealing

5

In the wake of Skilling, several district courts have also considered

cases involving special verdict forms providing for conviction on either a

pecuniary fraud theory or an honest-services theory, similar to that used

here. Those courts have concluded, as we do here, that convictions for

mail or wire fraud remain valid, as long as the special verdict form shows

that the jury found the defendant guilty on the pecuniary fraud theory.

United States v. Muoghalu, 2010 WL 3184178, at *11 n.3 (N.D. Ill. Aug.

9, 2010); United States v. Allen, 2010 WL 2813767, at *2 (N.D. Ind., Jul.

15, 2010).

5024 UNITED STATES v. PELISAMEN

or conflicts of interest. Skilling, 130 S.Ct. at 2932. The Court

certainly did not intend for that holding to call into question

convictions clearly based on the theft of money, such as in

this case.

[6] Because the error did not affect Defendant’s substantial

rights, nor did it affect the fairness, integrity, or public reputa-

tion of judicial proceedings, there was no “plain error that

affect[ed Defendant’s] substantial rights.” Fed. R. Crim. P.

52(b).

C. Defendant’s Remaining Contentions

We conclude that the other bases of Defendant’s appeal are

without merit.

1. Presentation of false testimony

Defendant’s motion for a new trial was premised in part on

the assertion that the government presented false testimony by

Defendant’s former attorney Bellas. We review the district

court’s denial of that motion for abuse of discretion. See

United States v. Moses, 496 F.3d 984, 987 (9th Cir. 2007).

The district court should have granted a new trial if: (1) the

prosecution actually presented false testimony; (2) the prose-

cution knew or should have known that the testimony was

false; and (3) the false testimony was material to the outcome

of the trial. See Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir.

2010).

[7] Here, Bellas’ testimony does not rise to the level of

perjury, nor do we find that the government knew or should

have known that it was false. At trial, Bellas testified that, in

September 2005, he had transferred the one-third share of

Vicenta’s estate that belonged to Rita’s estate to Defendant’s

control by personally handing a check to Arriola in a parking

lot. In fact, however, bank records indicate that Bellas actu-

ally created a new account in the name of Rita’s estate at the

UNITED STATES v. PELISAMEN 5025

Bank of Guam, with both himself and Arriola as signatories,

and deposited the money into a time certificate of deposit in

this account. Bellas was testifying in June 2009 about admin-

istrative matters that he had handled in September 2005 —

almost four years earlier. His testimony regarding the transfer

of funds was frequently qualified by the phrases “to my recol-

lection” or “[m]y recollection is . . .”, and he admitted that he

did not remember exactly when the transfer occurred. The

government theorizes, quite plausibly, that what Bellas was

remembering was handing Arriola not a check but the time

certificate of deposit into which he had placed Rita’s share of

the Vicenta estate. The district court’s implicit conclusion that

Bellas did not intentionally perjure himself is therefore well-

supported.

It is also highly unlikely that the government knew or

should have known that it was offering false testimony. The

documents establishing that the funds were moved not by

check, but by the creation of a new account, were presented

into evidence only when the defense called as its witness a

vice president of the Bank of Guam, who delivered those doc-

uments in response to a defense subpoena. When those docu-

ments were presented, the government’s attorney protested

that he had just seen them for the first time “five minutes

ago,” and Defendant’s attorney also stated that this was his

first time seeing them. Nothing in the record supports an

inference that the government knew that Bellas’ testimony

about how the money transfer was made was “false.”

2. Brady violation

Defendant also makes the related argument that he is enti-

tled to a new trial because the government failed to disclose

the documents showing that Bellas’ account of how he trans-

ferred the money to Arriola was incorrect and thereby vio-

lated the rule, set forth in Brady v. Maryland, 373 U.S. 83

(1963), that “the suppression by the prosecution of evidence

favorable to an accused . . . violates due process where the

5026 UNITED STATES v. PELISAMEN

evidence is material either to guilt or to punishment.” Id. at

87. The Brady rule applies to evidence impeaching a govern-

ment witness, as well as to evidence that is directly exculpa-

tory. See United States v. Bagley, 473 U.S. 667, 676 (1985).

While the standard of review for a trial court’s denial for

a motion for a new trial is generally abuse of discretion,

review is de novo when the asserted basis for a new trial is a

Brady violation. See United States v. Price, 566 F.3d 900, 907

(9th Cir. 2009); United States v. Howell, 231 F.3d 615, 624

(9th Cir. 2000). A Brady violation has occurred if: (1) the

government willfully or inadvertently suppressed; (2) evi-

dence favorable to the accused; and (3) prejudice ensued. See

Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Hein, 601

F.3d at 906. The suppression of evidence need not have been

knowing or negligent behavior on the part of the government.

See, e.g., id. But the evidence must have been suppressed. The

defendant “bears the initial burden of producing some evi-

dence to support an inference that the government possessed

or knew about” the Brady material. Price, 566 F.3d at 910.

[8] Defendant has not met that initial burden here. As dis-

cussed above, the record clearly indicates that both the gov-

ernment and Defendant’s attorney were surprised by the

disclosure at trial of the bank records indicating that Bellas’

account of how the money got from him to Arriola was inac-

curate. Nothing in the record suggests that these records were

possessed by or known to any agent of the government at any

point before Bellas testified. Rather, it was Defendant who

possessed the records and introduced them into evidence at

trial.

3. Sufficiency of evidence

Defendant argues that the government failed to prove the

elements of wire fraud, which is the predicate crime to his

money laundering conviction. We review the district court’s

denial of Defendant’s motion for judgment of acquittal for

UNITED STATES v. PELISAMEN 5027

plain error. See United States v. Lowry, 512 F.3d 1194, 1198

n.3 (9th Cir. 2008).6

Defendant was convicted of wire fraud in violation of 18

U.S.C. § 1343. The elements of wire fraud are: (1) the exis-

tence of a scheme to defraud; (2) the use of wire, radio, or

television to further the scheme; and (3) specific intent to

defraud. See Sullivan, 522 F.3d at 974. Defendant’s signature

appears above Arriola’s on virtually all of the checks that

were written to himself, to his wife, to Arriola, and to the car

dealership out of the money in Rita’s estate. The wire transfer

affording federal criminal jurisdiction over the case is the

November 2005 transfer of the $1.37 million that belonged to

Rita’s estate from the account established by Bellas at the

6

Ordinarily, a claim that a conviction is not supported by sufficient evi-

dence is reviewed by this court de novo, see United States v. Sullivan, 522

F.3d 967, 974 (9th Cir. 2008), and the conviction is upheld if, “viewing

the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond

a reasonable doubt,” id. (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). However, the claim is subject to de novo review only if the defen-

dant has adequately preserved the issue for appeal. See Lowry, 512 F.3d

at 1198 n.3.

Here, Defendant moved for a judgment of acquittal under Fed. R. Crim.

P. 29(a) at the close of the government’s evidence, but he did not make

an additional Rule 29 motion at the close of all evidence, nor was the issue

raised in his motion for a new trial. The weight of authority in this circuit

is that a Rule 29 motion made at the close of the government’s evidence

must be renewed at the end of trial or in a written post-trial motion, or else

plain error review applies. See United States v. Gonzalez, 528 F.3d 1207,

1210-11 (9th Cir. 2008); United States v. Alvarez-Valenzuela, 231 F.3d

1198, 1200-01 (9th Cir. 2000); United States v. Vizcarra-Martinez, 66

F.3d 1006, 1010 (9th Cir. 1995). But see United States v. Esquivel-Ortega,

484 F.3d 1221, 1224-25 (9th Cir. 2007); United States v. Stewart, 420

F.3d 1007, 1014 (9th Cir. 2005). In any event, the distinction is largely

academic, given that, whether review is de novo or for plain error, we

must give great deference to the jury verdict and “must affirm if any ratio-

nal trier of fact could have found the evidence sufficient.” Vizcarra-

Martinez, 66 F.3d at 1010.

5028 UNITED STATES v. PELISAMEN

Bank of Guam to the new account at the Bank of Hawaii.7

The transfer was initiated by a letter to the Bank of Guam

from Arriola requesting release of the funds; that letter

described “consultation with my client Luis K. Pelisamen”

and bore Defendant’s signature on an acknowledgment and

consent.

[9] “It is settled law that intent to defraud may be estab-

lished by circumstantial evidence.” United States v. Rogers,

321 F.3d 1226, 1230 (9th Cir. 2003). The conclusion that

Defendant intended to defraud the estate is supported by suffi-

cient circumstantial evidence: the series of checks bearing his

and Arriola’s signatures, and phone records indicating that

Defendant and Arriola were frequently in touch by phone on

the days when many of the checks were written.

[10] Defendant’s conviction for conspiracy to commit wire

fraud required the jury to find: (1) an agreement to engage in

criminal activity, which need not be explicit; (2) one or more

overt acts taken to implement the agreement; and (3) requisite

intent to commit the underlying offense. See Sullivan, 522

F.3d at 976. Only one overt act in furtherance of the agree-

ment is required, and the jury found that Defendant had

engaged in “check issuance” in support of the conspiracy. The

telephone calls and joint signatures on the check are sufficient

evidence of an agreement between Defendant and Arriola

and, as noted above, of specific intent to defraud.

7

To confer jurisdiction under the wire fraud statute, the wire transfer

need not have been “an essential part of the . . . scheme” to defraud; it

“need only be made for the purpose of executing the scheme.” United

States v. Garner, 663 F.2d 834, 838 (9th Cir. 1981). Unlike the Bank of

Guam account, the Bank of Hawaii account was a checking account from

which Defendant and Arriola could freely withdraw money, and with-

drawals from the account began approximately two weeks after the

account was established. A rational trier of fact could have found that the

wire transfer establishing this account was made for the purpose of

advancing the fraudulent scheme.

UNITED STATES v. PELISAMEN 5029

4. Admission of evidence

Defendant argues that the district court erred in admitting

three pieces of evidence at trial: an audio/video recording of

a telephone interview with Defendant that was broadcast by

a local television station; an audio tape of a proceeding in the

Superior Court; and a chart showing the division of Vicenta’s

estate. We review the district court’s evidentiary rulings for

abuse of discretion. See United States v. Cherer, 513 F.3d

1150, 1157 (9th Cir. 2008).

[11] Defendant’s counsel objected at trial to the admission

of the television broadcast on the grounds that it was hearsay,

see Fed. R. Evid. 801, 802, and that it did not qualify under

the business records exception to the hearsay rule, see Fed. R.

Evid. 803(6), because the recording was not made in accor-

dance with the television station’s policy requiring that a sub-

ject give his consent for an interview to be recorded. The

district court did not abuse its discretion in overruling the

objection. The recording was admitted because it contained

Defendant’s statement to the effect that the money in the

estate was gone. That statement is not hearsay because it is

offered against Defendant and is his own statement. See Fed.

R. Evid. 801(d)(2). Because the statement is not hearsay, the

question of whether or not it qualifies under the “business

records” exception to the hearsay rule is irrelevant.

[12] The audiotape of the Superior Court proceeding was

presented as impeachment material, to show that Defendant,

contrary to his own assertion, had been present at a hearing

at which the Superior Court judge instructed him that he could

not use the funds in Rita’s estate to pay Arriola’s legal fees.

Defendant argues that the tape should not have been admitted

because the government had previously told his counsel that

it would not be used, and because the government should

have presented the tape in its case in chief. But counsel for the

government stated that the tape had been provided to Defen-

dant’s counsel prior to the trial with the promise that it would

5030 UNITED STATES v. PELISAMEN

not be used in the government’s case in chief, but with no

assurance that it would not be used as impeachment evidence.

Defendant does not dispute this account.

The government also presented a diagram entitled “Distri-

bution of the Estates,” which shows the heirs of Vicenta and

of Rita, the amounts to which each heir was entitled pursuant

to the Superior Court order, and the amounts actually received

by each heir. Defendant asserts that the diagram is a “genealo-

gy” and lacks foundation both on the issue of the family rela-

tions depicted therein and on the issue of the distribution of

funds listed therein.

[13] Defendant’s assertion that the diagram is intended as

a genealogy is unsustainable. In fact, the diagram depicts rela-

tions of heirship, not kinship, as determined by the Superior

Court. The Superior Court’s rulings on the question of

Vicenta’s and Rita’s heirs are sufficient foundation for the

diagram. As for the distribution of funds listed therein, the

government called an investigator for the Public Auditor’s

Office in Saipan to testify, based on examination of the docu-

mentary evidence, as to the amounts of money that were owed

to and actually received by the various heirs. The investiga-

tor’s testimony sets forth precisely the figures for the division

of Rita’s estate that are set forth on the diagram. See Fed. R.

Evid. 901(b)(1) (evidence may be authenticated by the testi-

mony of a witness with knowledge of the matter in question);

Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir.

2011) (noting that a document can be authenticated by numer-

ous “alternative means” (citations and footnote omitted));

United States v. Workinger, 90 F.3d 1409, 1415-16 (9th Cir.

1996). The numbers given for the division of Vicenta’s estate

are supported by documents filed with the Superior Court as

well as by other supporting documentation in the record.8

8

Although not pressed by the government, the diagram was also proba-

bly admissible as a summary under Fed. R. Evid. 1006.

UNITED STATES v. PELISAMEN 5031

III. Conclusion

For the reasons set forth above, the judgment of the district

court is AFFIRMED.