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United States v. Tamman

United States Court of Appeals, Ninth Circuit

April 3, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DAVID TAMMAN, Defendant-Appellant

Argued and Submitted November 21, 2014, Pasadena, California

Page 544

[Copyrighted Material Omitted]

Page 545

[Copyrighted Material Omitted]

Page 546

Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cr-01165-PSG-2. Philip S. Gutierrez, District Judge, Presiding.

AFFIRMED.

SUMMARY[**]

Criminal Law

The panel affirmed a conviction and sentence for conspiracy to obstruct justice, accessory after the fact to mail fraud and securities law violations, altering documents to influence a federal investigation, and aiding and abetting false testimony at an SEC deposition.

The panel held that the Sentencing Guidelines commentary prohibiting simultaneous application of the Broker-Dealer enhancement under U.S.S.G. § 2B1.1(b)(18)(A) (2012) (2014 version at U.S.S.G. § 2B1.1(b)(19)(A)) and the Special Skill enhancement under U.S.S.G. § 3B1.3 does not apply when the Broker-Dealer enhancement pertains specifically to a principal's offense and the Special Skill enhancement pertains to a defendant-accessory's offense.

The panel held that in calculating a loss figure greater than $20 million under U.S.S.G. § 2B1.1(b)(1), the district court correctly held that the full measure of the loss inflicted by a co-defendant's crime would have been foreseeable to the defendant despite his status as a mere accessory to that crime. The panel likewise held that in finding that the defendant's crime involved more than 50 victims under U.S.S.G. § 2B1.1(b)(2), the district court did not err by including victims of the co-defendant's crime, where the defendant did not have actual knowledge of those victims but the victims were reasonably foreseeable to him.

The panel held that the district court did not err in finding that the defendant, a practicing attorney and partner at a major law firm, was competent to waive his jury trial and that his waiver was knowing and intelligent.

The panel held that the district court did not plainly err (1) in excluding a non-lawyer's testimony reciting facts and the legal conclusion that the defendant acted in conformity with unidentified SEC rules and regulations and otherwise did not break the law; (2) in determining that the district court was capable of understanding, through a written proffer in a trial brief rather than in live testimony in this bench trial, an expert's opinion regarding the defendant's professional and ethical duties as an attorney; and (3) in admitting coconspirator nonhearsay testimony.

Alan M. Dershowitz (argued), Cambridge, Massachusetts; David Duncan, Zalkind Duncan & Bernstein LLP, Boston, Massachusetts; William J. Genego, Santa Monica, California, for Defendant-Appellant.

Paul G. Stern (argued) and Elana Shavit Artson, Assistant United States Attorney, Office of the United States Attorney, Los Angeles, California, for Plaintiff-Appellee.

Before: William A. Fletcher and Jay S. Bybee, Circuit Judges, and David Alan Ezra, District Judge.[*]

OPINION

Page 547

EZRA, District Judge.

Appellant David Tamman raises five issues in his appeal from the district court's judgment of conviction and sentence. We begin by addressing an issue of first impression, that is, whether the district court erred at sentencing by applying both the " Broker-Dealer" enhancement under United States Sentencing Guideline Manual (U.S.S.G.) § 2B1.1(b)(18)(A) (2012) (2014 version at U.S.S.G. § 2B1.1(b)(19)(A)) and the " Special Skill" enhancement under U.S.S.G. § 3B1.3. We hold that the Sentencing Guidelines commentary prohibiting simultaneous application of the Broker-Dealer and Special Skill enhancements does not apply when the Broker-Dealer enhancement pertains specifically to a principal's offense and the Special Skill enhancement pertains to a defendant-accessory's offense.

We then address Tamman's additional bases for appeal: his arguments that (1) his waiver of his right to a jury trial was not knowing, voluntary, and intelligent; (2) the district court erred in excluding two proffered experts; (3) the district court erred in admitting the statement of an alleged coconspirator; and (4) the district court erred in calculating loss and victim amounts, as required under the Sentencing Guidelines. We affirm the district court's conviction and sentence.

I. Factual and Procedural History

In 2003, Tamman, an attorney licensed in California, began performing work for NewPoint Financial Services, Inc., a company owned by John Farahi. To raise money through NewPoint, Farahi made private offerings of debentures. NewPoint did not register the debentures with the SEC, and while it took steps to make it appear that it was complying with federal securities law pertaining to unregistered securities--including hiring Tamman to prepare private placement memoranda (PPMs) for the debentures--it in fact regularly failed to disclose material information to investors, in violation of the securities laws.

In 2003, Tamman prepared a PPM that failed to disclose all material risks and facts pertaining to the investment. In 2004, when the National Association of Securities Dealers, now known as the Financial Industry Regulatory Authority (FINRA), began an examination of NewPoint that required disclosure of the 2003 PPM, Tamman made substantial changes to the 2003 PPM and ...


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