141 F3d 1182 United States of America v. Shleifer

141 F.3d 1182

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Thomas Mark SHLEIFER, Defendant-Appellant.

No. 97-10256.
D.C. No. CR-S-95-222-PMP.

United States Court of Appeals,
Ninth Circuit.

.
Argued and Submitted March 10, 1998.
Decided March 24, 1998.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Appeal from the United States District Court for the District of Nevada Phillip M. Pro, District Judge, Presiding.

2

Before CHOY and REINHARDT, Circuit Judges, and RESTANI, United States Court of International Trade Judge.**

3

MEMORANDUM*

4

Thomas Mark Shleifer appeals his conviction and sentence for two counts of mail fraud. Shleifer contends that the government failed to present sufficient evidence to support his conviction and also impermissibly vouched for a principal witness during closing arguments. He also contends that the district court erred in enhancing the sentence based on the amount the insurance company paid to the accident victims and for obstruction of justice.

5

Viewing the evidence in the light most favorable to the government, it was sufficient to support the convictions. The government's principal witness, Larry Hogden, testified that he told Shleifer about the planned staged car accident and that Shleifer agreed to treat the "victims" as well as overbill for these treatments. Both Shleifer's medical records and the taped conversations between him and Hogden support this testimony.

6

As to the alleged vouching, during her closing argument, Shleifer's counsel questioned why the government had not called any agents to testify as to what Hogden had told them about Shleifer. The prosecutor objected, arguing that he could only do so as rehabilitating evidence, which he could not present unless defense counsel "had questioned the timing." Then, during rebuttal argument, the prosecutor referred to the previous exchange and told the jury twice that it should draw no conclusions from the fact that no FBI agent had testified. Although we have some doubts as to their propriety, we do not find that the prosecutor's remarks were of a nature that would " 'seriously affect the fairness, integrity or public reputation of judicial proceedings.' " U.S. v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting U.S. v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). Thus, they do not constitute plain error.

7

Shleifer next contends that the district court erred in enhancing his sentence by four levels based on the finding that the loss was more than $20,000. See U.S. Sentencing Guidelines Manual § 2F1.1(b)(1)(E). The district court arrived at this finding by adding the amount the insurance company paid to Shleifer directly ($4140) to the amount it paid in settlement to the accident victims for bodily injury ($31,282.94). It was not error to find that the scheme described in the indictment included not only Shleifer's billing the insurance company but also the "victims" ' filing a claim with them. It was certainly foreseeable to Shleifer that victims of a staged accident would file a claim with their insurance company and that his reports and treatments would provide a basis for a settlement.

8

Finally, Shleifer contends that the district court erred in enhancing his sentence for obstruction of justice based on its finding that he gave false testimony when he denied knowing that the accident was staged. For the same reasons that there was sufficient evidence to support the verdict, it was not clear error for the district judge to make this finding. Accordingly, we affirm the enhancement for obstruction of justice.

AFFIRMED

**

Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3