FILED

NOT FOR PUBLICATION

JUN 24 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50135

Plaintiff-Appellee, D.C. No. 8:12-cr-00128-AG-1

v.

MEMORANDUM*

LOUIS JOSEPH VADINO, AKA Edward Estrate, AKA Salvatore Filippone, AKA Louis J. Vadino,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted June 5, 2020 Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,** District Judge.

Defendant Louis Joseph Vadino appeals his convictions and sentences for:

(a) tax evasion in violation of 26 U.S.C. § 7201 (“Count 1”); (b) making a false

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. statement to a federal agency in violation of 18 U.S.C. § 1001(a) (“Count 2”); (c)

failing to appear in violation of 18 U.S.C. § 3146(a)(1), (b)(1)(A)(ii) (“Count 3”);

(d) conspiracy in violation of 18 U.S.C. § 371 (“Count 4”); (e) aiding and abetting

the making of false statements on passport applications in violation of 18 U.S.C.

§ 1542 (“Counts 5 and 6”); and (f) aiding and abetting aggravated identity theft in

violation of 18 U.S.C. § 1028A(a)(1) (“Counts 7 and 8”). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm in part and reverse in part.

1. Vadino argues that the superseding indictment should have been dismissed

with prejudice, because the district court unreasonably granted his codefendant an

“ends of justice” continuance of the trial date without sufficient justification, in

violation of the Speedy Trial Act. Because we do not find that the district court

clearly erred in determining that the continuance was an excludable period of delay

under 18 U.S.C. § 3161(h)(6) and (h)(7), we affirm the district court’s denial of

Vadino’s motion to dismiss the superseding indictment. See United States v.

Murillo, 288 F.3d 1126, 1133 (9th Cir. 2002); see also United States v. Lewis, 611

F.3d 1172, 1177 (9th Cir. 2010).

2. Vadino argues that the district court committed reversible error by refusing

to instruct the jury to assume that potentially relevant evidence destroyed by the

Government was favorable to his defense. “The rule governing sanctions for lost or

2 destroyed evidence” is set forth in United States v. Loud Hawk, 628 F.2d 1139,

1151–56 (9th Cir. 1979) (en banc) (Kennedy, J., concurring), reversed on other

grounds in United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008). United

States v. Robertson, 895 F.3d 1206, 1213 (9th Cir. 2018). The district court abused

its discretion by failing to apply Loud Hawk’s rule in determining the proper jury

instruction to remedy the Government’s destruction of evidence. See United States

v. Sivilla, 714 F.3d 1168, 1172–73 (9th Cir. 2013).

Given the district court’s error, “we must reverse unless there is a ‘fair

assurance’ of harmlessness or, stated otherwise, unless it is more probable than not

that the error did not materially affect the verdict.” United States v. Gonzalez-

Flores, 418 F.3d 1093, 1099 (9th Cir. 2005) (alteration adopted and emphasis

added) (quoting United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en

banc)). “The burden to show the harmlessness of the error is on the government,

and in the rare case in which we find ourselves in equipoise as to the harmlessness

of the error, reversal is required.” Id. Because the Government has failed to meet

its burden to show the harmlessness of the district court’s error, we must reverse

Vadino’s convictions for Counts 1 and 2.

3. We have the discretion “to vacate [and remand] all of the sentences imposed

by a district court when the district court erred with respect to one of the

3 sentences.” United States v. Evans-Martinez, 611 F.3d 635, 645 (9th Cir. 2010).

On remand, the district court has the authority to “resentence a defendant on each

count remanded by the appellate court, even if the district court had made no error

with respect to a particular count.” Id. We therefore vacate all of Vadino’s

sentences and remand for resentencing.

We AFFIRM Vadino’s convictions for Counts 3–8, but REVERSE and

VACATE his convictions for Counts 1 and 2 and REMAND both counts for a

new trial. We also VACATE all of Vadino’s sentences and REMAND for

resentencing.1

1 Because we remand for a new trial on Counts 1 and 2 and remand for resentencing, we do not address the remaining issues raised on appeal. 4

FILED

United States v. Vadino, Case No. 17-50135 JUN 24 2020 Rawlinson, Circuit Judge, concurring MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the conclusion that this case should be remanded for a retrial on

counts one and two. I reach this conclusion only because the district judge decided

that a destruction-of-evidence instruction was warranted. Having decided that an

instruction was warranted, the better practice would have been for the district court

to give the model jury instruction or make a record to support the given instruction.

See United States v. Hairston, 64 F.3d 491, 494 (9th Cir. 1995) (explaining that a

defendant is entitled to instructions that have “some foundation in the evidence”).

Unfortunately, the district court did neither. And the record does not establish

unequivocally that the defendant suffered any prejudice from the lack of an adverse

inference in his favor due to the government’s destruction of evidence. For that

reason, I concur in the conclusion that the convictions on counts one and two

cannot stand.

I also agree that under our precedent when one or more convictions is

invalidated, the sentence becomes unbundled and must be remanded for imposition

of a new sentence. See United States v. Ruiz-Alvarez, 211 F.3d 1181, 1182 (9th

Cir. 2000), as amended.

I fully concur in the majority’s discussion of the Speedy Trial Act challenge.

1