NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 16 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10415

Plaintiff-Appellee, D.C. No. 3:17-cr-00180-RS-1

v.

MEMORANDUM*

APRIL DIANE MYRES,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Argued and Submitted January 14, 2021 San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and LASNIK,** District Judge.

April Myres was convicted by a jury for mail fraud, in violation of 18 U.S.C.

§ 1341, and wire fraud, in violation of 18 U.S.C. § 1343. Myres’ convictions

stemmed from an insurance claim she filed after she reported a burglary at her home.

Myres was sentenced to fourteen months’ imprisonment. On appeal, Myres argues

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. that the district court made four errors in evidentiary rulings at trial and that the court

erred in sentencing. Because the parties are familiar with the facts, we do not recount

them in detail, except as necessary to provide context to our ruling. We have

jurisdiction under 18 U.S.C. § 1291.

I. Evidentiary Admissions at Trial

We review evidentiary rulings to admit or exclude evidence for abuse of

discretion. United States v. Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016). Where an

evidentiary error has occurred in a criminal prosecution, this Court reviews de novo

whether the error “rises to the level of a constitutional violation.” United States v.

Haischer, 780 F.3d 1277, 1281 (9th Cir. 2015). We conclude that the district court

properly denied Myres’ evidentiary objections and constitutional challenges.

First, the district court did not commit constitutional error in allowing

testimony from an insurance claims adjuster regarding his impression of Myres’

response to a request that federal law enforcement agents made during a visit to

Myres’ home. Myres contends that admitting this testimony amounted to

constitutional error based on United States v. Prescott, 581 F.2d 1343 (9th Cir.

1978). We held in Prescott that a “passive refusal to consent to a warrantless search

is privileged conduct which cannot be considered as evidence of criminal

wrongdoing.” Prescott, 581 F.2d at 1351. Unlike testimony regarding law

enforcement’s breaking down of a door in Prescott, which we determined “would

2 lead to the conclusion that [the defendant] had refused permission to enter,” id. at

1353, testimony about Myres’ comment to the agents that “she didn’t have time” for

“something” they had asked her, does not lead to the conclusion that Myres refused

a warrantless search. We decline to extend Prescott to testimony so vague that the

jury could not reasonably connect it to constitutionally protected conduct.

Even if, arguendo, the testimony in question were considered a comment on

the exercise of Myres’ Fourth Amendment rights, the testimony was admitted for a

proper purpose: to undermine Myres’ theme that she was the victim of a burglary.

See Leavitt v. Arave, 383 F.3d 809, 828 (9th Cir. 2004) (holding that a prosecutor

was entitled to question a defendant’s theme of cooperation by showing that

defendant was in fact uncooperative).

Second, the district court did not commit constitutional error in allowing

testimony from a law enforcement officer regarding Myres not responding to the

officer’s calls after she had invoked her right to counsel. Myres relies upon two cases

that concern comments referencing a defendant’s retention of counsel. See Bruno v.

Rushen, 721 F.2d 1193 (9th Cir. 1983); United States v. Kallin, 50 F.3d 689 (9th Cir.

1995). The witness testimony Myres takes issue with, however, does not contain any

comments regarding Myres’ retention of counsel. Moreover, the government did not

elicit testimony regarding Myres retaining an attorney, and the government never

implied that retaining an attorney was a sign of guilt. Cf. Kallin, 50 F.3d at 693–94;

3 Bruno, 721 F.2d at 1194–95. Therefore, the district court did not err in admitting this

testimony.

Third, the district court did not abuse its discretion in admitting a recording of

a jail call between Myres and her ex-boyfriend, Antoine Fowler. A district court has

“‘wide latitude’ in determining admissibility of evidence under Rule 403 . . . and its

decision is accorded considerable deference.” United States v. Joetzki, 952 F.2d

1090, 1094 (9th Cir. 1991) (citation omitted). Myres made statements in the call that

tended to show that she was aware that Fowler faced danger upon his release from

jail. These statements had probative value because they made it more likely that

Myres knew Fowler would seek out a firearm for protection, which was relevant to

the charges the government was trying to prove. Although other witness testimony

established that Fowler was a known “snitch,” it did not get as directly at Myres’

expectation that Fowler would face danger upon his release. Myres argued that the

call was unfairly prejudicial, but when viewed in the context of Fowler’s own

behavior toward Myres, the call did not unfairly vilify Myres.

Fourth, the district court did not abuse its discretion when it permitted

testimony regarding a court order prohibiting Myres from possessing a firearm. In

particular, the testimony concerned Myres’ employer, the San Francisco Sheriff’s

Department (SFSD), repossessing a firearm from Myres as a result of a court order.

This testimony was probative because it tended to show that Myres was aware she

4 was not the owner of the firearm; rather, she understood that SFSD was the owner.

Given that Myres wrote on her second proof of loss to her insurer that SFSD

equipment became hers after four years of service, her understanding of the firearm’s

ownership was relevant to evaluating her intent in making this statement.

Additionally, the likelihood of unfair prejudice was slight because the reference to

the court order was brief, and it was unlikely to provoke an emotional response

where the jury learned that the confiscated firearm was eventually returned to Myres.

See United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir. 1993) (concluding that a

“brief reference to [the defendant’s] gang membership was not likely to provoke an

emotional response in the jury”).

The district court did not commit constitutional error, and it acted within its

discretion to admit the evidence Myres challenges on appeal. While the district court

faced challenging legal questions, it issued thoughtful rulings to ensure Myres

received a fair trial. See Ross v. Oklahoma, 487 U.S. 81, 91 (1988) (observing that

the “Constitution entitles a criminal defendant to a fair trial, not a perfect one”).

II. Sentencing

We review the district court’s interpretation of the Guidelines issued by the

United Sentencing Commission (the Guidelines) de novo, application of the

Guidelines to the facts for abuse of discretion, and factual findings for clear error.

United States v. Staten, 466 F.3d 708, 713 (9th Cir. 2006). We conclude that the

5 district court erred when it failed to make findings on the record regarding Myres’

intent with respect to the amount of intended loss.

When a defendant has committed fraud, the base offense level increases

consistent with the amount of “loss.” See U.S.S.G. § 2B1.1. The Guidelines define

“loss” as “the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1, cmt. n.3

(A). The amount of “intended loss” is equivalent to “the pecuniary harm that the

defendant purposely sought to inflict.”1 U.S.S.G. § 2B1.1, cmt. n.3 (A)(ii). The

government must “prove the loss by a preponderance of the evidence.” United States

v. Walter-Eze, 869 F.3d 891, 912 (9th Cir. 2017) (quoting United States v. Torlai,

728 F.3d 932, 946 n.13 (9th Cir. 2013)). A district court may “impose sentencing

enhancements only for losses that ‘resulted from’ the defendant’s fraud.” United

States v. Berger, 587 F.3d 1038, 1043 (9th Cir. 2009) (quoting United States v.

Hicks, 217 F.3d 1038, 1048 (9th Cir. 2000)).

The district court’s responses to defense counsel during sentencing suggested

that the court considered Myres’ motives irrelevant, and the court did not provide

explicit reasoning or factual findings to support its conclusion that the intended loss

was the entire claim. Accordingly, we must vacate the sentence and remand for the

1 The amount of intended loss also “includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).” U.S.S.G. § 2B1.1, cmt. n.3 (A)(ii).

6 district court to explain fully its reasoning. See United States v. Jimenez-Ortega, 472

F.3d 1102 (2007) (remanding where sentencing court failed to make a finding about

the materiality of defendant’s false statements).

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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