United States v. Mario Bernadel

FILED

NOT FOR PUBLICATION JUL 23 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-10119

Plaintiff - Appellee, D.C. No. 2:08-cr-00256-SMM-

v.

MEMORANDUM *

MARIO GERARD BERNADEL,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted June 13, 2012 San Francisco, California

Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.

Mario G. Bernadel appeals his conviction by jury of one count of conspiracy

to commit mail fraud, wire fraud, and bank fraud in violation of 18 U.S.C.

§§ 1349, 1341, 1343, and 1344 (Count 1), six counts of mail fraud in violation of

18 U.S.C. § 1341 (Counts 2–7), seven counts of wire fraud in violation of

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. U.S.C. § 1343 (Counts 8–14), one count of bank fraud in violation of 18 U.S.C.

§ 1344 (Count 15), and four counts of money laundering in…

MEMORANDUM *

Mario G. Bernadel appeals his conviction by jury of one count of conspiracy to commit mail fraud, wire fraud, and bank fraud in violation of 18 U.S.C. §§ 1349 , 1341, 1343, and 1344 (Count 1), six counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts 2-7), seven counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts 8-14), one count of bank fraud in violation of 18 U.S.C. § 1344 (Count 15), and four counts of money laundering in violation of 18 U.S.C. § 1957 (a) (Counts 18,19, 20, and 43). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

(1) The government presented sufficient evidence for a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find Bernadel guilty beyond a reasonable doubt of conspiracy to commit mail fraud, wire fraud, and bank fraud (Count 1). See United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010) (en banc). The evidence introduced at trial supported the conclusion that Bernadel worked together with Amanda Adorno, April Lucero, and other co-defendants to recruit straw buyers with good credit scores and falsify the information on the buyers’ loan applications…

concurring in part and dissenting in part:

Although I agree with the majority’s conclusions as to all other claims, I would reverse Bernadel’s conviction on Count 18. *30 A rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could not conclude beyond a reasonable doubt that Bernadel aided and abetted the “cash-back” transfer from Security Title to AMB Consulting that served as the basis for this money laundering count. See United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010) (en banc). Unlike Pinkerton liability, which focuses on the defendant’s role in the overall conspiracy, aiding and abetting liability depends on the defendant’s connection to the specific criminal act the defendant is alleged to have aided or abetted. See United States v. Bingham, 653 F.3d 983, 997 (9th Cir.2011). 1 There was, quite simply, no evidence that Bernadel associated himself with the specific transaction alleged in Count 18, participated in it as something he -wished to bring about, or sought by his actions to make it succeed. See United States v. Hungerford, 465 F.3d 1113, 1117 (9th Cir.2006).

. Contrary to the government's suggestion at oral…