NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

SEAN P. FINN, 

Defendant-Appellant.

No. 20-10297 

D.C. Nos. 

2:13-cr-00439-KJD-VCF-4 

2:13-cr-00439-KJD-VCF 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, District Judge, Presiding

Argued and Submitted March 17, 2022

Las Vegas, Nevada

Before: D.M. FISHER,** BENNETT, and KOH, Circuit Judges.

Sean Finn appeals his convictions for wire fraud, securities fraud, and 

conspiracy, as well as the district court’s forfeiture and restitution orders. We have 

jurisdiction under 28 U.S.C. §§ 1291 and 3742 and affirm. Because the parties are 

familiar with the facts, we do not recount them here, except as necessary to provide 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable D. Michael Fisher, United States Circuit Judge for the 

U.S. Court of Appeals for the Third Circuit, sitting by designation.

FILED

APR 7 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

context to our ruling. 

Finn was a broker for the Swiss company Malom Group AG. Malom 

operated to defraud investors. Finn recruited victims to invest with Malom through 

false promises about Malom’s legitimacy, its access to hundreds of millions of 

dollars and euros, and the likelihood of huge returns. Malom obtained more than 

$6 million from the scheme from sixteen individual investors, with Finn directly 

procuring about $3.8 million from the eight individual investors listed in the 

indictment. Finn took $830,000 for himself from the scheme.

1. Finn maintains that the government selectively prosecuted him 

because of his gender. “To establish a claim of selective prosecution, a defendant 

must show both discriminatory effect and discriminatory purpose.” United States 

v. Sellers, 906 F.3d 848, 852 (9th Cir. 2018). A defendant “must demonstrate that 

(1) other similarly situated individuals have not been prosecuted and (2) his 

prosecution was based on an impermissible motive.” United States v. Sutcliffe, 505 

F.3d 944, 954 (9th Cir. 2007). Because Finn “has no viable selective prosecution 

claim under any standard of review,” this court need not determine whether to 

apply de novo or clear-error review. United States v. Culliton, 328 F.3d 1074, 

1080 (9th Cir. 2003) (per curiam). 

As to discriminatory effect, Finn argues that the government declined to 

prosecute three similarly situated women. But there was a material difference in 
3 

conduct between Finn and each of the three. One earned only $300,000 and 

cooperated; one participated in only one transaction with one victim; and one had a 

materially different role—processing escrow transactions. 

Finn also admits he “has no direct evidence of discriminatory purpose” and 

instead points only to circumstantial evidence—that the government did not 

prosecute women who he says were similarly situated. This is insufficient. Finn 

fails to satisfy both prongs of the selective-prosecution test.

2. Finn claims the district court should have dismissed the securities 

fraud counts because the indictment inadequately alleged that the transactions 

involved securities. This court reviews pretrial challenges to indictments de novo. 

United States v. Qazi, 975 F.3d 989, 992 (9th Cir. 2020). An indictment must 

contain a “plain, concise, and definite written statement of the essential facts 

constituting the offense charged” and “the elements of the offense charged.” 

United States v. Davis, 336 F.3d 920, 922 (9th Cir. 2003) (citations omitted). “In 

ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, 

the district court is bound by the four corners of the indictment” and “must accept 

the truth of the allegations in the indictment in analyzing whether a cognizable 

offense has been charged.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 

2002). The indictment here easily suffices, listing the necessary elements of 

securities fraud in language much like this circuit’s model jury instructions, 
4 

identifying the dates and victims for each charged investment contract, and 

sufficiently identifying an expectation of profits to be produced by the efforts of 

others.

3. Finn claims the district court abused its discretion in admitting 

evidence of his flight to Canada. This court reviews the district court’s evidentiary 

rulings for an abuse of discretion. United States v. Geston, 299 F.3d 1130, 1137 

(9th Cir. 2002). “Evidence of flight is generally admissible as evidence of 

consciousness of guilt and of guilt itself.” United States v. Harris, 792 F.2d 866, 

869 (9th Cir. 1986). “[F]light evidence is probative of a defendant’s guilt if four 

inferences are justified: (1) from the defendant’s behavior to flight; (2) from flight 

to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt 

concerning the crime charged; and (4) from consciousness of guilt concerning the 

crime charged to actual guilt of the crime charged.” United States v. King, 200 

F.3d 1207, 1215 (9th Cir. 1999) (citation and internal quotation marks omitted). 

Finn’s abrupt move to Canada and the facts surrounding and following it support 

this chain of inferences and the district court’s exercise of its discretion.

4. Finn claims the government violated discovery rules when it produced 

his laptop’s hard drive. This court reviews the district court’s discovery rulings for 

an abuse of discretion. United States v de Cruz, 82 F.3d 856, 866 (9th Cir. 1996). 

But as Finn acknowledges, the government produced the hard drive about one year
5 

before trial. The hard drive failed before trial (Finn did not know exactly when), 

and Finn asked the government to produce a full copy of its contents the Saturday 

before the Monday trial. By Sunday morning, the government had produced 

copies of most of the hard drive’s contents. Finn acknowledges the government 

“did everything they could to produce the copy of the hard drive they had made,” 

but claims “the timing during trial and format of discs from the drive made it 

impossible to search and locate particular files.” But Finn never identifies any 

discovery obligation the government failed to perform. And Finn neither lists any 

of the evidence that he would have used at trial had the hard drive never failed, nor 

explains how such evidence would have changed the result of the trial. And Finn 

did not provide this information to the district court. The district court did not 

abuse its discretion in rejecting Finn’s argument.

5. Finn filed an eve of trial motion to continue trial, based on the hard 

drive’s failure. “A district court has broad discretion to grant or deny a 

continuance,” and “[i]ts decision will not be disturbed on appeal absent clear abuse 

of that discretion.” United States v. Kloehn, 620 F.3d 1122, 1126–27 (9th Cir. 

2010) (citation and internal quotation marks omitted). He claims the district court 

abused its discretion in denying his motion. Finn never told the district court when 

the hard drive failed and acknowledged the government’s extensive efforts to 

produce a copy just after being notified of the failure. The district court did not 
6 

abuse its discretion in finding that granting the continuance would have caused 

extreme inconvenience. And the district court mitigated any prejudice by 

authorizing CJA funds to allow for additional review of the laptop’s contents 

during trial. The remaining relevant factors also support that the district court 

appropriately exercised its discretion. See United States v. Rivera-Guerrero, 426 

F.3d 1130, 1138–39 (9th Cir. 2005). And, as noted, Finn has identified no 

prejudice. 

6. Finn challenges the district court’s forfeiture order. This court 

reviews the district court’s interpretation of federal forfeiture law de novo and its 

factual findings for clear error. United States v. Alcaraz-Garcia, 79 F.3d 769, 772 

(9th Cir. 1996). First, Finn claims the forfeited amount—$830,000—exceeds the 

supposed $490,498 he received from the scheme. But the district court did not err 

in counting proceeds to Finn that came from victims of the scheme who did not 

testify and who were not listed in the indictment. There was ample evidence that 

Finn received $830,000.

Finn also argues that Honeycutt v. United States, 137 S. Ct. 1626 (2017), 

which considered a different criminal forfeiture statute, 21 U.S.C. § 853, forbids 

joint and several criminal forfeiture liability. Whether or not the same limitation 

applies to the forfeiture statute here, 18 U.S.C. § 981(a)(1)(C), Honeycutt forbade 

joint and several liability only “for property that [a] co-conspirator derived from 
7 

the crime but that the defendant himself did not acquire.” 137 S. Ct. at 1630 

(emphasis added). Finn also claims that he did not have proper notice because the 

indictment supposedly cited the wrong forfeiture statute. But the indictment cited 

the correct criminal forfeiture provisions.1

Finn claims that he had a right to a jury determination of the forfeiture 

amount. But this argument “is directly contradicted by binding Supreme Court 

precedent.” United States v. Wilkes, 744 F.3d 1101, 1109 (9th Cir. 2014); see 

Libretti v. United States, 516 U.S. 29, 48–49 (1995) (holding that there is no Sixth 

Amendment right to a jury verdict in a criminal forfeiture proceeding). Finn’s 

argument that the forfeiture order violates the Double Jeopardy Clause is also 

foreclosed, as the two sanctions are distinct. “[F]orfeiture and restitution serve 

different purposes or goals. Forfeiture is imposed as punishment for a crime; 

1 The indictment included two forfeiture allegations, one for the wire fraud counts 

and the other for the securities fraud counts. Both cite 18 U.S.C. § 981(a)(1)(C) 

and 28 U.S.C. § 2461(c). Finn argues that the government should have cited 

§ 981(a)(1)(D), not § 981(a)(1)(C), because subsection (D) specifically mentions 

the wire fraud statute. But through a chain of citations, so does subsection (C). As 

the government explains, subsection (C) authorizes the civil forfeiture of property 

traceable to “any offense constituting ‘specified unlawful activity’ (as defined in 

section 1956(c)(7) of this title), or a conspiracy to commit such offense.” Such 

“specified unlawful activity” includes “any act or activity constituting an offense 

listed in section 1961(1) of this title except an act which is indictable under 

subchapter II of chapter 53 of title 31.” 18 U.S.C. § 1956(c)(7)(A). And § 1961(1) 

lists “any act which is indictable under . . . section 1343 (relating to wire fraud)” 

and “any offense involving . . . fraud in the sale of securities.”
8 

restitution makes the victim whole again.” United States v. Davis, 706 F.3d 1081, 

1083 (9th Cir. 2013) (citation omitted). 

Finally, Finn argues that 18 U.S.C. § 981 does not authorize the entry of 

personal money judgments. The statute authorizes the forfeiture of “[a]ny 

property, real or personal, involved in” the offense. 18 U.S.C. § 981(a)(1)(A). 

Finn claims this language covers only the forfeiture of specific “property that 

exists” rather than “a personal judgment enforceable against money and property 

the government has not even shown to exist.” But the other forfeiture statute cited 

in the indictment, 28 U.S.C. § 2461(c), authorizes forfeiture “pursuant to the 

Federal Rules of Criminal Procedure.” And Rule 32.2 “makes clear that, at least 

where the proceeds of the criminal activity are money, the government may seek a 

money judgment as a form of criminal forfeiture.” United States v. Newman, 659 

F.3d 1235, 1242 (9th Cir. 2011), abrogated on other grounds by Honeycutt, 137 S. 

Ct. 1626. And this court has held that 21 U.S.C. § 853’s authorization of the 

criminal forfeiture of “property” allows for money judgments. United States v. 

Casey, 444 F.3d 1071, 1075–76 (9th Cir. 2006) (citing Rule 32.2). 

7. Finn challenges the $6.075 million restitution order. This court 

reviews the legality of a restitution order de novo, the amount of restitution for 

abuse of discretion, and the underlying factual findings for clear error. United 

States v. Peterson, 538 F.3d 1064, 1074 (9th Cir. 2008). Finn claims the district 
9 

court erred in holding him jointly and severally liable with his co-defendants; that 

the restitution amount should not have exceeded $5.65 million; that he had a right 

to have a jury determine the restitution amount; and that the imposition of both 

forfeiture and restitution violates the Double Jeopardy Clause. We have already 

rejected Finn’s Double Jeopardy Clause argument.

Federal law authorizes joint and several restitution liability here.2 And the 

district court did not abuse its discretion in imposing on Finn joint and several 

liability for the entire amount of the loss caused by the Malom scheme.3 Finn 

2 The Mandatory Victims Restitution Act (“MVRA”) applies to “offense[s] against 

property under this title . . . including any offense committed by fraud or deceit.” 

18 U.S.C. § 3663A(c)(1)(A)(ii). It generally requires district courts to order 

restitution to each victim in the full amount of the victim’s losses, without 

consideration of the defendant’s financial condition. Id. §§ 3663A(a)(1), 

3664(f)(1)(A); see United States v. Matsumaru, 244 F.3d 1092, 1108 (9th Cir. 

2001). The MVRA defines “victim” broadly as “a person directly and proximately 

harmed as a result of the commission of an offense for which restitution may be 

ordered including, in the case of an offense that involves as an element a scheme, 

conspiracy, or pattern of criminal activity, any person directly harmed by the 

defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” 

18 U.S.C. § 3663A(a)(2). And when a district court “finds that more than 1 

defendant has contributed to the loss of a victim, the court may make each 

defendant liable for payment of the full amount of restitution or may apportion 

liability among the defendants to reflect the level of contribution to the victim’s 

loss and economic circumstances of each defendant.” Id. § 3664(h).

3 Finn was convicted of wire fraud, which requires proof of a “scheme or artifice to 

defraud,” and the corresponding conspiracy. 18 U.S.C. §§ 371, 1343. That 

offense is one “for which restitution may be ordered for all persons directly harmed 

by the entire scheme. Restitution is thus not confined to harm caused by the 

particular offenses of which [the defendant] was convicted.” United States v. 

Booth, 309 F.3d 566, 576 (9th Cir. 2002) (citation omitted).
10 

played a major role in the scheme, and the district court appropriately put 

compensating the victims first.

Finn claims restitution is limited to $5.65 million because that amount was 

stipulated to and ordered in a co-defendant’s case. He argues that principles of res 

judicata and issue preclusion prevent the government from “re-litigating” the issue 

here and seeking more from him than from his co-defendant. Finn appears to be 

referencing unilateral or non-mutual collateral estoppel, which “is a version of the 

doctrine that arises when a plaintiff seeks to estop a defendant from relitigating an 

issue which the defendant previously litigated and lost against another plaintiff.” 

Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 775 (9th Cir. 2003). 

“Although unilateral collateral estoppel exists in the civil arena, [courts] do not 

apply it in criminal cases.” United States v. Valdez-Soto, 31 F.3d 1467, 1476 (9th 

Cir. 1994); see Standefer v. United States, 447 U.S. 10, 21–24 (1980). The district 

court was free to consider or ignore the prior restitution order. 

Finally, Finn’s argument that he had a right to have a jury determine the 

restitution amount is foreclosed by precedent. See United States v. Green, 722 

F.3d 1146, 1151 (9th Cir. 2013).

AFFIRMED.