NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

THOMAS GERARD MAUTONE, 

Defendant-Appellant.

No. 22-30180 

D.C. No. 6:17-cr-00237-MC-2 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Argued and Submitted April 5, 2024

Portland, Oregon

Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.

Thomas Mautone appeals from his jury conviction and sentence for four 

counts of wire fraud, in violation of 18 U.S.C. § 1343, arising from a fraudulent 

investment scheme. As the parties are familiar with the facts, we do not recount 

them here. We affirm.

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Douglas L. Rayes, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

APR 19 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

1. There is sufficient evidence to support Mautone’s convictions. “There is 

sufficient evidence to support a conviction if, reviewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” United States v. Shih, 

73 F.4th 1077, 1100 (9th Cir. 2023) (citation omitted).

Mautone argues that there is insufficient evidence that he had the requisite 

intent to defraud for all of his wire fraud convictions. For the specific intent for 

wire fraud, the defendant must intend to both “deceive and cheat” his victim. 

United States v. Miller, 953 F.3d 1095, 1101 (9th Cir. 2020). However, wire fraud 

does not require “an intent to permanently deprive the victim of property.” Id. at 

1103 n.10. Here, a rational trier of fact could have found that Mautone intended to 

deprive the victim of his money “at least momentarily.” Id.

For Count 7, Mautone also argues that there was insufficient evidence to 

hold him vicariously liable for an email sent by one of his co-schemers that lied to 

the victim about what happened to his money. A rational trier of fact could have 

found that such an email was an inevitable consequence of the scheme and that 

Mautone was still participating in the scheme at the time of the email. See United 

States v. Stapleton, 293 F.3d 1111, 1117 (9th Cir. 2002) (stating that “[t]he acts for 

which a defendant is vicariously liable must have occurred during the defendant’s 

knowing participation or must be an inevitable consequence of actions taken while 
3 

the defendant was a knowing participant”). 

2. Mautone’s challenge to the district court’s admission of evidence of his

prior wire fraud conviction fails. Mautone was previously convicted, via guilty 

plea, of wire fraud in violation of 18 U.S.C. § 1343 related to a purportedly riskfree high-yield investment scheme.

“We review the district court’s ‘[e]videntiary rulings admitting evidence of 

other acts under Federal Rule of Evidence 404(b) . . . for an abuse of discretion,’

although we review whether such evidence is relevant to the crime charged de 

novo.” United States v. Jimenez-Chaidez, 96 F.4th 1257, 1264 (9th Cir. 2024) 

(alterations in original) (quoting United States v. Rodriguez, 880 F.3d 1151, 1167 

(9th Cir. 2018)).

“Courts may not admit evidence of a defendant’s prior acts to suggest that 

the defendant is more likely guilty of the charged crime because of his past 

behavior (i.e., the ‘propensity inference’).” Id. (citing Fed. R. Evid. 404(b)(1)). 

“But the same evidence may be admissible for other purposes, including to prove 

knowledge and intent.” Id. (citing Fed. R. Evid. 404(b)(2)).

“To admit evidence of prior acts, courts proceed in two steps. First, the 

court determines whether the prior-act evidence is admissible for a proper purpose 

under Rule 404(b)(2).” Id. “Second, if the evidence is admissible for a nonpropensity purpose, the court determines whether the evidence nonetheless should 
4 

be excluded under Rule 403 as unduly prejudicial.” Id.

“Prior-acts evidence must satisfy four requirements to be admissible under 

Rule 404(b)(2): (1) it must tend to prove a material issue; (2) the prior acts must 

not be too remote in time; (3) there must be sufficient evidence for a reasonable 

jury to conclude that the defendant committed the prior acts; and (4) when used to 

show knowledge and intent, the prior acts must be sufficiently similar to the 

charged offense.” Id.

The second and third requirements are easily satisfied here. Mautone’s prior 

conviction occurred less than three years before the charged conduct in the instant 

case. And given that the government introduced evidence of Mautone’s indictment 

and judgment for the prior conviction, the jury could reasonably conclude that 

Mautone committed the prior wire fraud. 

“To satisfy the first and fourth requirements (relevance and similarity), we 

have emphasized that the government must show a ‘logical connection’ between 

the defendant’s knowledge obtained from commission of the prior acts and the 

knowledge at issue in the current case.” Id. at 1265 (quoting Rodriguez, 880 F.3d 

at 1167). “The logical connection must be supported by some propensity-free 

chain of reasoning.” Id. (internal quotation marks omitted) (quoting Rodriguez, 

880 F.3d at 1168).

As to the first requirement, Mautone’s prior conviction is relevant to show 
5 

his intent, knowledge, and lack of mistake in defrauding the victim, which 

Mautone disputed at trial. Mautone’s previous conviction for wire fraud related to 

a purportedly risk-free high-yield investment scheme tends to belie his assertion 

that he did not understand the spurious nature of the purportedly risk-free highyield investment scheme for which he was being prosecuted. In other words, the 

fact that Mautone had been previously convicted for engaging in similar fraud 

makes it more likely that he would recognize another such fraud. Based on his 

own past experiences, he would be more suspicious and have greater knowledge to 

recognize the common features of these purportedly risk-free high-yield 

investment schemes. Therefore, it is less likely that he would be fooled by the type 

of fraudulent investment scheme that he previously used to fool others. Thus, 

Mautone’s prior conviction made his knowledge that the instant scheme was 

fraudulent more probable, and therefore his prior conviction is relevant. 

Mautone’s prior conviction is also sufficiently similar to his charged conduct 

to satisfy the fourth requirement. Like the offense charged, Mautone’s prior 

conviction involved wire fraud under 18 U.S.C. § 1343 related to a purportedly 

risk-free high-yield investment scheme. That the mens rea for Mautone’s prior 

conviction was not identical to the offense charged does not make the prior 

conviction dissimilar. See United States v. Evans, 796 F.2d 264, 265 (9th Cir. 

1986) (per curiam) (affirming the admission of prior convictions under Rule 404(b) 
6 

in part because “the intent required in the prior crimes was similar to the intent 

required under the present charges” (emphasis added)). 

Thus, the “logical connection” between Mautone’s prior wire fraud 

conviction and the charged wire fraud “does not require propensity reasoning to 

establish knowledge and intent,” and the district court did not err under Rule

404(b)(2). Jimenez-Chaidez, 96 F.4th at 1265. 

Nor did the district court abuse its discretion in determining that, under Rule 

403, the probative value of Mautone’s prior conviction outweighed the prejudice. 

Moreover, the district court gave clear limiting instructions which lessened any 

prejudice, emphasizing that the prior conviction bore only “on intent, knowledge, 

or lack of mistake and for no other purpose.” 

Further, even if the district court erred by admitting Mautone’s prior 

conviction, any error was harmless. See United States v. Carpenter, 923 F.3d 

1172, 1181 (9th Cir. 2019). There was ample other evidence that Mautone 

knowingly acted with an intent to defraud, including his promises of outlandish 

rates of return, his false statements that the investment was already generating such 

returns for others, and his efforts to keep the victim from giving details about the 

supposed investment to bank employees (who likely would have recognized the 

investment as a fraud).

3. The district court did not abuse its discretion by denying Mautone’s 
7 

request for a continuance on the first day of trial to visit his mother, who was on 

end-of-life care and then died in the middle of the five-day trial. See Bearchild v. 

Cobban, 947 F.3d 1130, 1138 (9th Cir. 2020). To evaluate the denial of a 

continuance, we apply four factors first outlined in Flynt: (1) “the movant’s 

diligence in preparing for trial”; (2) “whether a continuance would have achieved 

the movant’s purpose”; (3) “the inconvenience of a continuance to the court and 

non-moving party”; and (4) “any resulting prejudice the movant may have suffered 

as a result of the denial.” Id. (citing United States v. Flynt, 756 F.2d 1352, 1359 

(9th Cir. 1985)). 

“Although we may assign varying weight to the first three of these factors 

depending on the circumstances, the last factor—prejudice resulting from the 

denial—is required before error will be assigned to the failure to grant a 

continuance.” Id. For prejudice, the focus is on the “extent to which the aggrieved 

party’s right to present his defense has been affected.” United States v. Kloehn, 

620 F.3d 1122, 1128 (9th Cir. 2010) (citation omitted). 

Mautone fails to show that he was prejudiced by the denial of a continuance. 

Mautone did not testify in his own defense, but he contends that the denial of a 

continuance prevented him from making an intelligent decision whether to testify 

because he was too distraught. However, the record does not show that Mautone’s 

mother’s end-of-life care and death affected his right to present his defense. 
8 

Mautone did not testify and there is no indication in the record that he was 

considering doing so. Given that, had Mautone testified, he could have been 

impeached with more details of his prior fraud conviction, we decline to speculate 

that he was seriously considering testifying.

The instant case therefore differs significantly from Kloehn, where we held 

that the district court abused its discretion by denying the defendant’s request to 

continue his trial for two days to allow him to see his dying son. Id. at 1125. The 

record there showed that the defendant was prejudiced because he was in the 

middle of testifying in his own defense when he unsuccessfully requested a 

continuance, and defense counsel stated on the record that the defendant’s

“overwhelming concern about his son’s condition prevented him from preparing 

his testimony the night before the final day on which he was to testify, and left him 

distracted and unable to concentrate during the testimony itself.” Id. at 1129.

4. Finally, Mautone’s sentence is not procedurally or substantively 

unreasonable. “In the sentencing context, ‘[w]e review the district court’s factual 

findings for clear error, its construction of the United States Sentencing Guidelines 

de novo, and its application of the Guidelines to the facts for abuse of discretion.’” 

United States v. Halamek, 5 F.4th 1081, 1087 (9th Cir. 2021) (alteration in 

original) (citation omitted). 
9 

Mautone challenges the district court’s denial of a reduction in his offense 

level for acceptance of responsibility under U.S.S.G. § 3E1.1(a). However, the 

district court did not clearly err in finding that Mautone had not accepted 

responsibility because Mautone would not acknowledge that he lied to get the 

victim to invest his money. See United States v. Luong, 965 F.3d 973, 990-91 (9th 

Cir. 2020). Contrary to Mautone’s contention, the court did not decline the 

reduction merely because he had exercised his constitutional right to go to trial. 

See id. at 991. 

Mautone also challenges the court’s imposing an enhancement because the 

offense “resulted in substantial financial hardship” to the victim. U.S.S.G. 

§ 2B1.1(b)(2)(A)(iii). But, Mautone fails to show that the court abused its 

discretion. The victim stated that, due to his investment loss, he had to sell his 

house, and he and his wife had to work past the age they planned to retire. See id.

§ 2B1.1 cmt. n.4(F). 

In addition, Mautone faults the court for giving him a two-level, rather than 

a three-level, minor-role reduction in his offense level. See id. § 3B1.2. Again, 

Mautone fails to show that the court abused its discretion. The court noted that 

Mautone had a more significant role than his co-defendants because he had already 

been involved in a similar scheme and he applied more pressure on the victim.
10 

Lastly, Mautone’s thirty-month sentence, far below his Guidelines range, 

was substantively reasonable. See 18 U.S.C. § 3553(a); United States v. Wilson, 8 

F.4th 970, 977-78 (9th Cir. 2021) (per curiam). 

AFFIRMED.