FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30541

Plaintiff-Appellee, D.C. No.

v.  CR-01-00108-05-

BJR STEVEN CRAIG MORELAND,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Western District of Washington

Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted May 9, 2007

Submission Withdrawn May 25, 2007

Resubmitted December 5, 2007

Seattle, Washington

Filed December 12, 2007

Before: Procter Hug, Jr., M. Margaret McKeown, and

William Fletcher, Circuit Judges.

Opinion by Judge Hug

16329
COUNSEL

Jordan Gross, Yarmuth Wilsdon Calfo PLLC, Seattle, Washington, for the defendant-appellant. 

Andrew C. Friedman, Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee. 

OPINION

HUG, Circuit Judge: 

For his participation in a fraudulent pyramid scheme,

defendant-appellant Steven Moreland was convicted of mail

and wire fraud, money laundering, and conspiracy to commit

mail and wire fraud and money laundering. On remand, the

district court imposed a revised sentence of 18 years in prison

and ordered Moreland to pay restitution to the victims in the

amount of slightly over $36 million. Moreland appeals his

conviction on the grounds that he involuntarily waived his

right to counsel and received ineffective assistance of counsel,

the district court erred in not granting an adequate continuance, the prosecution committed misconduct resulting in a

violation of his due process rights, and insufficiency of the

evidence. Moreland also appeals his sentence on the basis that

it is unreasonable under 18 U.S.C. § 3553(a). Finally, Moreland appeals the imposition of restitution because the district

court failed to comply with the time frame outlined in

§ 3664(d)(5) of the Mandatory Victims Restitution Act. We

find that none of Moreland’s arguments warrants reversal and,

thus, we affirm.

16334 UNITED STATES v. MORELAND
I.

Moreland participated in an enormous pyramid scheme

that, from November 1997 until May 2000, swindled approximately 2,500 people out of more than $73 million. Many of

the victims in this case were of retirement age and invested

much or all of their savings in the scheme, which promised

astronomical returns. In reality, Moreland and his associates

were conducting a massive fraud in which a portion of the

funds from later investors were used to pay the promised

returns of some earlier investors. Most earlier investors were

convinced to roll their fictional returns over into supposed

new investment opportunities. The funds not used to repay

earlier investors were paid to the operators of the scheme or

squandered on unsound financial misadventures. 

The federal government finally shut down the scheme on

May 10, 2000, by executing search warrants at the home of

John Wayne Zidar, the mastermind and leader of the scheme,

and the business offices in Washington and Arizona from

which the scheme was conducted. On the day of the searches,

Moreland fled with his family to Costa Rica, where he

planned to stay in order to avoid capture. Although his wife

refused to stay in Costa Rica, necessitating his return to the

United States, Moreland went back to Costa Rica in August

2000. He took with him all of his documents relating to the

scheme in order to prevent the government from obtaining the

records. After supposedly discovering the fraudulent nature of

the enterprise for the first time while in Costa Rica, Moreland

continued transferring money from accounts containing victims’ investment funds into his own accounts to pay his salary

and personal expenses. 

Moreland and his associates were indicted on March 28,

2001. Moreland eventually surrendered on April 3, 2001, in

Tyler, Texas, at which time he was arrested. While driving

from Dallas to Tyler to surrender, Moreland stopped about

half way between in the town of Canton and discarded his

UNITED STATES v. MORELAND 16335
laptop computer in a dumpster behind a Dairy Queen near the

highway. 

At his initial appearance in the Western District of Washington on April 20, 2001, Moreland indicated his desire to

represent himself. Upon the prosecution’s motion, a magistrate judge conducted a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), on April 26 to determine whether

Moreland should be permitted to waive his right to counsel.

The magistrate judge permitted Moreland to represent himself

but concluded that standby counsel should assist him. Ralph

Hurvitz was then appointed to facilitate Moreland’s defense.

The district judge conducted a second Faretta hearing on June

5, at the request of the prosecution, at which time she urged

Moreland not to represent himself. Nonetheless, the district

judge concluded that Moreland had knowingly and intelligently waived his right to counsel and permitted him to continue representing himself. The district judge further directed

Hurvitz to continue acting as standby counsel. 

In a second superceding indictment issued on January 8,

2002, Moreland was charged with ten counts of mail fraud in

violation of 18 U.S.C. § 1341, six counts of wire fraud in violation of 18 U.S.C. § 1343, four counts of promotion money

laundering in violation of 18 U.S.C. § 1956(a)(1), four counts

of concealment money laundering involving foreign transfers

in violation of 18 U.S.C. § 1956(a)(2), conspiracy to commit

mail and wire fraud in violation of 18 U.S.C. § 371, and conspiracy to commit money laundering in violation of 18 U.S.C.

§ 1956(h). The second superceding indictment also contained

a criminal forfeiture count relating to numerous items of both

real and personal property in the possession of the defendants

as well as funds seized from bank accounts in the United

States, Samoa, Costa Rica, and the Bahamas. 

On April 23, 2002, Moreland filed a motion to have a lawyer appointed to represent him. The district court held a hearing on the motion on May 6, 2002, and Hurvitz was appointed

16336 UNITED STATES v. MORELAND
to represent him because of his familiarity with the case. The

trial was set for June 10, 2002. Hurvitz stated that he wanted

additional time to prepare, but Moreland opposed a continuance. The district court granted a continuance of two weeks

until June 24, 2002. Hurvitz served as Moreland’s counsel

during the trial. 

On August 14, 2002, after a 34-day trial, a jury found

Moreland guilty on three counts of mail fraud, three counts of

wire fraud, two counts of promotion money laundering, four

counts of concealment money laundering involving foreign

transfers, and both conspiracy charges. Zidar was also found

guilty on all 25 counts on which he was charged and sentenced to 30 years in prison. United States v. Zidar, 178 Fed.

Appx. 673, *1 (9th Cir. 2006) 

In determining Moreland’s sentence, the district court

adopted the Sentencing Guidelines calculation set forth in the

original Presentence Report. Accordingly, the district court

began with a base offense level of 43 and criminal history category I, which resulted in a sentence range of life imprisonment. The district court departed downward three points due

to Moreland’s mental state, resulting in a base offense level

of 40 and a criminal history category of I. The applicable sentence range, under the 1998 edition1

 of the U.S. Sentencing

Commission Guidelines Manual, was 292-365 months in

prison. The district court sentenced Moreland to 292 months

in prison, the bottom of the sentencing range, on August 22,

2003. At the prosecution’s request, the district court also

deferred the issue of restitution pending a determination by a

receiver in a related civil case, brought by the U.S. Securities

and Exchange Commission, of the identities of victims and

the amounts of their losses. The district court’s order explicitly stated that it would “enter a subsequent order identifying

the payees and the amount of restitution owed to each payee.”

1The 1998 edition was used to avoid a possible violation of the ex post

facto clause. 

UNITED STATES v. MORELAND 16337
Moreland did not object to the district court’s deferral of the

restitution determination. 

Moreland then appealed his conviction and sentence, but

not the district court’s deferral of restitution, to this court. Following the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), a prior panel of this court remanded

for resentencing under the now-advisory Sentencing Guidelines on December 14, 2004. The remand order did not

address the substantive issues raised in Moreland’s appeal. 

On remand, the district court ordered the preparation of a

Revised Presentence Report. In March 2005, while the

Revised Presentence Report was being prepared, the receiver

completed its task of identifying victims and the amounts of

their losses. The government then submitted its Revised Presentence Report on November 1, 2005. The Revised Presentence Report, which contained the list of victims and losses,

recommended that the district court adopt the same Sentencing Guidelines calculation as in the original sentence and

order restitution in the amount of $36,031,772.84 pursuant to

18 U.S.C. § 3663A. 

The district court held a sentencing hearing on November

7, 2005, at which time the district court adopted the Sentencing Guidelines range recommended in the Revised Presentence Report and found by clear and convincing evidence the

factors on which the recommendation was based. In light of

United States v. Booker, 543 U.S. 220 (2005), the district

court examined the sentencing factors listed in 18 U.S.C.

§ 3553(a) and reduced Moreland’s sentence to 216 months

(18 years) in prison. The district court also imposed

$36,031,772.84 in restitution. Moreland appealed his conviction as well as the revised sentence and restitution order on

November 10, 2005.

II.

Moreland appeals his conviction by alleging denial of his

right to counsel, ineffective assistance of counsel, improper

16338 UNITED STATES v. MORELAND
failure of the district court to grant a continuance, prosecutorial misconduct, and insufficiency of the evidence. 

A.

[1] First, Moreland argues that he involuntarily waived his

right to counsel. The Sixth Amendment of the U.S. Constitution guarantees that a person brought to trial in federal court

“must be afforded the right to the assistance of counsel before

he can be validly convicted and punished by imprisonment.”

Faretta, 422 U.S. at 807. A criminal defendant may waive the

right to counsel and represent himself. Id. at 819-20. When a

defendant requests to proceed pro se, a district court may only

grant the request after determining that the defendant “knowingly and intelligently” waived the right to counsel. Id. at 835.

Once a district court has determined that a defendant’s waiver

of his right to counsel is knowing and intelligent, it may

appoint standby or “advisory” counsel to assist the pro se

defendant without infringing on his right to selfrepresentation. McKaskle v. Wiggins, 465 U.S. 168, 176-77

(1984). At the same time, a defendant who waives his right

to counsel does not have a right to advisory counsel. United

States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996); United

States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994).

Generally, the role of standby counsel is vague and undefined,

and the defendant must retain control over his case. McKaskle, 465 U.S. at 177-78. 

The district court conducted two separate Faretta hearings

in this case and, after each hearing, concluded that Moreland’s requested waiver was both knowing and intelligent.

The district court also appointed standby counsel to assist

Moreland. Moreland argues on appeal, however, that his

waiver of his right to counsel was conditioned on assurances

from the district court regarding the level of assistance he

could expect to receive from standby counsel. Those assurances were not satisfied, according to Moreland, because

standby counsel did not provide as much assistance as MoreUNITED STATES v. MORELAND 16339
land expected. For that reason, Moreland argues that his

waiver of his right to counsel was not voluntary.2

The validity of a Faretta waiver is a mixed question of law

and fact reviewed de novo. United States v. Erskine, 355 F.3d

1161, 1166 (9th Cir. 2004). 

[2] The record undermines Moreland’s assertion that his

waiver was conditioned on specific assurances from the district court regarding the level of participation he could expect

from standby counsel. During the second Faretta hearing,

which the prosecution requested after learning that Moreland

was receiving assistance with his case from Donald Mueller,

a former co-participant in the pyramid scheme who was not

licensed to practice law and who was scheduled to appear as

a witness on Moreland’s behalf, the district judge engaged in

a lengthy discussion with Moreland, ensuring that he understood the charges against him and the disadvantages of representing himself. Indeed, the district judge “strongly urge[d]”

Moreland to obtain counsel. Nevertheless, Moreland insisted

on representing himself. The district judge concluded that his

waiver was voluntary and directed Hurvitz to continue serving

as standby counsel. In continuing Hurvitz’s participation as

standby counsel, the district judge did not promise any specific degree of assistance. Rather, the district judge explicitly

noted that the role of standby counsel was undefined. As the

2Moreland relies on Milton v. Morris, 767 F.2d 1443 (9th Cir. 1985),

for the proposition that a defendant who waives his right to counsel based

on an understanding that he will have assistance with his pro se defense

has not knowingly and intelligently waived his right to counsel under

Faretta. The two cases are not similar. In Milton, the district court and

prison officials blocked the defendant’s access to legal materials, telephone use, investigators, couriers, and witness. Id. at 1444-45. Here,

Moreland had more than ample access to the means necessary to prepare

his defense. Moreover, Moreland received assistance from standby counsel, just not the degree of assistance he later decided he wanted. Additionally, the district court repeatedly advised Moreland to withdraw his waiver

and request representation, but he refused to do so. When Moreland eventually did withdraw his waiver, the district court appointed counsel. 

16340 UNITED STATES v. MORELAND
district judge explained: “So his position in this case to a large

extent is determined by your position in the case. . . . It’s hard

to tell now what’s going to happen. Cases develop often with

a life of their own. . . . But what his role is to a large extent

will be determined on how you use him.” The district judge

went on to make clear that Moreland and Hurvitz would have

to “play this by ear.” That explanation of the role of standby

counsel was not specific. Thus, contrary to Moreland’s contention, the district court made no assurances upon which he

could have reasonably conditioned his waiver of counsel. 

Furthermore, if Moreland did not believe that standby

counsel was living up to his expectations, he had ample

opportunity to waive his right to self-representation and

request the district court to appoint full counsel. In fact, after

the second Faretta hearing, Moreland began complaining

about Hurvitz’s representation almost immediately. Among

other things, Moreland accused Hurvitz of refusing to familiarize himself with the case, review the evidence, assist with

discovery, and “offer any assistance beyond filing a few

motions.” In September 2001, Moreland requested to have

Hurvitz replaced by “non-representational counsel”—that is,

Mueller. The district judge denied Moreland’s request, stating

that although the role of standby counsel is “vague and undefined, the court instructed Hurvitz to fill that role as appropriately as possible under the circumstances.” The district judge

further stated that “it was the court’s understanding during the

Faretta hearing that Moreland expected little more from Hurvitz than fulfillment of basic administrative responsibilities.”

The district judge further explained that “based on representations from Moreland that he wishes to represent himself, Hurvitz is prohibited from contributing beyond a basic level to

Moreland’s case, for risk of encroaching on Moreland’s

Faretta rights.” The district court went on to state that “Moreland is requesting, and Hurvitz is resisting, more participation

than courts creating the standby counsel role anticipated.”

Consequently, the district court clearly informed Moreland

well in advance of trial what he could and could not expect

UNITED STATES v. MORELAND 16341
from standby counsel. If Moreland’s waiver of his right to

counsel was truly conditioned on his expectation that Hurvitz

would play a larger role in his defense, he could have withdrawn his waiver and asked the district court to appoint full

counsel at that time. He did not do so. 

Instead of waiving his right to self-representation, Moreland filed additional pleadings in October and December

2001, in which he suggested that the district court was unlawfully preventing Mueller from representing him. The district

court again admonished Moreland that Mueller would not be

permitted to represent him. The district court also informed

Moreland that, unless he was willing to allow Hurvitz to represent him, he was not entitled to greater assistance than Hurvitz was already providing. Again, Moreland declined to

waive his right to self-representation and have full counsel

appointed. Despite Moreland’s ostensible disappointment

with Hurvitz’s performance as standby counsel, Moreland did

not withdraw his waiver and request that counsel be appointed

to represent him until April 23, 2002. 

[3] At no point did the district court lead Moreland to

believe that he would receive substantial assistance with his

case from standby counsel. Thus, Moreland’s waiver of his

right to counsel was knowing and intelligent. 

B.

[4] Second, Moreland claims that he was denied effective

assistance of counsel. “[A]s a general rule, we do not review

challenges to the effectiveness of defense counsel on direct

appeal.” United States v. Jeronimo, 398 F.3d 1149, 1155 (9th

Cir. 2005). Rather, we prefer to review ineffective assistance

of counsel claims in habeas corpus proceedings under 28

U.S.C. § 2255. United States v. Alferahin, 433 F.3d 1148,

1160 n.6 (9th Cir. 2006). We may consider such claims on

direct appeal, however, where “the record on appeal is sufficiently developed to permit determination of the issue.” Id.

16342 UNITED STATES v. MORELAND
[5] In this appeal, Moreland makes four arguments in support of his ineffective-assistance-of-counsel claim: (1) trial

counsel failed to investigate Moreland’s mental health, (2)

trial counsel failed to request an adequate continuance, (3)

trial counsel failed to object to the district court’s limitation

of Moreland’s direct examination, and (4) trial counsel failed

to object to questions regarding the veracity of witnesses on

cross-examination and to the prosecution’s statements during

closing arguments regarding Moreland’s veracity. But the

record is not sufficiently developed to permit determination of

the issues. For example, defense counsel has not had an

opportunity to explain his actions. See United States v.

Laughlin, 933 F.2d 786, 789 (9th Cir. 1991). The record is

also undeveloped with regard to Moreland’s purported mental

health defense, as the government has not conducted its own

psychological evaluation. Without that evaluation, we are

unable to determine whether prejudice resulted from trial

counsel’s failure to investigate. Id. Accordingly, we decline to

consider Moreland’s ineffective assistance of counsel claims

on direct appeal, but he may pursue those claims in collateral

proceedings. Jeronimo, 398 F.3d at 1156.

C.

Third, Moreland contends that the district court erred in

failing to grant an adequate continuance. Here, the district

court granted a two-week continuance over Moreland’s objection. But Moreland argues that the district court should have

sua sponte granted a lengthier continuance to allow his trial

counsel adequate time to prepare. A district court’s decision

to grant or deny a continuance is reviewed for abuse of discretion, even where a defendant fails to make a formal motion

for a continuance. United States v. Nguyen, 262 F.3d 998,

1002 (9th Cir. 2001). There is no abuse of discretion unless

the denial was “arbitrary or unreasonable.” United States v.

Wills, 88 F.3d 704, 711 (9th Cir. 1996). 

[6] The district court did not abuse its discretion in granting

only a two-week continuance, however, because the need for

UNITED STATES v. MORELAND 16343
a continuance was Moreland’s fault. See United States v.

Fowlie, 24 F.3d 1059, 1069 (9th Cir. 1994). The district court

repeatedly advised Moreland to withdraw his waiver of counsel and accept representation. For example, the district judge

told Moreland “[i]f you exclude Mr. Hurvitz early on, then

turn to him later, he’s going to be severely handicapped, in

ways he wouldn’t be if he were your attorney right from the

beginning.” But Moreland insisted on relying on Mueller, a

co-participant in the criminal enterprise and an unlicensed

lawyer, as legal counsel. Moreland did not request representation until two months before trial. When Moreland finally did

accept counsel, he opposed his trial counsel’s expressed

desire for a continuance and prevented trial counsel from

requesting more time to prepare. He even opposed the twoweek continuance granted sua sponte by the district court.

Consequently, Moreland was clearly to blame both for the

delay and for the district court not granting a longer continuance. The district court’s decision to grant only a two-week

continuance, when Moreland objected to any continuance,

was not “arbitrary or unreasonable;” therefore, the district

court did not abuse its discretion. 

D.

Fourth, Moreland argues that his due process rights were

violated because the government committed prosecutorial

misconduct by questioning Moreland about the veracity of

two prosecution witnesses during cross-examination and by

casting doubt upon Moreland’s veracity during closing arguments. Moreland did not object at trial. “We review claims of

prosecutorial misconduct for plain error when a defendant

failed to object at trial.” United States v. Washington, 462

F.3d 1124, 1136 (9th Cir. 2006); see Fed. R. Crim. P. 52(b).

Under the plain error standard, relief is not warranted unless

there has been: (1) “error,” (2) that was “plain,” (3) that

affected “substantial rights,” and (4) that “seriously affected

the fairness, integrity, or public reputation of the judicial pro16344 UNITED STATES v. MORELAND
ceedings.” United States v. Recio, 371 F.3d 1093, 1100 (9th

Cir. 2004).

1.

[7] Moreland first asserts that his due process rights were

violated when the prosecution compelled him to testify

regarding whether two government witnesses lied during their

testimony. It is improper for a prosecutor to question a defendant regarding the veracity of a government witness. United

States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004); see also

United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir.

1998) (holding that testimony regarding witness’ credibility is

prohibited unless it is admissible as character evidence). In

this case, the prosecutor twice asked Moreland about the

veracity of government witnesses during his crossexamination. The first instance involved Juan Alvarez, a

Costa Rican attorney with whom Moreland left all of his documentation regarding the criminal enterprise. Alvarez testified

that he never had an attorney-client relationship with Moreland, whereas Moreland claimed Alvarez was his lawyer. The

prosecutor asked Moreland to testify regarding Alvarez’s

veracity on this point:

Q. You’re telling us he was your lawyer? 

A. Yes, he was. 

Q. You heard his testimony. He said he had no client relationship with you. 

A. That was his testimony. 

Q. He’s lying? 

A. I don’t know why he would be, but he has to be.

Q. So he’s a liar. Right? 

UNITED STATES v. MORELAND 16345
A. I don’t know why, but yes. 

The second instance involved Lisa Green, a former administrative assistant who testified about statements Moreland

made concerning the ownership of a house in Texas and

whether Moreland paid his personal expenses with money

from a trust set up with investor funds. She also testified that

Moreland had lied to investors about his health. The prosecution’s questioning of Moreland transpired as follows:

Q. Lisa Green told us you had that checkbook in

your house? 

A. Yes, sir, she did. 

Q. And she told us that you would sign Jeff Lewis

and Derral Hineman’s names to those checks.

Remember her testimony? 

A. That’s what her testimony was. That is not true.

Q. She’s lying? 

A. I just was never allowed to sign their signatures.

There was no reason to. 

Q. When she told this jury she saw you signing

Jeff Lewis’s name, she’s lying. Right, Mr.

Moreland? 

A. No. I think she could have been mistaken. . . .

. . .

Q. You told Ms. Green that this house was your

house, didn’t you? 

A. No, sir, I did not. 

16346 UNITED STATES v. MORELAND
Q. So she’s lying about that? 

A. You know, people jump to conclusions . . . . 

Q. If Ms. Green said you told her this was your

house, was she lying about that? 

A. Yes, sir, she would be. I’ve never had a discussion with her like that. 

Q. Why do you think she would come in here and

lie under oath about you? 

A. Well, probably because I fired her. 

. . .

Q. So if [Ms. Green] said you were healthy, she’s

lying. 

A. You’re trying to twist something here of what

is this sabbatical. 

The prosecutor’s questioning is clearly improper under our

case law. In United States v. Geston, 299 F.3d 1130 (9th Cir.

2002), a case involving the prosecution of a police officer for

unreasonable use of force, we held that a prosecutor’s questioning of two law enforcement officers during crossexamination improperly compelled the witnesses to offer

opinions regarding the veracity of government witnesses. Id.

at 1136-37. When cross-examining two defense witnesses, the

prosecution in Geston summarized prior government witness

testimony that contradicted each defense witness’s testimony,

and then asked whether the defense witness thought the government witness was lying. Id. at 1135-36. We held this type

of questioning to be improper. Id. at 1136. Similarly, in

Combs, we found that the prosecution improperly questioned

the defendant regarding whether a government agent lied durUNITED STATES v. MORELAND 16347
ing his testimony. 379 F.3d at 572. The questioning in this

case also resembles the questioning in United States v. Sanchez, 176 F.3d 1214 (9th Cir. 1999), in which we held that

compelling a defendant to call a government agent a liar was

improper. Id. at 1220. The following constituted the line of

questioning deemed improper in Sanchez:

Q. You heard Deputy Marshal Fielder testify this

morning? 

A. Yes, I did. 

Q. You were telling the ladies and gentlemen of

the Jury that he lied to them? 

A. Yes, I did. 

Q. That is what you are saying, he lied this morning? 

Id. at 1219. The questioning in this case is not only similar in

nature to that in Sanchez, it is lengthier and more accusatory.

Therefore, the prosecutor’s cross-examination of Moreland

was improper. 

The government argues, however, that the prosecutor’s

questions regarding Green and Alvarez were proper because

Moreland “invited” questions regarding their veracity.

According to the government, Moreland opened the door to

the issue of Green’s credibility by stating “That’s what her

testimony was. That is not true.” The government seems to

suggest that the prosecution had no choice but to follow up

Moreland’s statement by asking whether Green was lying.3

This argument makes little sense on its own, especially when

compared to the questioning in Sanchez, and becomes com3The government offers no specific rationale to support its argument

that Moreland “invited” testimony regarding Alvarez’s veracity. 

16348 UNITED STATES v. MORELAND
pletely invalid when considering the entire line of questioning. The prosecutor asked whether Moreland considered

Green a liar six times. Moreland tried to explain that Green

was not a liar four times, but the prosecutor persisted with

questions regarding her veracity. Consequently, the government cannot plausibly claim that its questions about Green’s

truthfulness were “invited.” 

[8] Even though the prosecution’s questioning was

improper, it does not amount to plain error. “A prosecutor’s

improper questioning is not in and of itself sufficient to warrant reversal. It must also be determined whether the prosecutor’s actions ‘seriously affected the fairness, integrity, or

public reputation of judicial proceedings, or where failing to

reverse a conviction would result in a miscarriage of justice.’ ” Geston, 299 F.3d at 1136 (quoting United States v.

Tanh Huu Lam, 251 F.3d 852, 862 (9th Cir. 2001) (citation

omitted), and citing Ortiz v. Stewart, 149 F.3d 923, 934 (9th

Cir. 1998)). Moreland argues that the prosecutor’s questions

prejudiced his defense and affected the integrity of his trial

because Moreland’s knowledge and intent were the main

issues at trial and credibility of the witnesses was central to

the prosecution’s case. As the government points out, the

prosecution presented more than 75 witnesses in this case.

Furthermore, Green and Alvarez were peripheral witnesses

because they testified regarding matters of minor importance

to the case. In fact, Moreland himself admits that an IRS

agent was the prosecution’s key witness. In the context of this

long and complicated trial, in which witness credibility was

not paramount, the prosecution’s questioning of Moreland

regarding those two non-essential witnesses did not prejudice

his defense, affect his substantial rights, or diminish the integrity of the judicial proceedings.

2.

[9] Moreland next argues that his due process rights were

violated by the prosecution’s statements during closing arguUNITED STATES v. MORELAND 16349
ments regarding Moreland’s veracity. As a general rule, “a

prosecutor may not express his opinion of the defendant’s

guilt or his belief in the credibility of [government] witnesses.” United States v. McKoy, 771 F.2d 1207, 1211 (9th Cir.

1985). This concept has been extended to find that referring

to a defendant as “a liar” during closing argument, when that

assertion is not based on “reasonable inferences,” is improper.

See United States v. Garcia-Guizar, 160 F.3d 511, 520 (9th

Cir. 1998). At the same time, we have recognized that “the

prosecution must have reasonable latitude to fashion closing

arguments.” United States v. Molina, 934 F.2d 1440, 1445

(9th Cir. 1991). As a result, it is “neither unusual nor

improper for a prosecutor to voice doubt about the veracity of

a defendant who has taken the stand.” United States v. Birges,

723 F.2d 666, 672 (9th Cir. 1984). Indeed, we have found

that, in “instances of flatly contradictory testimony on important issues . . . it [is] proper for the government to argue that

the jury ought not to believe the [defendant’s] version.”

Molina, 934 F.2d at 1445. Thus, the prosecution may refer to

a defendant as a liar if it is “commenting on the evidence and

asking the jury to draw reasonable inferences.” GarciaGuizar, 160 F.3d at 520; see also United States v. Rude, 88

F.3d 1538, 1548 (9th Cir. 1996) (holding that a prosecutor’s

use of the words “lie,” “lies,” or “lied” over 90 times when

referring to the defendants in its closing argument was

“within the boundaries of proper . . . summations.”). 

In this case, the prosecutor referred to Moreland as a liar

several times throughout his closing argument. To illustrate,

Moreland points to the following statement:

Remember, I asked Mr. Moreland about [being a

liar] on the witness stand. I said: Hey, if this jury

finds that you lied, can they apply your own words

to yourself and conclude that as to you, once a liar

always a liar? And you saw the little cogs in his head

spin. He didn’t know quite what to say. He was in

kind of a jam there. He paused, he delayed, and he

16350 UNITED STATES v. MORELAND
finally begrudgingly said: Yeah, they can conclude

once a liar, always a liar. Make Mr. Moreland eat

those words. And you can find so many lies he told.

I’ll tell you some of them. But when you go back in

there, you can probably make a list of 50 lies he told.

. . .

So once you conclude Mr. Moreland is a liar, then

nothing he told you is believable. 

The prosecutor then went on to point out specific examples of

contradictory testimony pointing to the conclusion that Moreland was not telling the truth. For example, the prosecutor

specifically discussed Moreland’s explanation of the investment scheme and how Moreland merged his enterprise with

scheme mastermind Zidar’s, Moreland’s denial that the house

he lived in was actually his, Moreland’s denial that he threw

his laptop into a dumpster, and whether Moreland knew of the

government’s search of Zidar’s house when he fled to Costa

Rica. The prosecution then went on to remind the jurors that

it was their job to evaluate the credibility of the witnesses and

defendants. 

[10] This case is similar to Molina, in which the prosecutor

explained how the defendant’s testimony directly conflicted

with that of a confidential informant and then stated that the

defendant must have lied. 934 F.2d at 1445. In Molina, the

defendant objected to the following passage from the prosecution’s closing argument:

[Y]ou could only come to one conclusion: That

somebody is lying. And who is that? Who’s lying?

Is Special Agent Reyes lying? Did he get up on the

stand under oath and lie to you for the sole purpose

of convicting an innocent man? It’s unbelievable.

The one who lied to you is the one who is guilty

of possessing with the intent to distribute the

UNITED STATES v. MORELAND 16351
cocaine. And that’s the defendant, Frank Molina.

And when you weigh the credibility of the witnesses,

remember that there was one witness here who had

a greater motive to lie than any other witness, a

greater stake in this case than either Art Reyes or

Alvaro or Agent Leppla or anybody, and that man

was the defendant, Frank Molina. He had the greatest bias in this case and the greatest motive to lie. 

So when you go back into the jury room remember . . . that Mr. Molina lied to you on the stand and

remember that the reason he lied to you is because

he is guilty, and that’s the only reason and the only

motivation for him to lie. 

Id. (alterations in original) (emphasis in original). We found

that “the inference is unavoidable that ‘somebody is lying’ ”

and that the prosecutor’s statements were proper based on the

evidence. Id. Similarly, the prosecutor’s statements in this

case were reasonable based on the evidence, which the prosecutor demonstrated by carefully walking the jury through the

evidence and pointing out inconsistencies. Therefore, based

on the case law, the prosecutor’s statements regarding Moreland’s credibility were not improper. 

Moreover, the prosecutor’s statement did not affect Moreland’s substantial rights. Even if the prosecutor’s statements

were improper, Moreland must show that the statements

affected the outcome of his trial. United Stated v. RomeroAvila, 210 F.3d 1017, 1022 (9th Cir. 2000). Where the government “presented strong independent evidence of [the

defendant’s] guilt,” a prosecutor’s improper statements about

the defendant during cross-examination will not be found to

have affected the defendant’s substantial rights. Id. at 1023;

see also United States v. Laurins, 857 F.2d 529, 539 (9th Cir.

1988) (“If the evidence was so strong that these remarks had

no effect on the jury, reversal is not required.”). Here, the

government presented strong independent evidence that

16352 UNITED STATES v. MORELAND
Moreland knowingly engaged in a massive fraud. Additionally, the district court properly instructed the jury that

“[a]rguments and statements by lawyers are not evidence” and

what the lawyers said “in their closing arguments . . . is not

evidence.” As a result, Moreland has not shown that the prosecutor’s statements during closing arguments affected the outcome of the proceedings. See Sassounian v. Roe, 230 F.3d

1097, 1106-07 (9th Cir. 2000). 

[11] Moreland also objects to what he considers the prosecutor’s misstatement of the law in its closing argument. Obviously, a “prosecutor should not misstate the law in closing

argument.” United States v. Berry, 627 F.2d 193, 200 (9th Cir.

1980). Moreland argues that the following statement by the

prosecutor to the jury constituted a misstatement of the law

governing the case:

So when you’re assessing credibility, look at who

got up on that stand and answered questions straighforwardly, and look who tried to duck and weave.

And once you conclude they’re not credible, case is

over. 

But Moreland ignores the fact that the prosecutor spent a substantial amount of time reviewing the legal elements of the

charges and discussing which facts the jury needed to find in

order to convict Moreland. In doing so, the prosecutor accurately explained exactly what the government had to prove to

find Moreland guilty. Consequently, the single, brief statement highlighted by Moreland is neither improper nor did it

affect his substantial rights. “Put in proper context,” the statement was an “isolated moment” in a 34-day trial. See Hall v.

Whitley, 935 F.2d 164, 165-66 (9th Cir. 1991). Moreland’s

due process rights were not violated. 

E.

Fifth, Moreland challenges his conviction for money laundering and conspiracy to commit money laundering, arguing

UNITED STATES v. MORELAND 16353
the evidence submitted at trial was insufficient to support the

jury’s verdict. “Claims of insufficient evidence are reviewed

de novo.” United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th

Cir. 2004). There is sufficient evidence to support a conviction if, “viewing 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.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original). 

Moreland was convicted of two counts of promotion money

laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i)

(Counts 26 and 27), four counts of concealment money laundering involving foreign transfers in violation of 18 U.S.C.

§ 1956(a)(2)(B)(i) (Counts 33-36), and conspiracy to commit

money laundering in violation of 18 U.S.C. § 1956(h) (Count

38). 

Regarding the two promotion counts (Counts 26 and 27),

18 U.S.C. § 1956(a)(1) makes it a crime to conduct a financial

transaction “which in fact involves the proceeds of specified

unlawful activity . . . with the intent to promote the carrying

on of specified unlawful activity.” 18 U.S.C. § 1956(a)(1)

(A)(i). The counts on which Moreland was convicted

involved transfers from accounts controlled by Meliorations

Management Team (“Meliorations”), a trust established to

collect funds from investors, to two sales agents with the purpose of paying their commissions. Moreland argues that only

Zidar, Elizabeth Anne Phillips (the administrator for the

enterprise), and Susan Fitzgerald (who filled in temporarily

for Phillips) had access to the Meliorations accounts and that

Phillips and Fitzgerald alone conducted wire transfers and

paid sales agents’ commissions. Additionally, Moreland

argues that the prosecution offered no evidence that Moreland

was involved in the transfers comprising the promotion

counts. For those reasons, Moreland claims his conviction on

the promotion counts should be vacated for lack of sufficient

evidence. 

16354 UNITED STATES v. MORELAND
Regarding the four concealment counts (Counts 33, 34, 35,

and 36), 18 U.S.C. § 1956(a)(2) makes it a crime to transfer

funds from the United States to a foreign country “knowing

that the . . . funds involved . . . represent the proceeds of some

form of unlawful activity and knowing that such . . . transfer

is designed in whole or in part . . . to conceal or disguise the

nature, the location, the source, the ownership, or the control

of the proceeds of specified unlawful activity.” 18 U.S.C.

§ 1956(a)(2)(B)(i). The counts on which Moreland was convicted, Counts 33-36, involved transfers from Meliorations’s

account in Washington to three international business corporation (“IBC”) accounts in Samoa and an IBC account in the

Bahamas. One of the Samoan IBCs, Millennium, was controlled by Moreland. Yet Moreland argues that the testimony

offered at trial by Phillips and Fitzgerald demonstrated that

only Zidar, Phillips, Fitzgerald, and William Cravens (who

established offshore accounts for the enterprise) were directly

involved in those transactions. According to Moreland, the

prosecution offered no evidence that Moreland was involved

in the transfers comprising the concealment counts. Moreland

argues, therefore, that his conviction is not supported by sufficient evidence. 

[12] Moreland’s claim regarding Count 34 is meritless.

That count involved a wire transfer of $510,800 from Meliorations to Millennium, an IBC created and controlled by

Moreland and used by him to pay his personal expenses. Phillips testified that this transfer was “for a trade” (i.e., an investment) and sent offshore to conceal it from the government.

Not only did the prosecution produce evidence in support of

Moreland’s culpability on this count, Moreland virtually

admitted as much in his brief to this court by quoting a portion of Fitzgerald’s testimony in which she states that Moreland “was behind Millennium.” A rational juror could have

concluded that Moreland was therefore involved with the

transfer. Consequently, the evidence is sufficient to uphold his

conviction on Count 34. 

UNITED STATES v. MORELAND 16355
[13] There is also sufficient evidence to uphold Moreland’s

convictions on the other money laundering charges, Counts

26, 27, 33, 35, and 36, even though those transactions did not

directly involve Moreland. Under Pinkerton v. United States,

328 U.S. 640 (1946), a conspirator is “criminally liable for the

substantive offenses committed by a co-conspirator when they

are reasonably foreseeable and committed in furtherance of

the conspiracy.” United States v. Long, 301 F.3d 1095, 1103

(9th Cir. 2002) (citing Pinkerton, 328 U.S. at 645-48). Pursuant to the Pinkerton doctrine, sufficient evidence exists in this

case to uphold Moreland’s convictions for the substantive

money laundering charges provided that: (1) there is sufficient

evidence to uphold his conviction for conspiracy, (2) the

money laundering offenses were committed in furtherance of

the conspiracy while Moreland was a member of the conspiracy, and (3) the actions providing the basis for the substantive

charges were reasonably foreseeable to Moreland.4 Pinkerton,

328 U.S. at 645-48. 

[14] Section 1956(h) states that “[a]ny person who conspires to commit any offense defined in this section . . . shall

be subject to the same penalties as those prescribed for the

offense the commission of which was the object of the conspiracy.” 18 U.S.C. § 1956(h). Moreland argues that he did

not have knowledge of the objective of Zidar’s money laundering conspiracy. “Knowledge of the objective of the conspiracy is an essential element of any conspiracy conviction.”

United States v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987).

In asserting that he had no knowledge of the conspiracy,

Moreland claims that he had no connection to Meliorations or

access to its bank accounts, that his clients did not deposit

their money in Meliorations’s accounts, and that his function

in the organization was merely to invest funds. “However, the

existence of an agreement may be inferred from circumstantial evidence.” United States v. Fulbright, 105 F.3d 443, 448

(9th Cir. 1997), overruled on other grounds by United States

4The jury was properly instructed on these elements. 

16356 UNITED STATES v. MORELAND
v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en banc); see

also United States v. Castro, 972 F.2d 1107, 1110 (9th Cir.

1992) (“The government does not have to present direct evidence. Circumstantial evidence and the inferences drawn from

that evidence will sustain a conspiracy conviction.”) (emphasis in original). The evidence contradicts Moreland’s contention. 

The government introduced an overwhelming amount of

evidence demonstrating Moreland’s knowledge of the existence of the conspiracy and agreement to the conspiracy’s

objectives. Moreland worked with Zidar, Cravens, and Phillips to use foreign corporations and bank accounts to promote

their fraud and hide their ill-gotten millions from the U.S.

Government. A specific example is Cravens’s testimony that

the IBCs and Samoan bank accounts he set up specifically for

Moreland (including the Millennium IBC and bank account)

were set up to allow Zidar and Moreland to operate “privately

and with the utmost secrecy,” with the purpose of keeping

money away from the government. Phillips testified that Zidar

directed her to wire funds from Meliorations to Moreland’s

Millennium account in Samoa in order to keep the money

away from the government. Agent Lawrence testified that

new investor money was sent to Moreland’s various accounts

in the Bahamas, Samoa, and other locations, which money

Moreland used to pay his Dexia and Millennium investors.

Much more evidence was introduced at trial. Given the weight

of the evidence, a rational juror could have found beyond a

reasonable doubt that Moreland participated in the overall

conspiracy to launder money and had knowledge of its objectives. 

The evidence also supports the jury’s finding beyond a reasonable doubt that the specific actions underlying the money

laundering counts were committed in furtherance of the

money laundering conspiracy while Moreland was a part of it,

and that the offenses were reasonably foreseeable to Moreland. Regarding the promotion counts, Moreland knew that

UNITED STATES v. MORELAND 16357
sales agents were being paid commissions. In fact, Moreland

himself received commissions from his sales. And the evidence indicates that Moreland knew that the enterprise was

fraudulent. First, he knew it was not profitable and, second,

he knew that funds from later investors were used to pay earlier investors. A rational juror could, therefore, find beyond a

reasonable doubt that it was reasonably foreseeable to Moreland that commissions were being paid to agents in furtherance of the fraudulent conspiracy. Regarding the concealment

counts, Moreland also knew that Zidar, Cravens, and Phillips

were transferring funds out of the country to hide the funds

from the government. And he knew about the existence and

use of all four foreign bank accounts involved in the transfers.

Thus, a rational juror could find beyond a reasonable doubt

that the particular transactions alleged in Counts 33, 35, and

36 were committed in furtherance of the conspiracy while

Moreland was part of it and were reasonably foreseeable to

Moreland. 

[15] There is ample evidence that Moreland participated in

the overarching conspiracy with knowledge of its objectives.

There is also sufficient evidence to conclude that the transactions forming the basis for the substantive charges were committed in furtherance of the conspiracy while Moreland was

a member of the conspiracy and were reasonably foreseeable

to Moreland. As a result, there is sufficient evidence to uphold

Moreland’s conviction on the substantive money laundering

charges and the conspiracy charge.

III.

Moreland also appeals his revised sentence, arguing that

the district court improperly relied upon facts not found by the

jury in applying the now-advisory Sentencing Guidelines and

that his sentence is unreasonable under 18 U.S.C. § 3553(a).

“When we review a sentence, the first step is to determine if

the district court made a material error in its Guidelines calculation that serves as the starting point for its sentencing deci16358 UNITED STATES v. MORELAND
sion. If there was material error in the Guidelines calculation,

we will remand for resentencing, without reaching the question of whether the sentence as a whole is reasonable. If the

district court committed no error in applying the Guidelines,

we will next consider challenges to the reasonableness of the

overall sentence in light of the factors specified in 18 U.S.C.

§ 3553(a).” United States v. Kilby, 443 F.3d 1135, 1140 (9th

Cir. 2006) (citing United States v. Cantrell, 433 F.3d 1269,

1280 (9th Cir. 2006)). 

A.

First, Moreland claims that the district court erred in determining his sentence by relying on facts not found beyond a

reasonable doubt by the jury in applying the Sentencing

Guidelines. More specifically, Moreland objects to the district

court’s reliance on the Sentencing Guidelines calculation set

forth in the Revised Presentence Report. The Revised Presentence Report increased Moreland’s base offense level from 23

to 43 based, in part, on the value of the funds actually laundered in this case after Moreland’s entry into the conspiracy

—$55 million. Moreland complains that the district court violated his Fifth and Sixth Amendment rights by considering the

amount of funds involved in the money laundering conspiracy

because the government did not charge the amount of funds

laundered in the indictment and the amount was not part of

the jury’s verdict. We review de novo whether a defendant’s

Fifth or Sixth Amendment rights were violated when a district

court relied on facts not found by a jury in determining his

sentence. United States v. Dare, 425 F.3d 634, 638 (9th Cir.

2005). We also review de novo whether the district court

applied the correct standard of proof. Id.

Moreland’s argument relies on the Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000),

Blakely, and Booker. In Apprendi, the Court held that, as

required by the Sixth Amendment, facts that increase the penalty of a crime beyond the statutory maximum, other than the

UNITED STATES v. MORELAND 16359
fact of a prior conviction, must be submitted to a jury and

proved beyond a reasonable doubt. 530 U.S. at 490; see also

Blakely, 542 U.S. at 303-04 (holding that the “statutory maximum for Apprendi purposes is the maximum sentence a judge

may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant,” and “without any

additional findings” by the court). But the Court expressly

limited its holding in Apprendi to “any fact that increases the

penalty for a crime beyond the prescribed statutory maximum.” Id. at 490. In Booker, the Court relied on Apprendi and

Blakely to conclude that the Sixth Amendment precludes a

district court from enhancing a sentence based on extraverdict findings in a mandatory sentencing regime. 543 U.S.

at 230-33, 243-44. At the same time, the Court went on to

reaffirm the principle that, “when a trial judge exercises his

discretion to select a specific sentence within a defined range,

the defendant has no right to a jury determination of the facts

that the judge deems relevant.” Id. at 233. The Court reiterated that position recently in Rita v. United States, 127 S. Ct.

2456 (2007), by stating that: “This Court’s Sixth Amendment

cases do not automatically forbid a sentencing court to take

account of factual matters not determined by a jury and to

increase the sentence in consequence. Nor do they prohibit the

sentencing judge from taking account of the Sentencing Commission’s factual findings or recommended sentences.” Id. at

2465-66. Thus, the case law does not support Moreland’s

argument. 

[16] In fact, we have specifically rejected Moreland’s argument that a jury must find facts used to increase a defendant’s

sentence after Booker. In United States v. Dupas, 419 F.3d

916 (9th Cir. 2005), we held that the post-Booker advisory

guidelines regime “still allows the sentencing judge (as distinct from a jury) to make the findings of fact necessary to

determine the guideline range in the first place.” Id. at 919;

see also United States v. Mix, 457 F.3d 906, 914 (9th Cir.

2006). “[F]ollowing [Booker], district courts should resolve

factual disputes at sentencing by applying the preponderance

16360 UNITED STATES v. MORELAND
of the evidence standard.” Kilby, 443 F.3d at 1140. “As a general rule,” therefore, even after Booker, “the preponderance of

the evidence standard is the appropriate standard for factual

findings used for sentencing.” Dare, 425 F.3d at 642. “However, ‘when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of

conviction,’ the government may have to satisfy a ‘clear and

convincing’ standard.” Id. (quoting United States v. Hopper,

177 F.3d 824, 833 (9th Cir. 1999), quoting United States v.

Restrepo, 946 F.2d 654, 659 (9th Cir. 1999) (en banc)). 

[17] In calculating Moreland’s offense level at 43 as recommended in the Revised Presentence Report, the district

court found that the value of the funds laundered after Moreland’s entry into the scheme was $55 million, that Moreland

played a leadership and organizing role in the offense, that he

abused a position of trust with respect to the investors, and

that he obstructed justice by destroying documents, attempting to dispose of his laptop computer, and fleeing to Costa

Rica during the investigation. The court found these facts by

clear and convincing evidence, thus applying a burden of

proof higher than necessary. There was no error in calculating

the offense level or the applicable Guidelines range. 

[18] As to Moreland’s Fifth and Sixth Amendment claims,

Moreland’s sentence did not exceed the statutory maximums

for the charges on which he was convicted. Thus, Apprendi is

not implicated here. We held in Dare, 425 F.3d at 640 that

“[t]he judge may select any sentence within the range, based

on facts not alleged in the indictment or proved to the jury—

even if those facts are specified by the legislature, and even

if they persuade the judge to choose a much higher sentence

than he or she otherwise would have imposed. That a fact

affects the defendant’s sentence, even dramatically so, does

not by itself make it an element.” The statutory maximums for

the counts on which he was convicted by the jury are: 5 years

for each of the three counts of mail fraud, 5 years for each of

the three counts of wire fraud, 20 years for each of the two

UNITED STATES v. MORELAND 16361
counts of promotion money laundering, 20 years for each of

the four counts of money laundering involving foreign transfers, 5 years for conspiracy to commit mail and wire fraud,

and 20 years for conspiracy to commit money laundering. If

the district court sentenced Moreland to the maximum for

each count and ran the sentences concurrently, he could have

received 20 years in prison. If the district court had chosen to

run the sentences consecutively pursuant to U.S.S.G. § 5G1.2,

he could have received a sentence of 175 years in prison. But

the district court sentenced him to 18 years in prison—well

within the applicable statutory maximums. Furthermore, the

district court found the facts replied upon in the Revised Presentence Report by clear and convincing evidence. Therefore,

the district court did not err in determining Moreland’s sentence.

B.

Second, Moreland argues that the revised sentence is unreasonable under 18 U.S.C. § 3553(a). Moreland previously

appealed his original sentence and, in light of the Supreme

Court’s decision in Blakely, a prior panel of this court

remanded for resentencing under the now-advisory Sentencing Guidelines. On remand, the district court departed downward from the Sentencing Guidelines range recommended in

the government’s Revised Presentence Report and reduced

Moreland’s sentence from 292 months to 216 months in

prison. Moreland now argues that the 216-month sentence is

unreasonable because he was a first-time offender of a nonviolent offense, he was not as responsible for the criminal enterprise as his co-conspirators who pled guilty and received

much lower sentences, and the district court improperly considered the amount of money involved in the conspiracy. 

The district court explicitly considered the nature and circumstances of the offense, the seriousness of the offense, and

the need to promote respect for the law, provide just punish16362 UNITED STATES v. MORELAND
ment, afford adequate deterrence, and protect the public. See

18 U.S.C. § 3553(a).5

The district court also gave substantial and detailed consideration to Moreland’s objections. First, the court explicitly

considered Moreland’s comparative culpability and that he

was a first-time offender of a nonviolent crime. The district

court further found that Moreland’s co-conspirators deserved

their lower sentences due to their assistance to the government in putting together its case against Zidar and Moreland.

For that reason, the district court found that Moreland’s longer sentence was appropriate. The district court also explicitly

considered the notion that the amount of money involved in

the money laundering scheme increased Moreland’s sentencing range. Finally, the district court noted an obvious

“change” in Moreland’s attitude toward the crime and

acknowledgment of it that justified a downward departure.

Namely, the court found that the two years in between the

first sentencing and the resentencing had produced a “different person” who had had time to “introspect” on the “harsh

5Under § 3553(a), a district court “shall impose” a sentence that is “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a). In doing so,

the district court “shall consider”: 

(1) the nature and circumstances of the offense and the history

and characteristics of the defendant; 

(2) the need for the sentence imposed— 

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense; 

(B) to afford adequate deterrence to criminal conduct; [and]

(C) to protect the public from further crimes of the defendant; 

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct; and 

(7) the need to provide restitution to any victims of the offense.

UNITED STATES v. MORELAND 16363
circumstances and . . . disastrous results” of his crimes and

time in prison. Consequently, the district court exercised its

discretion to lower Moreland’s sentence from 24 to 18 years

in prison, a sentence the court judged was sufficient, but not

greater than necessary, to serve its purpose. 

The district court’s explanation of its reasoning was more

than legally sufficient. “The sentencing judge should set forth

enough to satisfy the appellate court that he has considered

the parties’ arguments and has a reasoned basis for exercising

his own legal decisionmaking authority.” Rita, 127 S. Ct. at

2468. As in Rita, “[t]he record makes clear that the sentencing

judge listened to each argument. The judge considered the

supporting evidence. The judge was fully aware of defendant’s . . . ailments and imposed a sentence that takes them

into account. Id.

[19] Given the seriousness of the crimes, the number of

victims, the amount of loss, and Moreland’s role in the conspiracy, the district court’s decision to accept the Sentencing

Guidelines range presented in the Revised Presentence Report

was reasonable. The district court’s decision not to depart

downward given the disparity between Moreland’s sentence

and those of some of his co-conspirators was also reasonable.

See United States v. Caperna, 251 F.3d 827, 831-32 (9th Cir.

2001) (leaving that decision to the discretion of the sentencing

judge) a case involving the prosecution of a police officer for

unreasonable use of force. Finally, the district court’s decision

to depart downward to 216 months, but not more, in consideration of the § 3553(a) factors, and in particular, Moreland’s

mental state, was reasonable. As a result, Moreland’s sentence

was reasonable under § 3553(a).

IV.

Finally, Moreland appeals the district court’s order imposing over $36 million in restitution. The legality of a restitution

order is reviewed de novo, unless it is within the statutory

16364 UNITED STATES v. MORELAND
bounds, in which case we review for abuse of discretion.

United States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004).

Congress passed the Mandatory Victims Restitution Act of

1996 (MVRA), 18 U.S.C. §§ 3663A-3664, as part of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub.L. No. 104-132, § 206, 110 Stat. 1232 (1996),

and as a supplement to the Victim and Witness Protection Act

of 1982 (VWPA), 18 U.S.C. § 3663. United States v. De La

Fuente, 353 F.3d 766, 769 (9th Cir. 2003). The MVRA makes

restitution mandatory, without regard to a defendant’s economic situation, to identifiable victims who have suffered

physical injury or pecuniary loss from particular crimes,

including offenses involving fraud or deceit. 18 U.S.C.

§ 3663A(a)(1), (c), § 3664(f)(1)(A); United States v. Mays,

430 F.3d 963, 965 (9th Cir. 2005); United States v. Gordon,

393 F.3d 1044, 1048 (9th Cir. 2004); and United States v.

Dubose, 146 F.3d 1141, 1143 (9th Cir. 1998). The “primary

and overarching goal” of the MVRA “is to make victims of

crime whole, to fully compensate these victims for their losses

and to restore these victims to their original state of wellbeing.” Gordon, 393 F.3d at 1053 (internal quotations, citations, and emphasis omitted). For that reason, the statute “expressly directs the sentencing judge to award restitution in an

amount equal to the value of the property on the date of the

damage, loss, or destruction.” Id. (internal quotation omitted).

As such, the MVRA seeks “to restore the defrauded party to

the position he would have had absent the fraud.” Id. (internal

quotation omitted). 

[20] The procedures for identifying victims and the losses

they sustained as a result of a defendant’s criminal conduct

are set forth in § 3664. The statute directs the sentencing court

to order a probation officer to prepare a report providing “a

complete accounting of the losses to each victim.” 18 U.S.C.

§ 3664(a). To facilitate the preparation of this report,

§ 3664(d)(1) provides for the prosecutor, upon request of the

probation officer, to consult with victims and, not later than

UNITED STATES v. MORELAND 16365
60 days before the sentencing date, to detail any losses subject

to restitution. Id. § 3664(d)(1). Section 3664(d)(2) further provides that the probation officer, prior to submitting a report to

the court, shall, to the extent practicable, provide notice of the

court proceedings to all victims and afford them the opportunity to submit an affidavit detailing any losses subject to restitution. Id. § 3664(d)(2). “If the number or identity of victims

cannot be reasonably ascertained, or other circumstances exist

that make [preparing the report] clearly impracticable, the

probation officer shall so inform the court.” Id. § 3664(a).

Where victims’ losses are not ascertainable by a date 10 days

prior to sentencing, the prosecutor or the probation officer

shall inform the court, and “the court shall set a date for the

final determination of the victim’s losses, not to exceed 90

days after sentencing.” Id. § 3664(d)(5). If a victim thereafter

discovers losses that could not reasonably have been included

in his or her initial claim for restitution, that victim may,

within 60 days of discovering the loss, petition the court for

an amended restitution order. Id.

In this case, the district court ordered restitution of approximately $36 million well after the 90-day limit had elapsed. At

the time of Moreland’s original sentencing, on August 23,

2003, and at the request of the prosecution, the district court

deferred the issue of restitution pending a determination by a

receiver of the identities of victims and the amounts of their

losses. The receiver did not complete its determination until

March 2005. By that time, Moreland had appealed his original

sentence and a prior panel of this court had already remanded

for resentencing. On remand, the district court entered a restitution order for over $36 million. That order was issued over

two years after the original sentencing took place. Moreland

argues that the district court lacked jurisdiction to order restitution on remand because it failed to do so within the 90-day

time frame set forth in § 3664(d)(5). We disagree. Moreland’s

timing argument would abrogate an obligation to pay millions

of dollars in restitution to thousands of defrauded victims.

16366 UNITED STATES v. MORELAND
Such an outcome would be antithetical to the purpose of the

MVRA. 

[21] The “intended beneficiaries” of the MVRA’s procedural mechanisms “are the victims, not the victimizers.”

United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999).

The legislative history reveals Congress’s intent that the time

limits in § 3664 not be relied upon for protection by defendants. See United States v. Cheal, 389 F.3d 35, 49 (1st Cir.

2004). In its report on the bill that would become the MVRA,

the Senate Judiciary Committee explicitly refused to relate the

statute’s procedural framework to the interest of defendants,

stating that the “sole due process interest of the defendant

being protected during the sentencing phase is the right not to

be sentenced on the basis of invalid premises or inaccurate

information.” S. Rep. No. 104-179, at 18 (1995), as reprinted

in 1996 U.S.C.C.A.N. 924, 930, quoted in Cheal, 389 F.3d at

49. Consequently, we recognized in United States v. Cienfuegos, 462 F.3d 1160 (9th Cir. 2006), that “ ‘the purpose behind

the statutory ninety-day limit on the determination of victims’

losses is not to protect defendants from drawn-out sentencing

proceedings or to establish finality; rather, it is to protect

crime victims from the willful dissipation of defendants’

assets.’ ” Id. at 1163 (quoting United States v. Zakhary, 357

F.3d 186, 191 (2d Cir. 2004)). 

[22] Addressing two of the other timing requirements in

§ 3664 (the 10-day notice rule in § 3664(d)(5), and the 60-day

requirement in § 3664(d)(1) regarding the amount of loss calculation), we held that § 3664’s timing requirements are procedural, rather than jurisdictional. United States v.

Cienfuegos, 462 F.3d 1160, 1162-63 (9th Cir. 2006). We concluded that the government’s failure to comply with both of

those requirements was subject to harmless error review. Id.

This conclusion puts us in sync with the First, Second, Fourth,

Sixth, and Seventh Circuits, which have held that § 3664’s

requirements are not jurisdictional. See United States v.

Cheal, 389 F.3d 35, 49-50 (1st Cir. 2004); United States v.

UNITED STATES v. MORELAND 16367
Zakhary, 357 F.3d 186, 191 (2d Cir. 2004); United States v.

Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000); United States

v. Johnson, 400 F.3d 187, 199 (5th Cir. 2005); and United

States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999).6

In fact, Moreland’s “jurisdictional argument is undermined

by § 3664’s provision for continued revision of the restitution

order in light of later discoveries of losses.” Cheal, 389 F.3d

at 48. “The MVRA permits amendments to restitution order

to reflect changed circumstances, and neither confers nor terminates the court’s jurisdiction.” Vandeberg, 201 F.3d at 814.

If a district court’s jurisdiction to order restitution did terminate after 90 days, the time limitation would “effectively nullify[ ]” the provision allowing for consideration of laterdiscovered losses. Id. Furthermore, the title of the provision

itself—“Procedure for issuance and enforcement of order of

restitution”—“advertises its procedural nature” and refutes the

notion that § 3664(d)(5) is jurisdictional. Cheal, 389 F.3d at

48. 

The legislative history also supports the notion that the “intended beneficiaries” of the MVRA’s procedural mechanisms

“are the victims, not the victimizers.” Grimes, 173 F.3d at

639. The legislative history reveals Congress’s intent that the

time limits in § 3664 not be relied upon for protection of

defendants. See Cheal, 389 F.3d at 49. In its report on the bill

that would become the MVRA, the Senate Judiciary Committee explicitly refused to relate the statute’s procedural framework to the interest of the defendants, stating that the “sole

due process interest of the defendant being protected during

the sentencing phase is the right not to be sentenced on the

6But see United States v. Farr, 419 F.3d 621, 623 (7th Cir. 2005) (distinguishing Grimes and holding that the district court exceeded its authority under § 3664 to issue restitution because it did not do so within the 90-

day time limit, where it did not order restitution as part of the defendant’s

original sentence, but three years later added restitution as a condition of

defendant’s supervised release). 

16368 UNITED STATES v. MORELAND
basis of invalid premises or inaccurate information.” S. Rep.

No. 104-179 at 18 (1995), reprinted in 1996 U.S.C.C.A.N.

924, 930, quoted in Cheal, 389 F.3d at 49. Consequently, we

recognized in Cienfuegos that “ ‘the purpose behind the statutory ninety-day limit on the determination of victims’ losses

is not to protect defendants from drawn-out sentencing proceedings or to establish finality; rather, it is to protect crime

victims from the willful dissipation of defendants’ assets.’ ”

462 F.3d 1163 (quoting Zakhary, 357 F.3d at 191). 

[23] For that reason, in Cienfuegos, we concluded that “because the procedural requirements of section 3664 were

designed to protect victims, not defendants, the failure to

comply with them is harmless error absent actual prejudice to

the defendant.” 462 F.3d at 1163; see also Zakhary, 357 F.3d

at 188 (“[F]ailure to determine losses within the § 3664(d)(5)

time period will be deemed harmless error unless a defendant

can show actual prejudice from the delay . . . . [A] presumption of harmlessness applies to any error in the timely identification of victims’ losses.”). Here, Moreland “cites no

prejudice from the delay in entering the restitution order.”

Cheal, 389 F.3d at 48. For example, Moreland does not claim

that any documents or witnesses had become unavailable after

the 90-day period elapsed, or that his financial status changed.

See United States v. Stevens, 211 F.3d 1, 6 (2d Cir. 2000).

Indeed, Moreland does not even allege that the delay caused

any prejudice to his defense whatsoever. See id. at 6. In Cienfuegos, we held that the defendant failed to show prejudice,

in part, because he had “the functional equivalent of notice”

under § 3664(d)(5)’s requirements, since restitution was part

of his plea agreement. 462 F.3d at 1163. Likewise, here,

Moreland was aware that an order of restitution would be part

of his sentence, as the district judge noted it on the record during the original sentencing hearing but deferred the calculation of the amount and identification of the victims at the

prosecution’s request. Thus, Moreland also had notice that the

restitution order would later be imposed. Finally, Moreland

was aware of the large amount of funds at issue based on the

UNITED STATES v. MORELAND 16369
district court’s findings to support the sentencing calculation.

Therefore, the district court’s error in failing to comply with

the 90-day time limit was harmless. See id.

[24] Finally, the prosecution did not waive its right to seek

restitution, as Moreland suggests. As an initial matter, restitution under the MVRA is not a right to be sought or waived by

a prosecutor. Rather, as the name of the statute suggests, restitution is mandatory where the MVRA applies. Even so, in this

case, the prosecution requested restitution in its original sentencing memorandum to the district court. At the prosecution’s request, the court deferred ordering restitution until the

receiver finished its report on victims’ losses. Moreland’s

waiver argument is therefore undermined by both the record

and the mandatory nature of the statute. 

V.

We conclude that none of the claims raised in Moreland’s

appeal warrants reversal. 

AFFIRMED.

16370 UNITED STATES v. MORELAND