1 NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. MICHAEL SEAN GRAHAM,

Defendant

- Appellant. No. 21

- 10277
D.C. No. 2:16

- cr - 01300

- DLR

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding Argued and Submitted February 7, 2024

Phoenix, Arizona Before: BERZON, HURWITZ, and JOHNSTONE, Circuit Judges. Michael Graham appeals his conviction and sentence on 15 counts of wire and mail fraud involving a foreign

- currency investment scheme. We affirm.
1. Graham first argues that the district court violated Federal Rule of Criminal Procedure 11(c)(1) when it rejected a plea agreement containing a 20

- month sentence cap . Because Graham did not raise the alleged Rule 11 violation

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

FEB 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

before the district court , and because such an objection was not “unlikely or futile, ”

we review for plain error

. United States v. Kyle , 734 F.3d 956, 962 (9th Cir. 2013). The district court did not improperly interject itself into the plea negotiation
process
. Id. at 963. Contrary to Graham’s assertions, the court did not state that it would only accept a plea agreement with out a cap or otherwise “comment[] on the hypothetical agreements it would or would not accept

. ” Id. (quoting United States v. Crowell , 60 F.3d 199, 203 (5th Cir. 1995))

. Instead, it “provide[d] individualized reasons for rejecting the agreement, based on the specific facts and circumstances presented , ” In re Morgan , 506 F.3d 705, 71 1 (9th Cir. 2007) , and informed Graham that he could either withdraw from the plea agreement , which would have allowed for further plea negotiations, or plead guilty without the cap
. Accordingly, the court did not commit plain error in rejecting the agreement

. 2. Graham next alleges that the district court violated his confrontation clause and due process rights by requiring witnesses to testify while masked during some, but not all, of their testimony

. Because Graham did not object to the masking policy at trial , we review for plain error

. United States v. Olano , 507 U.S. 725, 732 (1993). The district court did not plainly err

. Considering that the trial took place during the COVID

- 19 pandemic, the masking requirement was “necessary to further an important state interest, ” namely, the health of trial participants. United3

States v. De Jesus

- Casteneda , 705 F.3d 1117 , 1120 (9th Cir. 2013). And the “reliability of the [witness es’] testimony wa s otherwise assured” because the y were present in the courtroom , testified under oath, were subject to cross

- examination, unmasked during some of their testimony, and their demeanor and body language

were visible

. Id. at 1121. Nor did the masking require ment infringe upon Graham’s due process rights. Id.
3. Graham contends that the district court violated his constitutional rights by reinstating Count 21, a mail fraud count, which the government had mistakenly moved to dismiss before jury empanelment

. Because Graham objected to the reinstatement of the c ount , we review de novo. United States v. Berry , 683 F.3d 1015, 1020 (9th Cir. 2012); United States v. Kimbrew , 406 F.3d 1149, 1151 (9th Cir. 2005); United States v. Hartz , 458 F.3d 1011, 1019 (9th Cir. 2006).
A ny error in reinstating Count 21 was harmless

. See United States v. Tuyet Thi

- Bach Nguyen , 565 F.3d 668, 675 (9th Cir. 2009). Graham was eventually acquitted on that count. He has not pointed to any specific impact the introduction of evidence on Count 21 could have had on the counts for which he was convicted.
Nor did the reinstatement of Count 21 constitute double jeopardy. The count was dismissed without prejudice before the jury was empaneled. Graham had therefore not yet been placed in jeopardy on that count when it was reinstated. United States v. Bernhardt , 840 F.2d 1441, 1447 (9th Cir. 1988).4

Finally, whether or not the reinstatement of Count 21 constitute d an improper constructive amendment of the indictment , there was no injury to Graham as a result, as he was not convicted of the charge

. United States v. Ward , 747 F.3d 1184, 1189 (9th Cir. 2014) (noting that a finding of constructive amendment “typically mandates reversal”).
4. Graham also challenges the sufficiency of the evidence underlying his convictions. Because he did not renew his motion for acquittal at the close of evidence, we review his challenge for plain error or to prevent a miscarriage of justice

. United States v. Barragan, 263 F.3d 919, 922 (9th Cir. 2001). We conclude that , considering the evidence in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crimes were proven beyond a reasonable doubt. United States v. Nevils , 598 F.3d 1158, 1163

– 64 (9th Cir. 2010) (en banc). Counts 2, 5, 6, 9, 10, 14, 15, 18, 19, and 20 concern the transfer of funds from Graham’s business account to a personal bank account. T he government was
not required to prove that all the funds in the business account c ould be “ traced back to a particular unlawful activity.” United States v. Lazarenko , 564 F.3d 1026,
103 6 (9th Cir. 2009). Because a t least some of the funds in the business account

w ere deposited by individuals who testified as to false statements by Graham that induced them to invest, and who later received falsified statements misrepresenting5

their earnings, a reasonable juror could conclude that transfers out of that account were “in furtherance” of the fraud

. Id.

Counts 7, 8, 12, 22, and 24 concern funds transferred by two investor

victims to Graham. Although the government did not prove exactly how those funds w ere used , it did show that the funds were obtained through material misrepresentations and that at least some of the money in Graham’s business
account was diverted to personal use

. See United States v. Woods , 335 F.3d 993,
998

– 99 (9th Cir. 2003). That evidence is sufficient for a reasonable juror to conclude that the transfers were “incident to the execution of the scheme.” United
States v. Jinian , 725 F.3d 954, 960 (9th Cir. 2013) (quoting United States v. Lo , 231 F.3d 471, 478 (9th Cir. 2000))

. 5. Finally, Graham argues that the district court erred in ordering restitution for losses incurred b y Sue Irelan, Dan Hill, Christopher York, Bruce and Elain e Knutson, Donald and Alice Schoening, and Dan Sherman

. “ We review a restitution order for an abuse of discretion, provided that it is within the bounds of the statutory framework. Factual findings supporting an order of restitution are reviewed for clear error

. T he legality of the order is reviewed de novo.” United States v. Thomsen , 830 F.3d 1049, 1064 (9th Cir. 2016) ( cleaned up).
Because an element of mail and wire fraud is a “scheme,” restitution is not limited to losses caused by the c harged or c onvicted offenses

. Id. at 106 5

– 6 6

. The6

government presented sufficient evidence at sentencing to show by a preponderance of the evidence that each individual was “directly harmed by the defendant’s criminal conduct in the course of the scheme.” 18 U.S.C. § 3663A(a)(2). Accordingly, the district court did not abuse its discretion in entering the restitution order

. AFFIRMED.