F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

D A V I D T A M M A N , D efendant-Appellant

. No. 13-50463

D.C. No. 2:11-cr-01165-PSG-2

OPI NI ON

A ppeal from the United States District Court for the Central District of California Philip S. Gutierrez , District J udg e, Presiding

Arg ued and Submitted N ovember 21, 2014—Pasadena, California

F iled April 3, 2015

B efore: W illiam A. F letcher and J ay S. B y bee, Circuit J udg es, and David Alan Ez ra, District J udg e. *

Opinion by

J u dg e Ez ra

* T h e Ho n o rab l e D a v i d Al a n Ezra, D istrict J u d g e f o r th e U.S. District Co u rt f o r th e District o f

Haw aii, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. T A M M A N 2

SUMMARY * *

Crim inal Law

The panel a ffirmed a co n v i c tion and sentence for conspiracy to obstruct justice, a ccessory after the fact to mail f r aud and securities law violations, altering documents t o influence a federal investig ation, and aiding and abetting false testimony at an SEC deposition.

The panel held that the Sentencing Guidelines

comm en t a ry prohibiting simultaneous application o f
t h e B r o k e r

- D e a l e r e n h a n c e m e n t u n d e r U

. S

. S

. G

. § 2B 1.1(b)(18)(A) (2012) (2014 version at U.S.S.G. § 2B 1 .1(b)(19)(A)) and the Special Sk i ll enhancement under U.S.S.G. § 3B 1.3 does not apply wh en t h e B rokerDealer enhancement pertains specifically to a p r incipal’s offense and the Special Skill enhancement pertain s to a defendant-accessory ’s offense.

T h e p anel held that in calculating a loss fig ure g reate r than $20 million under U.S.S.G. § 2B 1 .1(b)(1), the district
court correctly held that the full measure of the loss inflicted by a co-defendant’s crime w ould have been foreseeable to the defendant despite his status as a mere accessory to that crime. The panel like wise held that in finding that the defendant’s crime involved more than 50 v i c t i m s under U.S.S.G. § 2 B 1.1(b)(2), the district c ourt di d not err by including victims of the c o-defendant’s crime, where the defendant did

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. T A M M A N 3

n o t have actual knowledg e of those victims but the victim s were reasonably

foreseeable to him.

The panel held that the d istrict court did not err in finding
t hat the defendant, a practicing a ttorney and partner a t a major law firm, was competent to waive his jury trial and that his waiver was knowing

and intellig ent.

The panel held that the district court did not pl ainly err (1) in ex cluding a non-lawy e r’s testimony reciting f acts a nd the lega l conclusion that the d efendant acted in conformity with unidentified SEC rules and reg ulation s a n d o therwise did
not break the law; (2) in determini n g t h at the district court

was capable of understanding
, throug h a written proffer in a trial brief r ather than in live testimony in this bench trial, an

ex p ert’s opinion reg arding the defendant’s professi o n a l a nd

e t hical duties as an attorney ; and (3) in admitt i n g coconspirator nonhearsay testimony

.

COUNSEL

Alan M. Dershowitz (arg ued), Cambridg e, Massachusetts; D a v id Duncan, Z alkind Duncan & B ernstein L L P, B oston, Massachusetts; W illiam J

. G eneg o , S a nta Monica, California, for Defendant-Appellant.

P au l G

. Stern (arg

ued) and Elana Shavit Artson, A ssist a n t United States Attorney
, Office of the United States Attorney
, L os Ang eles, California, for Plaintiff-Appellee.U N I T E D S T A T E S V

. T A M M A N 4

OP INION

EZ RA, District J udg e:

Appellant David Tamman raises five issues in his appeal from the district court’s judg ment of c o nviction and sentence. W e beg in b y addr e s sing an issue of first impression, that is, whether the district court erred a t sentencing by apply ing both the “B roker-Dealer” enhancement under U nited S t ates Sentencing Guideline Manual (U.S.S.G.) § 2B 1.1(b)(18)(A) (2012) (2014 version at U.S.S.G. § 2B 1.1(b)(19)(A)) and the “Special Skill” enhancement under U.S.S.G. § 3B 1.3. W e hold that the Sentencing G uidelines commentary p rohibiting simultaneous a

pplication of the Broker-Dealer and Special Skill enhancements does not a pply when the B r oker-Dealer enhancement pertains specifically to a principal’s offense a nd the Special Skill enhancement per t a i n s to a defendantaccessory ’s offense.

W e then ad d r e ss Tamman’s additional bases for appeal: his arg uments that (1) his waiver of his rig h t to a jury trial

was not knowing
, voluntary
, a nd i n t el lig ent; (2) the district
court erred in ex cluding two proffered ex perts; (3) the district
court erred in admitting the statement of an alleg ed coconspir a t o r ; and (4) the district court erred in calculating loss and victim amounts, as required under th e Sentencing Guidelines. W e affirm the dist r i c t c ourt’s conviction a nd
sentence.

I. F actual and P rocedural History

I n 2003, Tamman, an attorney licensed in Californ i a, beg an performing work for NewPoint F i n a ncial Services, I nc., a company owned by J ohn Fa r a h i

. To raise moneyU N I T E D S T A T E S V

. T A M M A N 5

throug h NewPoint, F arahi made private offering s o f debentures. NewPoint did not reg ister the debentures wi th the SEC, and while it took steps to make it appear that it was comply ing with federal securitie s law pertaining to unreg istered securities—including hiring Tamman to p repare private placement memoranda (PPMs) for the debentures—it in fact reg ularly failed to disclose material i nformation to investors, in violation of the securities laws.

I n 2003, Tamman p repared a PPM that failed to disclose all materia l risks a

n d facts pertaining to the investment. I n 2004, when the N ational A ssociation of Securit i es Dealers,

now known as the F ina n cial I ndustry Reg ulatory Authority (F I NRA), beg an an ex amination of NewPoint that r equired disclosure of the 2003 PPM, Tamman made substantial chang es to the 2003 PPM and provided the new, backdated version to F I

NRA without d isclosi n g that any chang es h ad been made.

F rom 2005 to 2009, F arahi raised over $30 million from investors throug h debentures. Althoug h he represented to the investors that these debentures were low-risk investments, F arahi used the funds for various undisclosed purposes, including pay

ment of his own personal ex penses, principal
repay ments to previous investors, and hig her -risk futures opti o n s t rading

. I n 2008, his loss of approx imately $26 million from option trading sig nificantly hampered h is ability
to repay NewPoint investors and creditors. N evertheless, he

c o ntinued to assure investors that their funds were safe a n d beg an to r aise additional money to pay back prior in v e s t o r s, sustain his personal ex penses, a n d eng ag e in options trading

.

I n 2009, the SEC visited NewPoint’s offices while i n v e s tig ating a tip that F arahi was running a Ponz i sche m e.U N I T E D S T A T E S V

. T A M M A N 6

After meeting with F a

r ahi, Tamman created more backdated versions o f PPMs with added disclosures. Th r o ug hout the SEC investig ation, Tamman continued to edit backdated PPMs and promissory

notes.

I n 2012, Tamman was indicted a n d charg ed with o ne count of conspiracy to obstruct justice, one count of accessory after the fact to mail fraud and securities law violations, five
counts o f altering d ocuments to influence a fe d e r al investig ation, and three counts of aiding a nd abetting F a

rahi’s false testimony at an SEC deposition. On O ctob e r 5
, 2012, Tamman waived his r ig ht to a jury trial and opted for a bench trial. D uring in limine hearings o n October 1, 2012, a nd October 15, 2012, the district court e x cluded Tamman’s

ex p erts, Mason Dinehart and Stanley L amport. The district
court offered Tamman the chance to revise Dinehart’s report and requested that the substance of L amport’s report be included in a trial b rief. His case pro c e e d e d to trial on October 31, 2012.

I n November 2012, the district court f ound Tamman
g uilty
, and in September 2013, sentenced h i m t o 84 months of imprisonment, well below the calcu l a ted Sentencing Guidelines sentencing rang e of 151 to 188 months.

II. Discussion

On a pp e a l
, T amman a

rg ues that his conviction was the result of an unconstitutional jury waiver and ex pert testimony

ex c lusion
, a s well as inadmissible h earsay

. He also arg ues that t h re e e rrors at sentencing —simultaneous application o f the B r oker-Dealer and Special Skill enhancements, a ndU N I T E D S T A T E S V

. T A M M A N 7

c a lculation of loss and number o f v ictims—necessita t e remand. W e disag ree. 1

A. Alleged Sentencing Errors

The d istrict court sentenced Tamman as an accessory a fter the fact to F arahi’s crimes of mail fraud a nd unreg ulated offer and sale of secu ri ties, pursuant to U .S.S.G. § 2X3.1. That Sentencing Guideline p rovides that the applicable base offense level f

or a defendant-ac c e ssory is the total offense level of the pr i ncipal’s crime, including a ny applicable special offense characteristics that were k nown or reasonably should have been known by the d efendant-accessory
, less six l e v e l s

. U.S.S.G. § 2X3.1 cmt. n.1. Once the district cou r t determines the base offense level, the district court must also
ap p l y any specific offense characteristics a pplicable to the defendant-accessory ’s conduct.

I n Tamman’s case, the base offense level was th e r e fo re the total offense level f

or F arahi’s mail fraud and se c urities crimes, which is prescribed by U.S.S.G. § 2 B 1

. 1, less six levels. F arahi’s mail fraud and securities crimes included the following special offense c haracteris t i c s: a 22-level enhancement f

or loss under § 2B 1.1(b)(1)(L ) ; a four-level enhancement under § 2B 1.1 ( b ) (2)(B ) because the crime involved 5 0 or more victims; and a four-level enhancement for F arahi’s r ole as a n investment adviser during the

c o m m i s s i o n o f a s e c u r i t i e s l a w v i o l a t i o n u n d e r § 2B 1.1(b)(1 8 )(A). The d istrict court found that the total offense level fo r Fa rahi’s mail and securities crimes, including applicable special offense characteristics, w as 37. Pursuant to U.S.S.G. § 2 X3.1(a), the district court reduced the

1 W e h av e j u

risd ictio n p u rsu an t to 2 8 U.S.C. § 1 2 9 1.U N I T E D S T A T E S V

. T A M M A N 8

total offense level by 6 to a scertain T a m m a n’s base offense level for h is accessory a fter the fact crime. However, because § 2X3.1 c aps the max imum b ase o ffense level a t 30, the district court determined that Tamman’s base offense l e v el was 30.

Upon calculating the total offense level for F arahi’s crime and subtracting the r equisite levels, the district court then added special o f

fense characteristics specific to Tamman: a two-level enhancement for Tamman’s use of his lawy er i ng skills to commi t the crime under § 3B 1.3 and a two-level enhancement for Tamman’s role in impeding the SEC investig ation under § 3C1.1. After apply ing the Special Skill and Obstruction of J ustice enhancements, the district cou r t calculated Tamman’s total offense level as 34.

Tamman challeng es the d ual applicati o n o f the B rokerDealer and Special Skill enhancements, as well as the district

c o u r t ’ s factual finding s as to the total loss amount and total

nu m b e r of victims. W e review the district court’s interpretation of the Sentencing Guidelines de novo a nd its finding s of fact at sentencing for clear error. United States v

. Gadson , 763 F .3d 1189, 1219 (9th Cir. 2014).

1. Application of Broker-Dealer and Special Skills Enhancem e nts

Tamman c ontends that the d ual a pplication of the B rokerDealer enhancement and the Special Skills enhancement was improper a

nd barred by the Sentencing Guideline s

. I n support, Tamman cites the Sentencing Guideline Application Note to § 2B 1.1(b)(18)(A), which states, “[ i] f subs e c t i on ( b)(18) applies, do not a

pply § 3B 1 .3.” U.S.S.G. § 2 B1

. 1 cmt. n.14(C) (2012) (2014 version at cmt. n.15(C)).U N I T E D S T A T E S V

. T A M M A N 9

As this court has long acknowledg ed, the Sen t e n c i ng Guidelines recog n iz e the problem s inherent in double countin g and, in an effort to avoid increasing a defendant’s
sentence for a harm that has already b e en fully taken i n to account, ex pressly prohibit the dual application of Sentencing Guidelines that a ccount for the same harm. United States v. Smith
, 719 F .3d 1120, 1124 ( 9 t h Cir. 2013) (citing United States v. Rosas
, 615 F .3d 1058, 1065 ( 9th Cir. 2010); United States v

. Holt
, 5 1 0 F. 3 d 1007, 1 011 (9th Cir. 2007)). “However, ‘w h en e ach invocation o f the behavior serves a unique purpose under the Guidelines,’ we conclude that the Commission ‘authoriz ed a nd intende d’ the c umulative application of both provisions.” Id. (quoting Holt
, 510 F .3d at 1011).

I n 2003, the Sentencing Commission amended the B roker-Dealer enhancement to c over r e gi stered brokers a nd dealers, associated persons of a broker or dealer, investment advisers, and a ssociated persons of an investment adviser. U.S.S.G. app. C, vol. I I
, at 367 (amen d

. 6 53) (2014). The rationale accompany

ing the amendment ex plains:

The Commission concluded that a four level

e n h an c e m e n t appropri a t el y r e f l e c t s t h e culpability of offenders who o ccupy s u ch positi o n s and w ho are subject to heig htened fiducia r y duties imposed by securities law o r commodities law similar to duties imposed on officers and directors of publicly traded corporations. According ly
, the court is not required to determine specifically whether the d efendant abused a position of trust in or d e r for the enhanceme n t to a pply
, and a corresponding a

pplication note provides that,U N I T E D S T A T E S V

. T A M M A N 10

i n ca ses in which the n ew, four level

e n h ancement applies, the e x isting two lev el enhancement for abuse of position of t r ust at §3B 1.3 (Abuse of Position of Trust or Use o f Special Skill) shall not apply

.

Id.

As the Commentary m a kes clear, the prohibition on the d u a l application of the B r oker-Dealer and Special Sk i l l enhancements reflects the C o m mission’s view that the B roker-Dealer enhancement already accounts for the B rokerDealer’s rol e and that a p plication of both enhancements would amount to d o u b le c ounting

. However, w e hold that this ra t i o n a l e does not apply in cases like the one at h and, where the B roker-Dealer enhancement r eflects the behavior of the principal a

nd the Special Skill enhanceme n t r e f lects separate and distinct b ehavior of the defendant-accessory

. I n that situation, applica t i o n o f both special offense characteristics is n ot double counting ; it reflects different conduct committed by two different parti e s

. We therefore affirm the district court’s appl ication of both enhancements in this case.

2. Calculation of

Loss Am ount

Nex t, Tamman a

rg ues that the district court e rred i n calculatin g a loss fig ure g reater than $20 million under U.S.S.G. § 2B 1.1(b)(1) because he was o n l y aware of $11 million in loss. According to Tamman, the ex tent of the loss

was n ot an essential e lement of F arahi’s crime and he therefore cannot b e charg ed with knowledg e o f that l o s s amount by

his mere status as accessory to that crime.U N I T E D S T A T E S V

. T A M M A N 11

U

. S.S.G. § 2B 1.1(b)(1) requires a sentencing court t o increase the base offense level in accordance with the amount of actual or intended loss that the crime inflicted. Actual loss includes the amount of p ecuniary h a r m that the “defendant knew or, under the circumstances, reasonably should h ave k n o wn, w as a p otential result of the offense.” U.S.S.G. § 2B 1.1 cmt. n.3(A)(I ), ( iv). Under U.S.S.G. § 2X3 .1, the
amount of loss is limited to the a mount of whi ch the defendant-accessory k

new or should have reasonably known. Id. § 2X3.1 cmt. n.1.

A lthoug h T amman is correct that the ex tent of loss w a s not an essential element of F arahi’s crime, the district court did not end its loss e x amination there. F irst, the district court

ex a mined the PPMs that Tamman backdated. I t credited the
amounts disclosed therein beca u se T a mman h ad altered the disclosures so that it would appe a r t h at the d isclosures orig inally made to investors matched the current financial situation of NewPoint. Given that the p urpose of revising the PPMs w as to r eflect NewPoint’s actual financial condition, the d istrict court did n ot clearly e rr by rely ing on the amounts disclosed in the revised PPMs. Second, the district court properly credited the testimony of Elaheh Amouei, F a rahi’s bookkeeper, which indicated that Tamman had substantial knowledg e of F arahi’s activities. B a sed on this combination of evidence, t he district court c o rrectly held that the full

measure of F arahi’s loss wo u ld have been foreseeable to Tamman.

3. Calculation of

Num ber of

Victim s

F inally
, Tamman a

rg ues that the distr i c t c ourt erred in finding that the crime in v o lved more than 50 victims under § 2B 1.1(b)(2) because Tamman w as only aware of at most 43U N I T E D S T A T E S V

. T A M M A N 12

investors. Accor d ing to Tamman, the evidence only demonstrates that he knew of 30 investors from the 2008 offering a nd 13 investors from previous offering s.

U.S.S.G. § 2B 1.1(b)(2) requires th e district court to increase the b ase offense level in accordance with the number of victims that the offense involved. Once ag ain, b ecause o f § 2X3.1’s knowledg e require ment, the c ourt can only count the numbe r of victims a

b out whom the d efendant-accessory k n e w or reasonably should h ave known. U.S.S.G. § 2X 3

. 1 cmt. n.1.

A l thoug h Tamman is correct that the e vidence only
proves that Tamman had actual knowledg e o f 43 victims, the district court did not err in finding that Tamman could have reasonably foreseen the additional 41 victims of F a rahi’s crime. The district court consid e r ed that Tamman, as an accessory after the fact to F a rahi, had knowledg e of F a rahi’s mail fraud a

nd Ponz i scheme. The mere fac t t h a t h i s actual k n o w l e d g e may have b een limited to 43 victims does not preclude a finding that all of the vi ctims were reasonably foreseeable to him. According ly
, the d istrict court did not clearly err in calcul a t ing the number of victims under § 2B 1.1(b)(2).

B. Jury Waiver

Tamman’s second claim on appeal is that the district court failed to mak e a n a dequate inquiry or provide sufficient information to Tamman to ensure his jury waiver was knowing
, voluntary
, and intellig ent. Tamman contends that,
upon learning that Tamman took medicati ons and that T a mman was unsure as to whether h e was “under t h e influence, ” t h e district court had the duty to c onduct an in-U N I T E D S T A T E S V

. T A M M A N 13

d e p t h c o l l o q u y t o a s s e s s T a m m a n ’ s c o m p e t e n c e. Additionally
, Tamman arg ues that b e c a u s e the district court g ave him less time tha n h e o rig inally requested to decide whether to waive a jury
, his stress and anx iety ma y h ave

ex a c erbated the impact o f his c onditions and medications. Fi n a lly
, Tamman arg u es that the district court failed to sufficiently inform him of the rig hts he would relinquish pursuant to a jury w aiver, as required under United States v. Cochran
, 770 F .2d 850, 853 (9th Cir. 1985). “W e review the adequacy o f a jury -trial waiver de n ovo.” U nited States v

. Shorty , 741 F .3d 961, 965 (9th Cir. 2013).

1. Adequacy of

the Inquiry

A criminal defendant may waive his rig ht to trial by jury if there is (1) a written w aiver that is knowing and intellig ent, (2) g overnmental consent, and (3) c ourt a p p r oval. F ed. R. Crim. P. 2 3(a); United States v

. Duarte-Higareda
, 113 F .3d 1000, 1002 (9th Cir. 1997). A lthoug h w r i t t en waivers a re presumptively knowing and intellig ent, a d i s t rict court must nevertheless conduct an in-depth colloquy if “the defendant’s mental or emotional state is a subst an t ial issue.” United States v. Christensen
, 1 8 F.3d 822, 825 (9th Cir. 1994). I n other words, “[ t] he s u spected presence of mental or emotional instability elimi n a t es any presumption that a written w aiver is voluntary , knowing or intellig ent.” Id. at 826.

Here, when Tamman stated that he was unsure whether he

was under the influence of his medications, the district court carefully inquired whether those medications affected his understanding of the proceeding s and the nature o f t h e rig ht that he was waiving

. Tamman responded that they did not. Moreover, T amman’s behavior and r e spo n ses to questions throug hout the proceeding indicated that he was competent toU N I T E D S T A T E S V

. T A M M A N 14

waive his r ig ht to ju r y trial, and Tamman’s attorney represented to the d istrict court that T a mman was competent to make the waiver. Tamman presents n o e vidence that the

ex p edited time frame for the jury waiver would have had any effect on his competence.

T h e o n ly evidence upon w hich the district court c oul d rely were the responses Tamman p rovided to its questions, his behavior t h r oug hout the hearing
, and the representations made by his attorney

. T h at evidence indicated that Tamman

was c ompetent to waive his jury trial, and this c ourt affirms the district court’s finding

.

2. Suf f iciency of

the Colloquy

B e fore a defendant waives his rig ht to a jury , the district
court must ensure that he knows w hat the rig ht g uarantees. Cochran
, 770 F .2d at 8 53. According ly
, distr i c t courts a re

s trong ly encourag ed, althoug h not r e quired, to inform defendants that “twelve members of the community compose

a jury
, ” that “the defendant may take part in jury selection,” that “jury verdicts must b e u nanimous,” and that “the court alone d ecides g u ilt or innocence if t he defendant waives a jury trial.” Id. H o wever, the sufficiency of the c olloquy is hig hly dependent on the education and leg al sophistication o f the defendant, and shorter collo q u i e s can be sufficient to ascertain whether the waiver is knowing and voluntary

. See Shorty , 741 F .3d at 968 ( noting that an abbreviated colloquy mig ht have been sufficient had the defendant been “intellectually sophisticated and hig hly educated”).

Here, as a practicing attorney and partner at a maj o r law f i r m , T a mman was well aware of the rig hts that a jury trial

w ould entail. The district court reasonably concluded t h atU N I T E D S T A T E S V

. T A M M A N 15

Tamman’s competence, backg round, and ex perience ensured that h e understood the mechanics of a jury trial and the rig hts he w as w aiving
, even without an in-depth c o l l o q uy o r a recitation o f the four facts mentioned in Cochran

. According ly
, this court affirms the d istrict court’s finding o f knowing and intellig e nt waiver.

C. Evidentiary Errors

F inally
, Tamman challeng e s the district court’s ex clusion of e x pert testimony f

r o m M ason Dinehart and Stanley L amport, as well as the admission of a state m en t from Amouei. B ecause Tamman did not preserve these evidentiary objections, the court reviews for plain error. 2

2 W h en ex clu din g Din eh art’ s o p in io n s , th e d istrict co u rt sp ecif ically in d icated th at it o n ly ex clu d e d D i neh art’ s testim o n y as w ritten an d g av e T am m an th e op p o rtu n ity to rev ise an d resu b m it th e o p i n i o n s , m ak in g i t clear t h at t h e ru lin g w as p r o v i s i o n al. T o preserv e th e erro r f o r ap p eal, T am m an w ou ld h av e n eed ed to m ak e an of f er o f p ro o f t o th e d istrict co u rt,

o u tlin in g t

h e testim o n y th at w as ex clu d ed . B ecau se T am m an d id n o t d o

so , h e f ailed to preserv e th e erro r o n t h e ex clu sio n o f Din eh art’ s testim o n y

an d th e co u rt rev iew s f

o r p lain erro r. S

ee Un ited S ta tes v. A r c h d a le
, 2 2 9 F.3 d 8 6 1
, 8 6 4 (9 th Cir. 2 00 0 ) (“ [T h e] co n ten tio n th at t h e m ere f ilin g

o f a m o tio n in lim in e p reserv es f or ap p eal th e issu e o f t

h e ad m issib i l ity of th e ev id en ce to w

h ich th e m o tio n

is d i rected is w ith o u t m erit.”).

Sim ilarly
, th e d istrict co u rt w as clear w h en it ex clu ded L am

p o rt’ s

ex p ert rep or t t h a t T am

m an w as to rev isit th e ad m issib ility o f L am p o rt’ s testim o n y in b o th h is trial b rief an d d u rin g th e co u rse o f trial. B ecau s e th e d istrict co u rt’ s in lim in e ru lin g ex clu d in g L am p o rt w as n o t d ef

in itiv e an d b ecau se T am

m an f ailed to rev isit t

h e issu e o r p resen t a su

b seq u en t o f

f er

o f p ro o f
, th e co u rt rev iew s th e d istrict co u rt’ s d ecisio n f o r p l a i n erro r. Un ited S t ates v. Bish o

p , 2 9 1 F.3 d 11 0 0
, 1 1 0 8 (9 th Cir. 2 0 0 2 ) ( “In th e ab sen ce o f an o f

f er o f p ro o f

. . . rev ersal w ill lie on ly w h ere th ere is p lain

erro r.” (in tern al q u o tatio n m ark s o m itted )).U N I T E D S T A T E S V

. T A M M A N 16

1. Expert Opinions

I n g eneral, an ex pert may only testify as to “scient i fi c , technical, or other specializ ed k nowledg e [ that] will assist the trier of f act to understand the evidence or determine a fact in issue”; an e x pert cannot testify to a matter of law amounting
to a leg al conclusion. F ed. R. Evid. 7 02(a); Ag u i lar v. I nt’l Longshoremen’s Union Local No. 10
, 9 66 F .2d 443, 447 (9th Cir. 1992).

The district court conclude d that Dinehart’s opinion provided only a recita t i o n o f f acts and the leg al conclusion that Tamman acted in conformity with unidentified SEC rules and reg ulations and otherwise did not break the law. This is
not a proper e x pert o pinion. Moreover, as the district court noted, Dinehart, who is n ot a lawy er, does not appe a r t o b e qualifi e d t o offer the opinions that he p resented. According ly
, the district court did not p lainly err in ex cluding Dinehart’s testimony

.

The district court ex c luded L amport’s opinion reg arding Tamman’s professional and ethical du ties as an a ttorney in

Fin ally
, T am

m an d i d n ot o b

j ect to A m o u ei’ s p ay

m en t testim o n y at th e tim e it w as elicited

. He arg u es th at h is o bj ectio n to ea rlier testim o n y b y A m o u ei, o n t h e g ro u n d s th at sh e w as n o t a co co n sp irato r, w as su f f icien t to p reserv e an o bj ectio n t o h er later p ay m en t t estim o n y

. Ho w ev er, th e p ay m en t testim o n y

is co m p letely d istin ct f ro m th e earlier testim o n y , an d th e d istrict co u

rt did n o t m ak e a b lan k et ru lin g th at an y h earsay statem en t f ro m A m o u ei au to m atica l ly qu alif ied as b ein g in th e co u rse o f an d in f u rth eran ce o f t

h e co n sp iracy

. A cco rd in g ly
, T am m an d id n o t p reserv e th e

erro r f o r ap peal, an d th e co u r t r e v i e w s th e d istrict co u rt’ s d ecisio n f or p lain erro r. See Un ited S ta tes v. Brid g efo r th
, 44 1 F.3 d 8 6 4
, 86 9 (9 th Cir. 2 0 0 6 ) (n o t in g th at if a p arty d oes n o t “ o b j ect at trial to th e d istrict co u rt’ s d ecisio n t o ad m it a co

- co n sp irato r’ s statem en ts, [th e co u rt] rev i ew [s] th eir ad m i ssio n f o r p l ain erro r”).U N I T E D S T A T E S V

. T A M M A N 17

part because the tri a l had shifted f rom a jury trial to a bench trial and the district court did not believe live testimony was necessary on the issues presented in L a mpor t ’s report. I nstead, the district court c oncluded that the applicable ethical standards could be p rese n t ed in a trial brief. B ecause a district judg e has the discr e t ion as to the necessity of ex pert testimony
, the district judg e’s determination that he was capable of understanding L amport’s testimony throug h a written proffer in a trial brief was not plain error. See Hooper

v

. Lockheed Martin Corp.
, 688 F .3d 1037, 1053 (9th C i r. 2012) ( “[ E] ven if ex pert testimony may assist the trier of fact, the trial court has b road discretion to ad m i t or ex clude it.” (alteration and internal quotation marks omit t ed) (quoting Beech Aircraft Corp. v. United States
, 51 F .3d 834, 842 (9th Cir. 1995) (per curiam)).

2. Am ouei’s Statem e nt

Under F ederal Rule of Eviden c e 8 0 1 ( d)(2)(E), a statement of one coconspirator is admissible nonh earsay ag ainst other coconspirators as an admission of a p ar t y -opponent, if the
statement was made during the c o u rse o f and in furtherance of the common objectives of the conspiracy

. “Althoug h mere

c o n v e r s a t i o n s o r n a r r a t i v e d e c l a r a t i o n s b e t w e e n coconspirators are n ot in themselves sufficient to invoke the

ex c e ption to the hearsay r ule, statements m ade to keep
coconsp i r ators abreast of a n ong oing conspiracy ’s activities satisfy the ‘in furtherance of’ requirement.” United S tates v

. W illiams , 989 F

. 2 d

1061, 1068 (9th Cir. 1993).

I n the statement a t issue, Amouei testified that F a rahi told her that he had previously settled one of T amman’s leg al bills by pay ing Tamman in cash. F arahi’s s t a t e ment informed A mouei of the state of the conspiracy and the bookkee p i n gU N I T E D S T A T E S V

. T A M M A N 18

necessarily associated with the conspiracy
, and it took place while the conspiracy

was o ng oing

. Moreover, the statement helped further the conspiracy by informing Amouei about the transfer of money w ithin the conspiracy
, which ensured that the bookkeepi n g o f the conspiracy was accurate. The testimony is therefore coconspir a t o r nonhearsay and the district court did not plainly err in admitting the statement.

III. Conclusion

I n conclusion, we affirm the district c ourt’s d ual application of the B roker-Dealer a nd Special Skill

e n h a n c ements under the facts of this case, since the f ormer reflected the principal’s conduct and the latt e r r e flected the defendant-accessory ’s conduct. Additionall y , we hold that the district c ourt did not err in calculating the loss or victim fig ures a t sentencing

. F inally
, w e a ffirm the d istrict court’s finding of jury

waiver and its evidentiary ruling s.

AF F IRMED.