NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

LAWRENCE J. GERRANS, AKA Larry 

Gerrans, 

Defendant-Appellant.

No. 20-10378

D.C. Nos. 

3:18-cr-00310-EMC-1 

3:18-cr-00310-EMC

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Argued and Submitted October 19, 2021

San Francisco, California

Before: WATFORD and HURWITZ, Circuit Judges, and BAKER, ** International 

Trade Judge.

Partial Concurrence and Partial Dissent by Judge BAKER.

Lawrence Gerrans challenges his convictions and sentence for six counts of 

financial crimes (wire fraud and money laundering), three counts of making false 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable M. Miller Baker, Judge for the United States Court of 

International Trade, sitting by designation.

FILED

JAN 7 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 6

statements to the FBI, and three counts of post-release misconduct (contempt of 

court, witness intimidation, and obstruction of justice). We affirm.

1. The government introduced sufficient evidence to support the false 

statement convictions (Counts 7–9). Chris Gerrans testified that Gerrans instructed 

him to create the Halo invoices, dated January through March 2010, years after 

Gerrans and his wife supposedly completed work for Sanovas. However, signed 

statements that the couple submitted during their bankruptcy proceedings indicated 

that, as of April 2010, Sanovas was not a source of income for them. Considering 

the contradiction between those statements and the Halo invoices, as well as the 

unusual circumstances under which Chris created the invoices, a rational jury 

could infer that the invoices were falsified. 

Regarding the March 2015 promissory note from Gerrans to Hartford 

Legend, the government’s evidence established that no such loan was recorded on

the house’s title. The government also introduced evidence establishing that when 

Gerrans applied for a mortgage on the house in December 2015, his submissions to 

the bank indicated that there were no open loans against the property. A rational 

jury could infer from this evidence, and the fact that Hartford Legend was 

established in February 2015 and never filed any tax returns, that the promissory 

note did not reflect a real loan and thus had been falsified. 
Page 3 of 6

Based on all of the evidence presented at trial, a rational jury could also 

conclude that Gerrans acted knowingly and deliberately when he presented the 

falsified invoices and promissory note to the FBI during its 2017 investigation. 

2. The government introduced sufficient evidence to support the postrelease misconduct convictions (Counts 10–12). The jury was entitled to credit 

testimony from Chris Gerrans and Ryan Swisher about the argument at the storage 

facility, which both witnesses characterized as being about Gerrans’s criminal 

proceedings. Both witnesses also described Gerrans’s physical aggression toward 

his brother, and a rational jury could have inferred from their accounts that Gerrans 

was acting with an intent to influence Chris’s testimony. Moreover, the three postrelease misconduct counts were predicated on more than just the storage facility 

incident. Chris Gerrans also testified about other conversations in which Gerrans 

raised the charges pending against him, and the government introduced the burner 

phone that Gerrans gave to Chris to facilitate clandestine communications between 

them after the district court had ordered Gerrans not to discuss the case with Chris. 

3. We agree with the district court that our decision in United States v. 

Miller, 953 F.3d 1095 (9th Cir. 2020), does not require a new trial on the financial 

crimes (Counts 1–6). Because Gerrans did not object to the challenged intent 

instruction during trial, we review only for plain error. See United States v. 

Moreland, 622 F.3d 1147, 1165–66 (9th Cir. 2010). The erroneous intent 
Page 4 of 6

instruction did not affect Gerrans’s substantial rights for the same reason it did not 

warrant a new trial in Miller: The error was rendered harmless by another

instruction requiring the jury to find that Gerrans knowingly engaged in a scheme 

to defraud or obtain money or property by dishonest means. See Miller, 953 F.3d

at 1101–03. That second instruction ensured that the jury would not have 

convicted Gerrans of wire fraud unless it found that he intentionally cheated

Sanovas of funds. 

Gerrans argues that his lawyer failed to present evidence showing that he 

believed he was entitled to the money he took from Sanovas. Those arguments, 

while relevant to his ineffective assistance of counsel claims, do not show that the 

jury could have convicted Gerrans without finding that he intended to cheat.

4. We decline to resolve Gerrans’s claims for ineffective assistance of 

counsel. The record as it stands now does not contain evidence establishing that 

his trial counsel’s performance fell below an objectively reasonable standard or 

that Gerrans was prejudiced by any alleged deficiency. See Strickland v. 

Washington, 466 U.S. 668, 688, 692 (1984). We therefore adhere to our usual

practice of deferring resolution of these claims until post-conviction proceedings. 

See United States v. Lillard, 354 F.3d 850, 856 (9th Cir. 2003). Nothing in our

decision precludes Gerrans from conducting additional investigation and asserting 

his ineffective assistance claims in a 28 U.S.C. § 2255 motion.
Page 5 of 6

5. The district court did not err in rejecting Gerrans’s claims of 

prosecutorial misconduct. Gerrans has not identified any evidence introduced at 

trial, or any statement made by the government, that was actually false. See United 

States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). The May 2013 email 

showing that Sanovas’s then-CFO approved certain expenses on the corporate 

credit card does not directly contradict any aspect of Lloyd Yarborough’s 

testimony about his own analysis of Gerrans’s expenses. Gerrans’s evidence does 

not render false the board members’ testimony that they never received Gerrans’s 

existing employment agreement. The same is true of the board members’

testimony that they would not have approved the restated employment agreement

had they known about the money Gerrans had already taken. As noted above, 

Chris Gerrans’s testimony regarding the storage facility altercation was supported, 

not contradicted, by Swisher’s testimony. Finally, given the evidence introduced 

at trial, there was nothing inappropriate about the government’s portrayal of 

Gerrans, Halo, and Hartford Legend in its closing argument. Nor did the 

government mislead the jury by stating that co-founder Erhan Gunday’s departure 

from Sanovas did not trigger a payout for Gerrans.

6. The district court correctly calculated the applicable Sentencing 

Guidelines range. The Guidelines required the court to group the post-release

misconduct counts with the underlying wire fraud and money laundering counts
Page 6 of 6

before determining the group offense level. See U.S.S.G. §§ 3D1.1, 3C1.1 cmt. 

n.8. The court then properly applied the three-level enhancement for crimes 

committed while on release to the group offense level. See U.S.S.G. § 3C1.3.

7. For the reasons stated above, we affirm Gerrans’s convictions and 

sentence. We decline to rule on his ineffective assistance of counsel claims.

AFFIRMED. 
United States of America v. Lawrence J. Gerrans, No. 20-10378

BAKER, Judge, concurring in part and dissenting in part:

I join Parts 1, 2, 5, and 6 of the memorandum disposition. But I respectfully 

dissent as to: (i) Gerrans’s ineffective assistance of counsel challenge to his 

convictions under Counts 1–6 (wire fraud and money laundering) and 10–12

(contempt, witness tampering, and obstruction of justice), and (ii) Gerrans’s jury 

instruction challenge to his convictions under Counts 1–6. With regard to those 

charges, I would vacate Gerrans’s convictions and remand for a new trial.

1. The majority correctly observes that ineffective assistance claims are 

normally resolved through a subsequent collateral proceeding brought under 

28 U.S.C. § 2255. Ante at 5 (citing United States v. Lillard, 354 F.3d 850, 856 (9th 

Cir. 2003)). But this is not always necessary; in some cases, the record is sufficiently 

developed that an appellate court can decide the issue on direct appeal. See United 

States v. Alferahin, 433 F.3d 1148, 1160 n.6 (9th Cir. 2006). I think this is one such 

case, and that both judicial economy and fairness to Gerrans support lancing this boil 

now.

Trial counsel is “typically afforded leeway in making tactical decisions 

regarding trial strategy.” Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006) 

(citing Riley v. Payne, 352 F.3d 1313, 1324 (9th Cir. 2003)). But “counsel cannot be 

said to have made a tactical decision without first procuring the information 

necessary to make such a decision.” Id. (citing Riley, 352 F.3d at 1324).

FILED

JAN 7 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 8

Here, because Gerrans’s trial counsel never bothered to interview several key 

witnesses, he could not possibly have made professionally responsible decisions 

regarding which witnesses to call and which evidence to introduce. According to the 

declaration of Gerrans’s post-trial counsel, who reviewed the relevant records, trial 

counsel never interviewed Sanovas’s CFO Farrell, whose emails established that

Gerrans’s expense reimbursements were authorized, and who calculated that the 

company owed Gerrans over $700,000 in deferred compensation. Nor did Gerrans’s 

trial counsel interview the attorneys at King & Spalding, who specifically advised 

Gerrans that he would face steep tax penalties if he delayed in taking the money due 

to him under his deferred compensation arrangement. As Gerrans’s only defense to 

the wire fraud charges against him was that he thought he was entitled to the receipt 

of the funds in question, trial counsel’s failure to at least interview Farrell and the 

King & Spalding attorneys was inexcusable, as those witnesses might have vouched 

for his defense.

As if that weren’t bad enough, trial counsel also inexcusably failed to 

interview Swisher and Huante, the two witnesses to the confrontation between 

Gerrans and his brother Chris that undergirds the contempt, witness tampering, and 

obstruction of justice charges. Again, these witnesses might have vouched for 

Gerrans’s defense at trial, and to make a professional judgment about whether to call 
Page 3 of 8

them, counsel needed to interview them.1

“[C]ounsel has a duty to make reasonable investigations or to make a 

reasonable decision that makes particular investigations unnecessary.” Strickland v. 

Washington, 466 U.S. 668, 691 (1984). “A lawyer who fails adequately to 

investigate, and to introduce into evidence, [information] that demonstrates his 

client’s factual innocence, or that raises sufficient doubts as to that question to 

undermine confidence in the verdict, renders deficient performance.” Reynoso, 462 

F.3d at 1112 (quoting Lord v. Wood, 184 F.3d 1083, 1093 (9th Cir. 1999) (brackets 

in Lord)). In that same vein, we have held that “[f]ailure to investigate possible

exculpatory witnesses can be ineffective assistance.” United States v. Mendoza, 107 

F.3d 878, 1997 WL 97279, at *1 (9th Cir. Mar. 4, 1997) (citing Sanders v. Ratelle, 

21 F.3d 1446, 1456–58, 1461 (9th Cir. 1994)); see also United States v. Tucker, 716 

F.2d 576, 583 (9th Cir. 1983) (failure to even attempt to interview key prosecution 

witnesses constitutes deficient performance).

Here, there is simply no conceivable tactical justification for defense 

counsel’s flagrant abdication of the duty to fully prepare. See Riley, 352 F.3d at 

1318–19. Since the failure to interview many critical witnesses in connection with 

1 Gerrans also argues that “there is no evidence” that his trial counsel sought to

interview the Sanovas Board members, but on this record neither is there any 

evidence to the contrary, and therefore I do not rely on this argument.
Page 4 of 8

Counts 1–6 and 10–12 is so glaring,2 I do not think we need to wait for Gerrans to 

develop a separate record through a 28 U.S.C. § 2255 motion. Riley, 352 F.3d at 

1319–20. In my view, these “multiple deficiencies have the cumulative effect of 

denying a fair trial” to Gerrans as to those counts. Ewing v. Williams, 596 F.2d 391, 

396 (9th Cir. 1979).3

2. The majority acknowledges that as to the wire fraud charges (Counts 1–5), 

the intent element of the jury instruction was erroneous under United States v. Miller, 

953 F.3d 1095 (9th Cir. 2020), and Shaw v. United States, 137 S. Ct. 462 (2016), 

because it allowed the jury to convict if it determined that Gerrans merely meant to 

“deceive” rather than “cheat.” Ante at 4. Nevertheless, the majority concludes—as 

2 Gerrans has not identified any critical witnesses that trial counsel failed to interview 

in connection with Counts 7–9.

3 Trial counsel’s abject failure to interview key witnesses standing alone warrants a 

new trial in connection with Counts 1–6 and 10–12, but unfortunately for Gerrans,

his counsel dug an even deeper hole at trial by failing to put on any affirmative 

defense in connection with any of the charges against him. As a result, the jury never 

learned of various potentially exculpatory documents, such as the email from Farrell 

authorizing the challenged reimbursements, the memorandum from Farrell outlining 

the deferred compensation owed to Gerrans, the email from the King & Spalding 

attorneys advising him to take the deferred compensation to avoid tax penalties, an

accounting firm’s report detailing the money owed to Gerrans, and Gerrans’s

employment agreement authorizing a loan to him to purchase a home. Nevertheless, 

unlike the failure to interview critical witnesses—which seems to me patently 

unreasonable in these circumstances—trial counsel’s highly suspect failure to put on 

any affirmative defense is better suited for resolution in a subsequent collateral 

proceeding.
Page 5 of 8

in Miller, which involved the same Ninth Circuit pattern jury instruction4

—that this 

error was rendered harmless by “another instruction requiring the jury to find that 

Gerrans knowingly engaged in a scheme to defraud or obtain money or property by 

dishonest means.” Ante at 4 (citing Miller, 953 F.3d at 1101–03) (emphasis added).5

And so, the majority reasons, “[t]hat second instruction ensured that the jury would 

not have convicted Gerrans of wire fraud unless it found that he intentionally cheated 

Sanovas of funds.” Id.

Miller, however, relied not only on the other language in the pattern jury 

instruction to find harmless error, but also on, inter alia, the jury’s conviction of 

Miller on related tax fraud charges, because that conviction foreclosed “any notion 

that the jury thought that Miller was guilty of deception, but not cheating.” 953 F.3d

at 1103. Here, there were no related charges (and convictions) that might be said to 

establish that the jury found Gerrans guilty of cheating rather than mere deception.

Because Miller’s harmless error analysis does not apply here, we should reverse and 

remand for a new trial as to Counts 1–5.

6

4 Manual of Modern Criminal Jury Instructions for the District Courts of the Ninth 

Circuit § 8.124 (2019).

5 I emphasize the disjunctive “or” in the quoted passage for the reasons explained 

below.

6 Reversal and remand for a new trial as to Counts 1–5 would also necessarily require 

reversal and remand for Gerrans’s conviction under Count 6 for money laundering 
Page 6 of 8

In any event, if Miller stands for the proposition that the majority ascribes to 

it—that the quoted language renders the jury instruction’s error on the intent element

essentially per se harmless—then I respectfully submit that Miller (while binding on 

us) itself is in error.

The pattern jury instruction used both in Miller and here provided that the

defendant was charged with “wire fraud in violation of Section 1343 of Title 18 of 

the United States Code,” and that for

the defendant to be found guilty of that charge, the government must 

prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly participated in, devised, or intended to 

devise a scheme or plan to defraud, or a scheme or plan for obtaining 

money or property by means of false or fraudulent pretenses, 

representations, or promises, or omitted facts. Deceitful statements of 

halftruths may constitute false or fraudulent representations;

Second, the statements made or facts omitted as part of the scheme were 

material; that is, they had a natural tendency to influence, or were 

capable of influencing, a person to part with money or property;

Third, the defendant acted with the intent to defraud, that is, the intent 

to deceive or cheat; and

Fourth, the defendant used, or caused to be used, an interstate wire 

communication to carry out or attempt to carry out an essential part of 

the scheme.

(emphasis added).

in violation of 18 U.S.C. § 1957, as the government conceded at argument that 

Gerrans’s convictions under Counts 1–5 and 6 rise and fall together.
Page 7 of 8

Critically, the pattern jury instruction’s first element, which contains the 

language invoked by Miller and the majority—is disjunctive: “the defendant 

knowingly participated in, devised, or intended to devise a scheme or plan to 

defraud, or a scheme or plan for obtaining money or property by means of false or 

fraudulent pretenses, representations, or promises, or omitted facts.” Although the 

second part of that formulation—“a scheme or plan for obtaining money or property

by means of false or fraudulent [actions]”—necessarily implies intent to obtain 

money or property via deceptive means (and thus cheat), the first part—“a scheme 

or plan to defraud”—does not, because the instruction’s third element defines 

“intent to defraud” as “the intent to deceive or cheat.” In short, the first part of the 

disjunctive first element of the pattern jury instruction relied on by the majority to 

salvage Gerrans’s wire fraud convictions necessarily incorporates the erroneous 

intent standard of the instruction’s third element.

Applied here, that means the jury might have concluded that Gerrans 

“knowingly participated in, devised, or intended to devise a scheme or plan to 

defraud” with the intent to “deceive” but without the intent to “cheat” Sanovas—a 

standard at odds with the Supreme Court’s decision in Shaw. See 137 S. Ct. at 469

(wire fraud jury instruction was erroneous insofar as it “could be understood as 

permitting the jury to find [the defendant] guilty if it found no more than that his 

scheme was one to deceive the bank but not to ‘deprive’ the bank of anything of 
Page 8 of 8

value”) (emphasis in original). Thus, insofar as Miller is read as the majority does, 

it conflicts with Shaw, under which “wire fraud requires the intent to deceive and

cheat—in other words, to deprive the victim of money or property by means of 

deception.” Miller, 953 F.3d at 1103 (emphasis in original).

* * *

For the reasons above, I concur in part and respectfully dissent in part.