The Honorable Ralph R. Beistline, Chief United States District Judge *

for the District of Alaska, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLENA STARGELL,

Defendant-Appellant.

No. 11-50392

D.C. No.

5:09-cr-00005-

TJH-1

OPINION

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, Senior District Judge, Presiding

Argued and Submitted

March 7, 2013—Pasadena, California

Filed August 2, 2013

Before: Sidney R. Thomas, Andrew D. Hurwitz, Circuit

Judges, and Ralph R. Beistline, Chief District Judge.*

Opinion by Judge Beistline
2 UNITED STATES V. STARGELL

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Criminal Law

The panel affirmed a defendant’s convictions and

sentence for fraud by wire affecting a financial institution,

aiding and assisting in the preparation of a false return, fraud

by wire, and aggravated identity theft, arising out of the

defendant’s work as a tax preparer.

The panel held that new or increased risk of loss is

sufficient to establish that wire fraud “affects” a financial

institution within the meaning of 18 U.S.C. § 1343, and that

there was sufficient evidence for a rational jury to conclude

that the defendant’s fraudulent returns exposed the banks to

an increased risk of loss.

Because the wire fraud that was the predicate to the

aggravated identity theft did not occur until after 18 U.S.C.

§ 1028A’s enactment date, the panel rejected the defendant’s

contention that the jury may have convicted the defendant

based solely on pre-enactment conduct.

The panel rejected the defendant’s contention that

government and the district court infringed on the core of her

defense counsel’s role, in violation of the defendant’s Sixth

Amendment rights, by allowing the defendant’s former

attorney to testify at sentencing regarding the loss and

restitution calculations, where the former attorney was called

by the defendant’s new attorney. Because the former
UNITED STATES V. STARGELL 3

attorney’s testimony did not contain privileged

communications, the panel rejected the defendant’s

contention that admission of the testimony violated the

attorney-client privilege.

The panel held that the district court did not clearly err in

calculating the loss and restitution amounts.

COUNSEL

Marisa L. D. Conroy (argued), Encinitas, California, for

Defendant-Appellant.

André Birotte, Jr., United States Attorney; Antoine F.

Raphael, Assistant United States Attorney, Joseph R.

Widman, Assistant United States Attorney, Ryan White

(argued), Assistant United States Attorney, United States

Attorneys’ Office, Riverside, California, for PlaintiffAppellee.

OPINION

BEISTLINE, Chief District Judge:

Willena Stargell appeals her convictions of twelve

felonies arising out of her work as a tax preparer for various

clients.

The superseding indictment charged fraud by wire

affecting a financial institution (Counts 1 to 6); aiding and

assisting in the preparation of a false return (Counts 7 to 12);

fraud by wire (Counts 13 to 15); and aggravated identity theft
4 UNITED STATES V. STARGELL

(Counts 16 to 18). The district court dismissed Counts 6, 12,

and 18 on the government’s motion. After the district court

granted her motion for acquittal on Counts 3, 9, and 15,

Stargell was convicted on the remaining charges. She claims

that the district court erred by: (1) failing to grant her motion

for judgment of acquittal as to Counts 1, 2, 4, and 5 of the

superseding indictment despite the government’s failure to

prove that the underlying conduct affected a financial

institution; (2) permitting convictions on Counts 16 and 17

without excluding the possibility that they were based on

conduct that preceded the enactment of 18 U.S.C. § 1028A;

(3) allowing Stargell’s former attorney to testify at the

sentencing hearing; and (4) improperly calculating loss and

restitution amounts.

We have jurisdiction under 28 U.S.C. § 1291, and we

affirm the convictions and sentences.

I

A

After completing a course on tax preparation and

receiving state certification, Stargell began preparing taxes

for Liberty Tax Service (“LTS”) in Moreno Valley,

California. LTS terminated Stargell’s employment in 2003,

and Stargell began her own tax preparation business, called

Liberty Bell Tax Service (“LBTS”).

The evidence at trial established that while operating

LBTS, Stargell prepared federal income tax returns

containing false statements and engaged in schemes to obtain

refund anticipation loans(“RAL”) from banks based on these

fraudulent returns. In some instances, the IRS detected the
UNITED STATES V. STARGELL 5

fraud and declined to issue a tax refund, resulting in a loss to

the banks that made the RALs. The government also proved

that Stargell engaged in identity theft by using the names and

social security numbers of former clients or other individuals,

without their knowledge or consent, to file tax returns and to

request RALs.

B

Before sentencing, the district court held two evidentiary

hearings to determine loss and restitution. At the latter

hearing, Kay Otani, former counsel for Stargell, testified as

a witness. Stargell’s current counsel, the district court, and

the government inquired as to Otani’s method of calculating

loss and restitution, what documents he sought to obtain from

the government, how those documents would have assisted or

disadvantaged him, and what was ultimately provided to him.

At the conclusion of the hearing, the district court found

an offense level of twenty-two, a criminal history category of

I, and an advisory guideline range of forty-one to fifty-one

months. The district court imposed a $1200.00 special

assessment, restitution in the amount of $362,796.07, and

incarceration for forty-two months. This appeal followed.

II

A

Stargell contends that the district court erred in failing to

grant her motion for acquittal as to Counts 1, 2, 4, and 5

because the government failed to prove that such counts

“affected a financial institution” as required by 18 U.S.C.

§ 1343. Stargell’s argument is unpersuasive.
6 UNITED STATES V. STARGELL

 IRS maintains tax records and information in its Integrated Data 1

Retrieval System (“IDRS”). The IDRS contains information regarding

filed tax returns and information provided by third parties, including

employers and financial institutions.

“Where a defendant moves for acquittal at the close of the

government’s evidence, we review de novo whether sufficient

evidence exists to support a guilty verdict.” United States v.

Stewart, 420 F.3d 1007, 1014–15 (9th Cir. 2005) (citing

United States v. Carranza, 289 F.3d 634, 641 (9th Cir.

2002)). Our review of the sufficiency of the evidence

supporting a criminal conviction is to determine “whether the

record evidence could reasonably support a finding of guilt

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 318 (1979). We do not ask whether we “believe[] that

the evidence at the trial established guilt beyond a reasonable

doubt.” Id. at 319 (quoting Woodby v. INS, 385 U.S. 276, 282

(1966)). “Instead, the relevant question is whether, after

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.”

Id.

Special Agent Juan Marquez of the IRS’s Criminal

Investigations Division (“IRS-CID”) testified as a summary

witness pursuant to Rule 1006 of the Federal Rules of

Evidence. Agent Marquez presented a summary chart based

upon his review of 143 tax returns, all of which either listed 1

Stargell as the tax preparer or were connected to her

company, LBTS. The summary chart demonstrated that each

of the 143 tax returns contained either false wage or false

withholding figures, and that the vast majority contained both

false wage and false withholding figures. Every return listed

in the summary chart sought a refund, and the total refunds
UNITED STATES V. STARGELL 7

sought amounted to $598,657.00. The IRS refunded

$276,331.74 in connection with these returns before it

stopped the remaining claimed refunds.

Agent Marquez also testified that banks funded a RAL for

each of the tax returns listed in the summary chart. When a

bank issued a RAL and the IRS later stopped the refund for

the related return, the bank was not able to recoup the value

of the RAL and suffered a financial loss.

To the government, the lost refund money was the main

“effect” that Stargell’s actions had on the banks. Yet, the

banks only lost money with respect to two of the four counts

of fraud charged in the indictment: Count 1 ($4,995.22) and

Count 4 ($6,013.00). The summary chart clearly shows that

the banks did not lose any refund money on the other two tax

returns in question here. Nevertheless, the government

argues that because RALs based on fraudulent returns are

riskier than RALs based on non-fraudulent returns, Stargell’s

fraud scheme “affected” the banks by exposing them to an

increased risk of loss. The banks were affected by Stargell’s

fraud scheme, the government argues, regardless of whether

there was an actual financial loss.

We agree. Our sister circuits have defined the term

“affects” within the meaning of a similar statute,18 U.S.C.

§ 3293(2), to include new or increased risk of loss to financial

institutions. See United States v. Mullins, 613 F.3d 1273,

1278–79 (10th Cir. 2010) (holding that a new or increased

risk of loss is sufficient to establish that wire fraud affects a

financial institution); United States v. Serpico, 320 F.3d 691,

694 (7th Cir. 2003) (holding that fraud affects a bank if the

bank is exposed to an increased risk of loss, even if the bank

never suffers an actual loss). Although § 3293(2) and § 1343
8 UNITED STATES V. STARGELL

are separate provisions—the former extends the statute of

limitations to ten years for offenses that affect a financial

institution, while the latter defines the offense of wire

fraud—we see no reason why they should hold different

meanings with respect to the term “affects.” Accordingly, we

hold that new or increased risk of loss is sufficient to

establish that wire fraud “affects” a financial institution

within the meaning of 18 U.S.C. § 1343.

Here, there was sufficient evidence for a rational jury to

conclude that Stargell’s fraudulent returns exposed the banks

to an increased risk of loss. The senior risk analyst for one of

the banks testified that 79.9% of the RALs issued in

connection with Stargell’s fraud scheme resulted in a loss to

the bank, compared with a general loss rate of less than 1%

for non-fraudulent RALs. Therefore, there was sufficient

evidence for a rational jury to conclude that Stargell’s fraud

scheme affected the banks within the meaning of 18 U.S.C.

§ 1343, regardless of whether the banks ultimately suffered

any actual loss. The district court did not err in denying

Stargell’s motion to acquit as to Counts 1, 2, 4, and 5.

B

Stargell claims for the first time on appeal that because

the government’s case regarding Counts 13 and 14 (wire

fraud, 18 U.S.C. § 1343)—the predicate offenses for Counts

16 and 17 (aggravated identity theft, 18 U.S.C. § 1028A)—

focused significantly on conduct that pre-dated the enactment

of § 1028A on July 15, 2004, the jury may have convicted

Stargell based solely on pre-enactment conduct. However,

because the wire fraud did not occur until January 15 and 18,

2005, the predicate offenses for the aggravated identity theft

transpired well after § 1028A’s enactment date.
UNITED STATES V. STARGELL 9

 For purposes of 18 U.S.C. § 1028A, the term “any felony violation” is 2

specifically defined as one of the felonies enumerated in § 1028A(c).

Counts 13 and 14 fall under § 1028A(c)(5).

Under 18 U.S.C. § 1028A(a)(1), “[w]hoever, during and

in relation to any felony violation . . . , knowingly transfers,

possesses, or uses, without lawful authority, a means of

identification of another person shall, in addition to the

punishment provided for such felony, be sentenced to a term

of imprisonment of 2 years.” (emphasis added).2

Additionally, under 18 U.S.C. § 1343, “[w]hoever, having

devised . . . any scheme for obtaining money or property by

means of false or fraudulent pretenses, representations, or

promises, transmits or causes to be transmitted by means of

wire, radio, or television communication in interstate or

foreign commerce, any writings . . . for the purpose of

executing such scheme or artifice, shall be fined under this

title or imprisoned not more than 20 years, or both.”

(emphasis added).

In proving its case on wire fraud and on the related

identity theft, the government referenced Stargell’s ongoing

wire fraud scheme starting in February 2004 and ending on

approximately January 27, 2005. Although the government

demonstrated that the scheme partially took place prior to the

enactment date of § 1028A, the superseding indictment

clearly shows that the tax returns in question were not filed,

and thus were not transmitted, until January 2005.

Transmission is a required element of wire fraud under

§ 1343. Consequently, the wire fraud did not occur until the

returns were filed in January 2005, a full six months after

§ 1028A was enacted. The predicate offenses for Counts 16

and 17, therefore, happened after § 1028A was enacted.

Accordingly, the jury was not wrong in convicting Stargell of
10 UNITED STATES V. STARGELL

aggravated identity theft while relying on the predicate wire

fraud offenses.

C

Stargell argues, again for the first time on appeal, that the

government and the district court infringed on the core of her

defense counsel’srole by allowing Stargell’s former attorney,

Otani, to testify at sentencing regarding the loss and

restitution calculations. Stargell also contends that since she

did not expressly consent to Otani giving testimony, the

attorney-client privilege was violated. We disagree.

1

“Government violates the right to effective assistance

when it interferes in certain ways with the ability of counsel

to make independent decisions about how to conduct the

defense.” Perry v. Leeke, 488 U.S. 272, 279–80 (1989)

(internal quotation marks and citation omitted). There was no

violation here because it was Peter Swarth, Stargell’s new

defense attorney, who called Stargell’s former attorney to

testify at the sentencing hearing. Swarth examined Otani

concerning the discovery of audit files and other documents

requested from the IRS. The transcript is clear that Swarth

acted independently in calling Otani to testify in the second

sentencing hearing and that there was no interference or

restriction of any kind with Swarth’s presentation of the

defense. Because there was no interference, Stargell’s Sixth

Amendment rights were not violated.
UNITED STATES V. STARGELL 11

2

Stargell additionally contends that the admission of

Otani’s testimony violated the attorney-client privilege.

Because Otani’s testimony did not contain privileged

communications, the argument fails.

Otani’s testimony did not include protected attorneyclient communications of any kind. The majority of Otani’s

testimony dealt with audit documents requested by Otani

from the IRS through discovery while Otani was Stargell’s

defense attorney. In the entirety of Otani’s testimony,

nothing he said or referenced came from Stargell. Therefore,

the attorney-client privilege was not implicated. See United

States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009)

(explaining the attorney-client privilege only covers

communications made in confidence by the client); id. (“The

fact that a person is a lawyer does not make all

communications with that person privileged.”) (internal

quotation marks and citation omitted).

D

Stargell alleges that the district court committed three

errors in computing the amounts of loss and restitution in this

case. First, she argues that the district court never actually

made a finding regarding the amount of loss. Second, she

argues that even if the district court made a loss finding, its

finding was unsupported by the evidence because the amount

should not have included qualified refunds. And third, she

argues that the restitution amount should not have included

refunds the taxpayers were legally entitled to claim. We find

that the district court did not clearly err in calculating the loss

and restitution amounts.
12 UNITED STATES V. STARGELL

“A calculation of the amount of loss is a factual finding

reviewed for clear error.” United States v. Garro, 517 F.3d

1163, 1167 (9th Cir. 2008). Under the clearly-erroneous

standard, a reviewing court will not reverse a lower court

merely because the reviewing court “‘would have decided the

case differently.’” Easley v. Cromartie, 532 U.S. 234, 242

(2001) (quoting Anderson v. Bessemer City, 470 U.S. 564,

573 (1985)). “[A] reviewing court must ask whether, ‘on the

entire evidence,’ it is ‘left with the definite and firm

conviction that a mistake has been committed.’” Id. (quoting

United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948)). In short, the clearly erroneous standard is

“significantly deferential.” N. Queen Inc. v. Kinnear,

298 F.3d 1090, 1095 (9th Cir. 2002).

1

When determining a loss amount for sentencing purposes,

a district court must “provide reasoning to explain its

determination of [such] loss.” Yeung, 672 F.3d at 604–05.

“Although the district court’s findings . . . must be ‘express,’

they need only state the court’s resolution of the disputed

issues.” United States v. Karterman, 60 F.3d 576, 583 (9th

Cir. 1995). If a district court does not provide such a

resolution, “we must remand for the district court to

recalculate and provide its reasoning for th[e] award.” Yeung,

672 F.3d at 604–05.

Stargell argues that the district court should have made an

explicit finding regarding the loss amount or, at a minimum,

explicitly adopted the government’s loss position. But the

district court did adopt the government’s suggested loss

amount. The district court stated, “It just appears to me that

as had been suggested by you [the government] previously
UNITED STATES V. STARGELL 13

that using either standard that you’ve been able to meet your

burden. And it very well may be that under this set of

circumstances, that clear and convincing would be proper.

And I’m satisfied with it.” (emphasis added). The district

court adequately resolved the loss amount dispute in favor of

the government by holding that the government had

established the loss amount by clear and convincing evidence.

In total, the banks lost $107,931.96 in connection with the

143 fraudulent tax returns listed in the summary chart.

2

Stargell further alleges that the district court mistakenly

included in the loss amount the refunds to which the affected

taxpayers were entitled. Stargell’s argument is unpersuasive.

Under the Sentencing Guidelines, “[i]f the offense

involved tax evasion or a fraudulent or false return, statement,

or other document, the tax loss is the total amount of loss that

was the object of the offense (i.e., the loss that would have

resulted had the offense been successfully completed).”

U.S.S.G. § 2T1.1(c)(1) (emphasis added). Here, the

government recommended that the tax-loss amount equal the

entire loss that would have resulted had Stargell’s schemes

been successfully completed—in other words, the total refund

amount claimed on all of the fraudulent returns. The district

court adopted the government’s total loss figure.

Concerning the tax-loss amount, a district court should

“make a reasonable estimate based on the available facts.”

U.S.S.G. § 2T1.1 cmt. n.1. Moreover, if higher than the

actual loss amount, the intended loss amount should be used.

United States v. Riley, 143 F.3d 1289, 1291–92 (9th Cir.

1998). It is not the government’s or the district court’s
14 UNITED STATES V. STARGELL

 Absent evidence to the contrary, it is also a reasonable presumption 3

that each of the involved taxpayers would have had to file a nonfraudulent return in order to obtain any refund to which he or she would

responsibility to establish that defendant’s filed returns were

entitled to refunds if no entitled-refund information was

offered by the defendant. See United States v. Bishop,

291 F.3d 1100, 1116 (9th Cir. 2002) (“It is not the

government’s or the court’s responsibility to establish the

defendants’ itemized deductions, if no itemized deduction

information was offered by the defendants.”).

Stargell failed to provide any substantial evidence to

support her contention that she gave, or intended to give, the

involved taxpayers the refunds to which they were entitled.

The district court’s conclusion that Stargell intended to keep

the total amount of refunds claimed in the fraudulent returns

was reasonable based on the evidence in the record.

Likewise, using that amount as the “total tax loss” was also

reasonable.

At sentencing, the onus was on Stargell to establish a

lower tax-loss amount based on the entitled refund, but she

did not. See Bishop, 291 F.3d at 1116. Even at the appellate

level, Stargell has neither pointed to any evidence

establishing that the involved taxpayers were entitled to a

refund nor provided an entitled-refund amount by which the

tax-loss figure should be decreased.

Based on the record and in light of the dearth of evidence

to the contrary, the district court’s acceptance of the

government’s loss figure—the total refund amount claimed

on all of the fraudulent returns—was a “reasonable estimate

based on the available facts.” U.S.S.G. § 2T1.1 cmt. n.1.3
UNITED STATES V. STARGELL 15

have been entitled. Carrying out Stargell’s fraud schemes to their

completion, therefore, would have required the IRS to pay the total

amount of refunds claimed by Stargell in her 143 fraudulent returns as

well as any potential refunds for the non-fraudulent returns filed by the

persons named in Stargell’s returns, conceivably requiring the IRS to pay

a refund twice.

3

Stargell also argues that the restitution amount determined

by the district court, like the tax-loss amount, included

refunds that the affected taxpayers were potentially entitled

to claim. A restitution amount can be calculated from “losses

proximately resulting from [a defendant’s] criminal conduct.”

Yeung, 672 F.3d at 606. Therefore, it was not error for the

district court to base Stargell’s restitution amount on the

actual losses minus the amount of paid-in withholding.

III

For all the reasons above, we affirm the judgment of the

district court.

AFFIRMED.