NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SHAREE MARTELL HALL, AKA Sharee Martel Hall, AKA Sharee Martels Hall, Defendant - Appellant. No. 12-10271 D.C. No. 3:11-cr-00113-RS-1
MEMORANDUM *

Appeal fromthe United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding Argued and Subm itted October 9, 2013 San Francisco, California Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges. Sharee Hall (Hall) appeals her conviction on one count of wire fraud, 18 U.S.C. § 1343, and one count of m oney laundering, 18 U.S.C. § 1957. We have jurisdiction under 28 U.S.C. § 1291 and we affirm

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# FILED
OCT 16 2013 M OLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.Hall advances four challenges to her convictions: (1) that there was

insufficient evidence that the funds involved in her m oney laundering conviction were the “proceeds” of specified crim inal activity; (2) that there was insufficient evidence to convict her of wire fraud because the governm ent only presented circum stantial evidence that she was directing the transfers; (3) that the district court constructively am ended the Indictm e nt by instructing the jury on vicarious liability; and finally (4) that the district court erred in its response to the jury’s question regarding the scope of vicarious liability. We deal with each challenge in turn. I. The Money Laundering Conviction Hall argues that she could not have laundered the “proceeds” of the wire fraud because she was acquitted of the two charged wire fraud counts that would have m a de funds available at the tim e she purchased the $102,500 cashier’s check that underlies the m oney laundering count. In order to obtain a conviction under § 1957, however, the governm ent need only establish that: (1) the defendant knowingly engaged in a m onetary transaction; (2) she knew the transaction involved crim inal property; (3) the property’s value exceeded $10,000; and (4) the property was derived from a specified unlawful activity. See United States v. Messer , 197 F.3d 330, 341 (9th Cir. 1999). There was am ple evidence that Hallknew that the funds involved in her purchase of the $102,500 cashier’s check were

the proceeds of illegal activity. In fact, the jury concluded that Hall had sufficient knowledge of the wire fraud schem e to convict her of wire fraud based on transactions that occurred on January 20, 2009, the day before Hall purchased the cashier’s check. There is also am ple evidence to show that the funds Hall used to purchase the $102,500 cashier’s check were in fact the result of wire fraud. On these facts and others, a rational trier of fact could find that Hall knowingly engaged in a m onetary transaction involving the proceeds of illegal activity. Hall also argues that she cannot be convicted of m oney laundering because the governm ent charged that “[i] t was further a part of the schem e to defraud that HALL used the m oney fraudulently transferred from [ONE Foundation’s account] for her own purposes, including purchasing m ore than $100,000 worth of cashiers checks” as an elem ent of the indicted wire fraud counts. She contends that her withdrawal of funds is thus an essential elem ent of the wire fraud schem e and consequently cannot constitute a financial transaction involving the proceeds of independent illegal activity. Where a schem e is ongoing, funds constitute “proceeds” of prior separate activity where they are used outside of the schem e that generated the funds or are not essential to carrying out the schem e’s objectives. Compare United States v. Santos , 553 U.S. 507, 516-517 (2008) (holding that payouts to lottery winnerswere not proceeds because they were essential to continuing the schem e), w ith

United States v. Bush , 626 F.3d 527, 538 (9th Cir. 2010) (upholding m oney laundering convictions because they were part of a Ponzi schem e but were not “central to carrying out the schem e’s objectives”). In this case Hall’s purchase of cashier’s checks was not a central com ponent of the wire fraud schem e. The fact that the Indictm ent charged Hall with “us[ing] the m oney for her own purposes, including purchasing m ore than $100,000 worth of cashiers checks,” does not transformthat act into an essential part of the schem e. II. The Wire Fraud Conviction Hall claim s that the jury lacked sufficient evidence to convict her of wire fraud. She argues that “there was no evidence adduced at trial that HALL herself transm itted or caused to be transm itted the [transactions] ” because Hall gave her account inform ation to Candice Ward. Circum stantial evidence that a defendant participated in a fraudulent schem e can support a conviction for wire fraud. See United States v. Mullins , 992 F.2d 1472, 1475-1477 (9th Cir. 1993) (affirm ing a wire fraud conviction where a trio of travel agents had m anipulated an airline reservation systemdespite the fact that other em ployees could have accessed the accounts because of the circum stantial evidence to supporting conviction). Here, the governm ent introduced significant circum stantial evidence that suggested that Hall was either directing or aware ofthe fraudulent transactions. For example, Paypal sent an em ail to Hall’s personal

em ail address reflecting each of the transfers

. On these facts and others, a rational trier of fact could find that Hall com m itted wire fraud. III. Constructive Amendment of the Indictment Hall alleges that the vicarious liability instruction given to the jury am ounts to a constructive am endm ent of the Indictm ent because the Indictm ent does not

m ention co-conspirators. The plain language of the Indictm ent does not lim it the “schem e to defraud” to a single defendant. 1 Further, “Lothian and its progeny establish the principle . . . that vicarious liability for substantive counts of m ail or wire fraud does not require that the indictm ent charge conspiracy.” United States v. Stapleton , 293 F.3d 1111, 1119 (9th Cir. 2002) (alterations om itted). Accordingly, the vicarious liability instruction did not present “a com plex of facts [at trial] distinctly different from those set forth in the charging instrum ent,” or a situation in which “the crim e charged [in the indictm ent] was substantially altered at trial, so that it was im possible to know whether the grand jury would have indicted for the crim e actually proved.” United States v. Von Stoll , 726 F.2d 584, 586 (9th Cir. 1984). IV. Response to Jury Question Tw o

1 The Indictm ent charges Hall with “engag[ing] in a schem e to defraud ONE Foundation and HSBC Bank USA by m isappropriating m oney that belonged to ONE Foundation for her own benefit.”The District Court did not com m it plain error by responding to Jury

Question Two by referring the Jury to the previously issued Jury Instructions. United States v. Preston, 706 F.3d 1106, 1122 (9th Cir. 2013). The Jury Question was unclear. Accordingly, either a “yes” or a “no” response would have presented an equal if not greater chance of being “m isleading, unresponsive, or legally incorrect.” United States v. Anekwu , 695 F.3d 986, 986 (9th Cir. 2012). AFFIRMED

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