United States of America v. Loren Balthazor

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LOREN BALTHAZOR,
Defendant - Appellant.
No. 10-50073
D.C. No. 8:07-cr-00273-DOC-3
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted March 9, 2012**
Pasadena, California
Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.
Loren Balthazor (“Balthazor”) was convicted of one count of conspiracy to
commit wire fraud in violation of 18 U.S.C. § 371, and seventeen counts of wire
fraud and aiding and abetting wire fraud in violation of 18 U.S.C. §§ 1343 and 2.
FILED
AUG 10 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
The district court denied Balthazor’s motion for a judgment of acquittal pursuant to
Federal Rule of Criminal Procedure 29 made at the close of the government’s case
in chief. On appeal, Balthazor claims that the evidence was insufficient to convict
him, and thus that the district court erred by denying his motion for acquittal. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review challenges to the sufficiency of the evidence de novo. United
States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008). There is sufficient evidence
to support a conviction if, “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.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). We generally review a district court’s denial of a Rule 29 motion for plain
error or to prevent a miscarriage of justice where, as here, the motion is not
renewed at the end of the trial. United States v. Alvarez-Valenzuela, 231 F.3d
1198, 1200-01 (9th Cir. 2000). Because we find sufficient evidence supports
Balthazor’s conviction under either plain error or de novo review, our analysis is
not affected by an application of one standard versus the other. See id.
Sufficient evidence supports Balthazor’s conviction for conspiracy to
commit wire fraud. See Sullivan, 522 F.3d at 976. “The agreement need not be
explicit; it is sufficient if the conspirators knew or had reason to know of the scope

-- 2 of 4 --

3
of the conspiracy and that their own benefits depended on the success of the
venture.” Id. (citation and internal quotation marks omitted). The specific intent to
defraud can also be established by circumstantial evidence and may be inferred
from misrepresentations made by the defendant. Id. at 974. Evidence at trial
established that Balthazor acted as a “facilitator” for the fraudulent high yield
investment program, was instrumental in introducing the investment program to
the undercover agents, and made numerous misrepresentations in an effort to
persuade the undercover agents to invest in the fraudulent investment program.
From this evidence, a reasonable jury could find beyond a reasonable doubt that
Balthazor agreed to join the conspiracy and possessed the specific intent to defraud
others.
Sufficient evidence also supports Balthazor’s conviction for wire fraud and
aiding and abetting wire fraud. The government presented evidence that Balthazor
made materially false representations to convince potential investors to invest
millions of dollars, boasted that the potential investors could make outrageous
returns in a matter of weeks with no risk to principal, and told potential investors
that warnings about the fraudulent nature of high yield investment programs were
made up by the government to keep the investment programs secret. See United
States v. Green, 592 F.3d 1057, 1064 (9th Cir. 2010); United States v. Gaskins, 849

-- 3 of 4 --

4
F.2d 454, 459 (9th Cir. 1988).
Accordingly, there was sufficient evidence for a rational jury to convict
Balthazor.
AFFIRMED.

-- 4 of 4 --