United States of America v. KENNETH PAUL FERREYRO, Esquire, AKA K. Ferreyro, AKA Kenneth P. Ferreyro

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH PAUL FERREYRO, Esquire,
AKA K. Ferreyro, AKA Kenneth P.
Ferreyro,
Defendant-Appellant.
No. 19-50325
D.C. No.
2:18-cr-00865-JFW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted November 16, 2021**
Pasadena, California
Before: BYBEE and BENNETT, Circuit Judges, and BATAILLON,*** District
Judge.
Kenneth Ferreyro appeals from his jury convictions for four counts of wire
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
FILED
NOV 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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fraud in violation of 18 U.S.C. § 1343 and four counts of making a fraudulent
claim to the Internal Revenue Service in violation of 18 U.S.C. § 287. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
Ferreyro challenges his convictions based on three alleged instructional
errors: (1) the jury instruction on the intent element of wire fraud was erroneous, as
it defined intent to defraud as “intent to deceive or cheat” rather than “intent to
deceive and cheat”; (2) the district court failed to sua sponte instruct the jury on
how to assess law enforcement credibility; and (3) the district court failed to sua
sponte instruct the jury on how to assess expert and dual role testimony.
As Ferreyro correctly concedes, his first two challenges are subject to plain
error review. This means that Ferreyro must show that “there was (1) an error that
(2) was clear or obvious and not subject to reasonable dispute that (3) affected [his]
substantial rights by affecting the outcome of the proceedings and (4) seriously
affected the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Liew, 856 F.3d 585, 596 (9th Cir. 2017).
As to Ferreyro’s first challenge, the district court clearly erred by giving the
disjunctive formulation of the intent to defraud instruction. See United States v.
Miller, 953 F.3d 1095, 1103 (9th Cir. 2020) (holding that wire fraud under § 1343
“requires the intent to deceive and cheat”); Henderson v. United States, 568 U.S.
266, 279 (2013) (holding that, under plain error review, an error is clear or obvious

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so long as it is plain at the time of appellate review). But Ferreyro cannot show
that the error affected the outcome of the trial. The evidence that Ferreyro
intended to cheat his victims was overwhelming. Six victims testified that
Ferreyro had lied to them about being an attorney to get their money, and their
testimony was corroborated by documents such as texts, emails, and checks.
Ferreyro ignores this evidence and argues that the intent to cheat can be inferred
only from the four charged wire communications. But the government can prove
intent to defraud based on circumstantial evidence, including the fraudulent
scheme itself. See United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (per
curiam). The government did so here.
Ferreyro’s second challenge is that the district court plainly erred by failing
to sua sponte instruct the jury that law enforcement testimony is entitled to only the
same weight as other witness testimony. But, even assuming error, Ferreyro cites
no authority to support that such error was obvious. See Liew, 856 F.3d at 599
(finding no plain error based on the lack of “any clear or controlling authority”).
Ferreyro’s final challenge is that the district court erred by failing to sua
sponte instruct the jury on how it should assess expert and dual role testimony. We
decline to address this argument because Ferreyro waived it. “Forfeited rights are
reviewable for plain error, while waived rights are not,” and a defendant waives an
argument if he both invites an error and intentionally relinquishes or abandons a

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known right. United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc).
Ferreyro, through his attorney, invited the error by agreeing to proposed jury
instructions that omitted expert and dual role testimony instructions. And Ferreyro
was aware of his right to request the omitted instructions, as the government and
defense counsel discussed whether they were necessary.1 Thus, Ferreyro waived
his third challenge.2
AFFIRMED.
1 Ferreyro argues that waiver is inapplicable because the witnesses’ trial
testimony materially differed from what the government had represented pretrial.
But the government’s pretrial disclosures were in fact consistent with the
witnesses’ trial testimony.
2 Ferreyro’s argument would fail even if not waived, as he has not shown the
prejudice necessary to establish plain error. Even if we were to assume that the
jury would have given less weight to the witnesses’ testimonies had the
instructions been given (as Ferreyro contends), Ferreyro does not explain how that
would have changed the outcome. As the defense gave the jury no reason to doubt
the credibility of the witnesses or the accuracy of their unchallenged testimony, the
outcome would have likely been the same.

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