United States of America v. Shontovia D. Debose

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHONTOVIA D. DEBOSE,
Defendant - Appellant.
No. 12-50102
D.C. No. 2:09-cr-01005-TJH-27
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ME ARLENE SETTLE, AKA Me Arlene
Leavasa, AKA Me Arlene Logovii,
Defendant - Appellant.
No. 12-50191
D.C. No. 2:09-cr-01005-TJH-44
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 12-50231
D.C. No. 2:09-cr-01005-TJH-2
FILED
DEC 31 2014
MOLLY 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.

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v.
NICHOLE MICHELLE MERZI, AKA
Nichole Mahmoud Merzi,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY DONNEL FULLER,
Defendant - Appellant.
No. 12-50323
D.C. No. 2:09-cr-01005-VBF-30
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Senior District Judge, Presiding
Argued and Submitted December 10, 2014
Pasadena, California
Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.
In this consolidated criminal appeal, four co-defendants (Merzi, Debose, Settle,
and Fuller) appeal their convictions for their participation in a bank and wire fraud
conspiracy. The conspiracy involved unindicted co-conspirators in Egypt who
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fraudulently transferred money from victims to American accounts set up by the
defendants, among others.
Merzi claims her participation in the conspiracy was coerced by her then-
boyfriend Kenneth Lucas, the ringleader of the conspiracy. Merzi also argues that the
district court improperly precluded evidence of Lucas’s domestic violence in support
of her duress defense. The district court did not err when it precluded Merzi from
presenting an affirmative defense of duress because Merzi did not make a prima facie
showing of duress. United States v. Ibarra-Pino, 657 F.3d 1000, 1005 (9th Cir. 2011).
The district court also did not abuse its discretion when it denied Merzi’s motion for
continuance to substitute counsel because the district court’s ruling was not illogical,
implausible, or without support in the record. United States v. Hinkson, 585 F.3d
1247, 1261–63 (9th Cir. 2009) (en banc) (abuse of discretion test); United States v.
Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985) (factors a court considers for motions for
continuances). Therefore as to Merzi, the district court’s judgment is AFFIRMED.
Debose, Fuller, and Settle each claim that there was insufficient evidence to
support their convictions.1 There indeed was insufficient evidence to convict Debose,
Fuller, and Settle of the conspiracy count because the government did not prove
1 All three fraudulently created bank accounts. Debose was convicted only
of the conspiracy to commit bank and wire fraud. Fuller and Settle, however, were
convicted of the conspiracy and of substantive bank fraud.
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beyond a reasonable doubt that any of the three “‘embraced the common purpose of
the conspiracy.’” United States v. Umagat, 998 F.2d 770, 773–74 (9th Cir. 1993)
(quoting United States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984)). We therefore
VACATE the conspiracy convictions for Debose, Fuller, and Settle. There was,
however, sufficient evidence to convict Fuller and Settle of substantive bank fraud,
and their convictions on those counts are therefore AFFIRMED. We REMAND to
the district court with instructions to vacate Debose’s sentence and to resentence
Fuller and Settle.
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