Jeffrey Spanier 2nd Appeal USA Brief 17-50128 Documents

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Case: 17-50128, 12/11/2017, ID: 10686665, DktEntry: 29-1, Page 1 of 70
No. 17-50128
United States Court of Appeals

FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE
v.
JEFFREY R. SPANIER,
DEFENDANT-APPELLANT
On Appeal From the United States District Court

for the Southern District of California
16CR01545-BEN
ANSWERING BRIEF FOR THE UNITED STATES
ADAM L. BRAVERMAN
United States Attorney
HELEN H. HONG
Assistant U.S. Attorney
Chief, Appellate Section
Criminal Division
NICOLE RIES FOX
880 Front St., Rm. 6293
San Diego, CA 92101
(619) 546-8783
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TABLE OF CONTENTS
Page
Jurisdiction and Bail Status 1

Questions Presented 1
Statement 3
1. Spanier’s Fraud Conspiracy 3
2. 2013 Trials, Appeal, Dismissal Without Prejudice 7
3. July 2016 Indictment 8
4. Superseding Indictment, Reinstatement Counts 2-18 10
5. Trial, Verdict, Post-Trial Motions, Sentencing 11
Summary of Argument 12
Argument 14
A. The District Court Did Not Abuse Its Discretion In
Ordering Dismissal of the 2013 Indictment Without
Prejudice 14
1. Standard of Review 14
2. Judge Miller Did Not Abuse His Discretion 14
B. All Counts of Conviction Were Timely 20
2. The July 2016 Indictment Was Returned Within
the 60-Day Grace Period in 18 U.S.C. §§ 3288 and
3289 21
3. The Conspiracy Count Is Timely Independent of the
Tolling Statutes 26
4. The Securities Fraud Count Is Independently
Timely 33
C. The District Court Correctly Declined to Instruct the
Jury on a Pure Omissions Theory of Liability 39
2. As This Court Previously Held, the District Court
Properly Instructed the Jury on the Elements of Mail,
Wire, and Securities Fraud 39
a. Spanier’s First Appeal 39
b. The District Court Properly Relied on this Court’s
Opinion 42
i
(3 of 71)
c. United States v. Shields Does Not Warrant Recon-

sideration of this Court’s Prior Ruling 44
3. Any Error Was Harmless 49
D. The District Court Properly Refused to Give a
Withdrawal or a Multiple-Conspiracies Instruction 51
2. No Withdrawal Instruction Was Required 51
3. No Multiple-Conspiracies Instruction Was Required 55
E. The District Court Did Not Err in Prohibiting the
Jury from Discussing the Verdict 58
1. Background 58
3. The District Court’s Admonition Was Sound 60
Conclusion 63
Certificate of Compliance
Statement of Related Cases
TABLE OF AUTHORITIES
Cases:
Carroll v. United States, 326 F.2d 72 (9th Cir. 1963) 37, 38

Catlin v. United States, 324 U.S. 229 (1945) 23
Cole Energy Dev. Co. v. Ingersoll-Rand Co.,
8 F.3d 607 (7th Cir. 1993) 43
Eller v. EquiTrust Life Ins. Co.,
778 F.3d 1089 (9th Cir. 2015) 40
Harris v. Sentry Title Co.,
806 F.2d 1278 (5th Cir. 1987) 43
Hawkins v. United States, 543 U.S. 1097 (2005) 32
Musacchio v. United States, 136 S. Ct. 709 (2016) 43
Neder v. United States, 527 U.S. 1 (1999) 50, 58, 60
Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) 61
People of Territory of Guam v. Marquez,
963 F.2d 1311 (9th Cir. 1992) 60
ii
(4 of 71)
United States v. Alvarez-Perez,

629 F.3d 1053 (9th Cir. 2010) 19
United States v. Anguiano,
873 F.2d 1314 (9th Cir. 1989) 56
United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) 62
United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981) 61
United States v. Benny, 786 F.2d 1410 (9th Cir. 1986) 48
United States v. Bentson,
220 F. App’x 643 (9th Cir. 2007) (unpublished) 29
United States v. Berghuis,
No. 14-10527, 2017 WL 3912624
(9th Cir. Sept. 7, 2017) (unpublished) 47
United States v. Brown,
578 F.2d 1280 (9th Cir. 1978) 35, 37, 38
United States v. Cherer, 513 F.3d 1150 (9th Cir. 2008) 39
United States v. Clymer, 25 F.3d (9th Cir. 1984) 17
United States v. Cote, 51 F.3d 178 (9th Cir. 1995) 25
United States v. Finestone,
816 F.2d 583 (11th Cir. 1987) 55
United States v. Friedman, 649 F.2d 199 (3d Cir. 1981) 32
United States v. Haddy,
134 F.3d 542 (3d Cir. 1998) 36, 38
United States v. Jingles, 702 F.3d 494 (9th Cir. 2012) 43
United States v. Job, 871 F.3d at 868 (9th Cir. 2017) 57
United States v. Kellington,
217 F.3d 1084 (9th Cir. 2000) 25
United States v. Lash, 937 F.2d 1077 (6th Cir. 1991) 32
United States v. Laurienti,
611 F.3d 530 (9th Cir. 2010) 40, 47
iii
(5 of 71)
United States v. Leo Sure Chief,

438 F.3d 920 (9th Cir. 2006) 21
United States v. Lewis,
611 F.3d 1172 (9th Cir. 2010) 19, 20
United States v. Liu, 731 F.3d 982 (9th Cir. 2013) 25, 31
United States v. Lloyd, 807 F.3d 1128 (9th Cir. 2015) 47
United States v. Lothian,
976 F.2d 1257 (9th Cir. 1992) 51, 52, 55
United States v. Muckleshoot Indian Tribe,
235 F.3d 429 (9th Cir. 2000) 25
United States v. O’Bryant,
998 F.2d 21 (1st Cir. 1993) 32, 33
United States v. Pacheco, 912 F.2d 297 (9th Cir. 1990) 31
United States v. Pearson, 340 F.3d 459 (7th Cir. 2003) 32
United States v. Perdomo-Espana,
522 F.3d 983 (9th Cir. 2008) 51
United States v. Rutkoske,
506 F.3d 170 (2d Cir. 2007) 28, 29, 30
United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003) 32
United States v. Sears, Roebuck & Co., Inc.,
785 F.2d 777 (9th Cir. 1986) 28, 32
United States v. Sherman,
581 F.2d 1358 (9th Cir. 1978) 60-61
United States v. Shields,
844 F.3d 819 (9th Cir. 2016) passim
United States v. Spanier,
637 F. App’x 998 (9th Cir. 2016) (unpublished) passim
United States v. Stapleton,
293 F.3d 1111 (9th Cir. 2002) 42
United States v. Taylor, 487 U.S. 326 (1988) passim
United States v. U.S. Gypsum Co., 438 U.S. 422 (1978) 54
iv
(6 of 71)
United States v. Waters, 627 F.3d 345 (9th Cir. 2010) 59

United States v. Weiner, 578 F.2d 757 (9th Cir. 1978) 60
United States v. Wilsey,
458 F.2d 11 (9th Cir. 1972) 22, 24
United States v. Woods, 335 F.3d 993 (9th Cir. 2003) 39
Universal Health Services, Inc. v. United States,
136 S. Ct. 1989 (2016) 46
Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) 60
Constitution and Statutes:
First Amendment 61
15 U.S.C. § 77q(a) 35
15 U.S.C. § 78j(b) 34
18 U.S.C. § 3162(a)(2) 8, 14
18 U.S.C. § 3231 1
18 U.S.C. § 3282 26
18 U.S.C. § 3288 passim
18 U.S.C. § 3289 passim
18 U.S.C. § 3301 33
28 U.S.C. § 1291 1
Rules:
Fed. R. App. P. 4(b)(1)(A)(i) 1

Fed. R. Evid. 606(b) 60, 61
Regulations:
17 C.F.R. § 240.10b-5 34, 37, 38
Miscellaneous:
9th Cir. Model Instr. 8.121 47

9th Cir. Model Instr. 8.124 44, 47, 55
v
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No. 17-50128
United States Court of Appeals

FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE
v.
JEFFREY R. SPANIER,
DEFENDANT-APPELLANT
On Appeal From the United States District Court

for the Southern District of California
16CR01545-BEN
JURISDICTION AND BAIL STATUS
The district court had jurisdiction under 18 U.S.C. § 3231, as
Spanier was charged with offenses against the United States.

Excerpts of Record (ER) 2070-81. On May 24, 2017, the court
entered judgment sentencing Spanier to 96 months in custody and
$20,669,379.98 in restitution. ER 110-14. Spanier timely filed his

notice of appeal on April 13, 2017. Fed. R. App. P. 4(b)(1)(A)(i);
ER 123. This Court has jurisdiction under 28 U.SC. § 1291. Spanier
is in custody until March 2024.

QUESTIONS PRESENTED
Spanier has twice been convicted of conspiracy, mail fraud,
wire fraud, and securities fraud as a result of a scheme in which he
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and his co-conspirators defrauded victims of over $100 million
dollars. Spanier was first charged in 2012. After his first trial
resulted in a mistrial, Spanier was convicted on a superseding
indictment (the “2013 Indictment”). On appeal, this Court reversed
the convictions on Speedy Trial Act grounds. The Court remanded
to the district court to determine whether the dismissal of the 2013
Indictment should be with or without prejudice. The district court
dismissed the indictment without prejudice.
Shortly after the district court’s order, the government
obtained a new 19-count indictment (the “July 2016 Indictment”).

Spanier moved to dismiss the mail and wire fraud charges (Counts
2-18) as barred by the five-year statute of limitations. The district
court granted the motion and the government obtained a

superseding indictment alleging the two remaining charges. Before
trial, the district court reconsidered its ruling and reinstated
Counts 2-18 for trial. Spanier was convicted on all counts.
The questions presented are:
1. Did the district court abuse its discretion in dismissing
the 2013 Indictment without prejudice? (Appellant’s Opening Brief

(AOB) Issue No. IV)
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2. Were the 19 counts in the July 2016 Indictment
returned within the applicable statutes of limitations? (AOB Issue
No. II)
3. Did the district court abuse its discretion in declining to
instruct the jury on a “pure omissions” theory of fraud liability?
(AOB Issue No. I)
4. Did the district court abuse its discretion in declining to
give a withdrawal or a multiple-conspiracies jury instruction? (AOB
Issue Nos. II(F) and III)
5. Did the district court err by instructing the jury

members post-trial that they should not discuss the substance of
their deliberations with the attorneys? (AOB Issue No. V)
STATEMENT
1. Spanier’s Fraud Conspiracy
Spanier was indicted for participating in a conspiracy in
which he fraudulently induced borrowers to pledge large amounts

of stock as collateral for cash loans. For almost a decade, Spanier’s
role in the fraud was the same. Through his company Amerifund,
he served as a loan broker, soliciting entrepreneurs or businessmen
who owned publicly traded shares of stock in the companies they
owned or ran. ER 703-04, 1383-85 1550-51, 1607-08, 1749-51, 1900-
03. For various reasons, these executives found themselves in need
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of cash. ER 1008-09, 1464-65, 1904. But they either could not or did
not want to sell their stock outright. Some owned restricted shares,
meaning they were prohibited from selling without reporting the
sale to the SEC. ER 971-72, 1385, 1416-17, 1464-65. Others
understood that, as corporate insiders, stockholders might “think
there is something wrong” if they saw “that the CEO and Chairman
was selling [his] shares.” ER 1520, 1552; see also ER 1610, 1904-05.
Most wanted to hold onto their shares because they believed in their
companies. ER 704-05, 971-72, 1282, 1333.
Spanier exploited these stockholders. He told the executives

that they could borrow substantial sums of cash by pledging their
stock as collateral, rather than selling the stock. Spanier persuaded
his clients to enter into loan agreements with a company called

Argyll (owned by Spanier’s co-conspirators), claiming that Argyll
was a multi-billion-dollar company with significant cash reserves
that would be used to fund the loans. ER 773, 973-78, 1267, 1275,
1555, 1905-08. Spanier explained that Argyll would loan the
borrower between 50 and 70 percent of the stock value in cash. In
exchange, the borrower would tender his shares of stock to Argyll

for a three-year period. ER 1266-67, 1331-32, 1386, 1466-67, 1521-
22, 1552-54, 1905-08.
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In negotiating the loan terms, Spanier consistently assured
the borrowers that Argyll would not sell the stock unless the
borrower was in default on his loan or interest payments. See, e.g.,
ER 1266-67 (“That assurance was unconditional.”); ER 1622-23
(“Your shares will not be sold.”). As the loan agreements promised,
the borrowers expected that as soon as they paid off their loans
(with interest), their stock would be returned. See, e.g., ER 933,
1277 (“[T]hat is exactly what [section] 9.1 [of the loan agreement]
says.”). Spanier’s victims testified at trial that this was a critical
term to the agreement—“the primary consideration,” the “most

important criteria of anything,” “the key element of the whole
transaction.” ER 1386-87, 1906. As one explained, “[o]therwise
there is no point to the loan. You might as well just sell.” ER 1266-
67; see also ER 977, 1009-10, 1020, 1306, 1310, 1332-33, 1340,
1386-93, 1553-55, 1571, 1621-22.
Yet despite Spanier’s promises, his clients repeatedly found
that their stock was not returned when they fulfilled the terms of
their loans. ER 1285-86, 1342-43, 1349, 1522-24, 1628-29, 1913-29.
That is because the stock was long gone. Unbeknownst to the

borrowers, Spanier’s partners at Argyll immediately sold the stock
to fund the loans, or to fund other loans, similar to a Ponzi scheme.
See ER 895-918, 986, 1087, 1310, 1313-14, 1322, 1398, 1411, 1418-
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19, 1566-671, 1638-39, 1758; Supplemental Excerpts of Record
(SER) 7-9.
Spanier also lied to his victims about his stake in the scheme.
The loan agreements represented that Spanier would receive a

broker’s fee of one to five percent of the value of the loan. ER 707,
981-83, 1031-32, 1039, 1272-73, 1389, 1532, 1545, 1757. But the
disclosure of that “pretty straightforward fee structure,” ER 1389,
was only half of the truth. In addition to the disclosed commission,
Spanier received an additional cut as soon as Argyll sold the client’s
stock. ER 729-39, 906-18, 981, 1272-74, 1389-91, 1545-49. Over the
course of the conspiracy, Spanier earned almost $5 million in
undisclosed fees. SER 1-6. Although—or perhaps because—“[a]n
undisclosed brokerage commission in a loan transaction is the most

notorious red flag that [a borrower] can get,” ER 1272-74, Spanier
never disclosed this additional commission to his clients.
During the course of the conspiracy, Spanier and his co-

conspirators defrauded these victims of over $100 million. See ER
1985-89. In 2012, Spanier and his two Argyll partners were indicted
on charges of conspiracy, wire fraud, mail fraud, and securities

fraud.
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2. 2013 Trials, Appeal, Dismissal Without Prejudice

Spanier’s case first went to trial in May 2013, along with one
of the Argyll co-conspirators.1 The jury convicted the Argyll co-
conspirator, but was unable to reach unanimous verdicts on most

of the charges against Spanier. Case No. 12-CR-0918-BEN, R 212.
The district court declared a mistrial. Id. at R 213. The grand jury
returned a superseding indictment (the “2013 Indictment”). Id. at
R 280, 282. The case went to trial on that indictment in December
2013. The jury returned guilty verdicts on all counts. Id. at R 333.
Spanier appealed. He argued that the district court violated
the Speedy Trial Act by setting the retrial more than 70 days after
the mistrial. Spanier also argued that the district court erred in
instructing the jury by “allowing an omissions theory of criminal

fraud without also requiring the jury to find a statutory duty to
disclose or a fiduciary or similar trust relationship.” Appellant’s
Opening Brief, No. 14-50306, R 10-1 (Oct. 22, 2014) at 44-57. This
Court reversed the convictions, agreeing that the district court had
violated the Speedy Trial Act. United States v. Spanier, 637
F. App’x 998 (9th Cir. 2016) (unpublished). Although the Court

found dismissal of the 2013 Indictment appropriate as a remedy, it
remanded to the district court to “determine whether the operative
1 The second Argyll co-conspirator committed suicide before the

case went to trial. ER 101.
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indictment should be dismissed with prejudice.” Id. at 1000.
Because the presiding district judge had expressed his “views on
this circuit’s Speedy Trial Act precedent,” the Court remanded “for
the assignment of a different judge solely to make the dismissal
determination.” Id. The Court otherwise “reject[ed Spanier’s]
challenge to the district court’s jury instructions,” advising that
“[t]he district court acted well within its discretion in using the
[Ninth Circuit] model jury instructions” regarding the elements of
Spanier’s fraud offenses. Id. The mandate issued on February 16,
2016. ER 2112.
The case was remanded to a different district judge (Judge
Miller) to decide whether the dismissal of the 2013 Indictment
should be with or without prejudice. ER 100-109. After briefing by

the parties, Judge Miller concluded under 18 U.S.C. § 3162(a)(2)
that the indictment should be dismissed without prejudice, thus
permitting the government to reindict. ER 103-09. Judge Miller
issued his decision dismissing the 2013 Indictment without
prejudice on May 11, 2016. ER 109.

3. July 2016 Indictment
Within 60 days of Judge Miller’s order, on July 1, 2016, the
government obtained a new indictment (the “July 2016
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Indictment”). ER 2115-29. It contained the same charges that had
been dismissed without prejudice from the 2013 Indictment.
Spanier moved to dismiss the mail and wire fraud counts
(Counts 2-18) of the July 2016 Indictment as time-barred under the
general five-year statute of limitations. ER 2093-2106. Spanier
acknowledged that the tolling provisions of 18 U.S.C. §§ 3288 and
3289 provide the government a 60-day grace period from “the date
the dismissal of the indictment … becomes final” to reindict a case
when, as here, an indictment is dismissed as a result of an appeal.
But Spanier argued that the dismissal of the 2013 Indictment

became “final” when this Court issued its mandate in
February 2016, meaning that the July 1, 2016 indictment date fell
outside the 60-day grace period. ER 2099. The government

disagreed, arguing that the dismissal could not have been “final”
until Judge Miller issued his order in May 2016 dismissing the 2013
Indictment without prejudice and permitting the government to
seek charges anew. ER 2085-86.
The district court initially agreed with Spanier and dismissed
the mail and wire fraud counts. ER 2082-90. The court based its
decision on the language used at the end of this Court’s
memorandum disposition, which stated: “AFFIRMED IN PART;
INDICTMENT DISMISSED, and CASE REMANDED WITH
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INSTRUCTIONS TO REASSIGN FOR LIMITED PURPOSE OF
DETERMINING WHETHER DISMISSAL IS WITH OR
WITHOUT PREJUDICE.” ER 2086-87 (emphasis added). The court
read this language to be a final dismissal of the indictment, noting
that it might have reached a different decision if the mandate
stated that the Court was “remand[ing] the case to the district court
with instructions for the district court to dismiss the indictment,”
as it often does in this situation. Id. (citing cases). The court
dismissed Counts 2-18, but denied several unrelated motions to
dismiss the conspiracy and securities fraud counts (Counts 1

and 19), thus leaving those counts pending. ER 2090-92.
4. Superseding Indictment, Reinstatement of Counts 2-18
The government obtained a superseding indictment in

October 2016 that alleged the two remaining charges (the
“Superseding Indictment”). ER 2070-81.
Although Spanier had never previously challenged those
counts as time-barred, he now moved to dismiss them both.
ER 2027-41. The government opposed and also moved for
reconsideration of the court’s earlier dismissal of Counts 2-18,

arguing that the court had misinterpreted the terms of the tolling
statutes. ER 2016-25. The district court granted the government’s
reconsideration motion. The court explained that its decision had
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been “a close call,” and it would cause no “unfairness or surprise” to
reinstate the mail and wire fraud counts because the evidence on
those counts was identical to the evidence on the still-pending
conspiracy and securities fraud counts. ER 88-89, 96-97, 1803-10.
The court denied Spanier’s motion to dismiss the two counts of the
Superseding Indictment.2
5. Trial, Verdict, Post-Trial Motions, Sentencing

The case proceeded to trial and the jury found Spanier guilty
on all counts. ER 228-31, 235-42.3 The district court sentenced
Spanier to 96 months in custody, three years of supervised release,
and $20,669,379.98 in restitution. ER 110-17. Spanier appealed and
moved this Court for bail pending appeal. The Court denied the
motion, finding that Spanier had “not shown that the appeal raises
a ‘substantial question’ of law or fact that is ‘fairly debatable.’”
Ninth Cir. ECF No. 12.
SUMMARY OF ARGUMENT
1. The district court did not abuse its discretion in
determining that the 2013 Indictment should be dismissed without
2 The two indictments were merged before trial. The counts of

the Superseding Indictment were renumbered Count 1 (conspiracy)
and Count 19 (securities fraud). The fraud counts remained Counts
2-18. ER 1808-09.
3 The government voluntarily dismissed Counts 14, 17, and 18
before the case went to the jury. ER 692.
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prejudice. The court balanced the applicable statutory factors,
made the requisite factual findings, and determined that the
overall weight of the statutory considerations favored dismissal
without prejudice. Although Spanier disagrees with the court’s
balancing of the statutory factors, that disagreement is not enough
to demonstrate an abuse of discretion.
2. All counts of conviction were timely. Spanier agrees that
the 60-day grace period of 18 U.S.C. §§ 3288 and 3289 applies
where, as here, an indictment is dismissed as a result of an appeal.
The dismissal of the 2013 Indictment did not become “final” until
the district court issued its decision dismissing the indictment
without prejudice in May 2016. Because the July 2016 Indictment
was returned within 60 days of that order, all counts of conviction

were timely.
Even if the 60-day grace period does not render the July 2016
Indictment timely as a whole, the conspiracy count (Count 1) and
the securities fraud count (Count 19) are independently timely.
Both counts were included in the Superseding Indictment, and
identified fraudulent acts occurring through August 2011. Because

the Superseding Indictment relates back to the July 1, 2016
indictment date, both counts are timely within the applicable
statutes of limitations.
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3. Spanier’s complaint about the absence of a “pure
omissions” jury instruction fares no better in this appeal than it did
in the last. This Court rejected Spanier’s arguments in the prior
appeal, concluding that pure omissions instructions are not
required in a “half-truths” case like this one. Spanier attempts to
get around this Court’s prior ruling by arguing that the decision in
United States v. Shields, 844 F.3d 819 (9th Cir. 2016), is an
intervening change in the law. But Shields bears only on the
instructions required in a pure omissions case. The government did
not rely on an omissions theory here, so no additional instructions

were required. And even if they were, the government’s consistent
theory of fraudulent misrepresentations was sufficient to render
any instructional error harmless.

4. The district court did not abuse its discretion in refusing
to give a withdrawal or a multiple-conspiracies instruction. There
was no foundation in the evidence for either instruction. In any
event, the evidence on the conspiracy count was overwhelming. Any
error was accordingly harmless.
5. The district court did not err in instructing the jury

members post-trial that they should not discuss the substance of
their deliberations with counsel. That instruction accords with the
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rules governing post-trial contact with jurors and Spanier’s claim
of prejudice from the instruction is speculative at best.
ARGUMENT
A. The District Court Did Not Abuse Its Discretion In Ordering

Dismissal of the 2013 Indictment Without Prejudice
1. Standard of Review
Spanier’s challenge to Judge Miller’s decision to dismiss the
2013 Indictment without prejudice (AOB 68-74) is reviewed for
abuse of discretion. United States v. Taylor, 487 U.S. 326, 332
(1988). This Court may not “substitute its judgment for that of the
trial court.” Id. at 336. Rather, “when the statutory factors are
properly considered, and supporting factual findings are not clearly

in error, the district court’s judgment of how opposing
considerations balance should not lightly be disturbed.” Id.
2. Judge Miller Did Not Abuse His Discretion

A violation of the Speedy Trial Act requires dismissal of the
indictment. 18 U.S.C. § 3162(a)(2). But the Act allows the district
court to determine whether the dismissal should be with or without

prejudice. The Act instructs that, “[i]In determining whether to
dismiss the case with or without prejudice, the court shall consider,
among others, each of the following factors: the seriousness of the
offense; the facts and circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the administration
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of this chapter and on the administration of justice.” Id. Judge
Miller carefully considered these statutory factors and properly
concluded that they weighed in favor of dismissal without prejudice.
First, Judge Miller properly concluded that the “seriousness
of [Spanier’s] offense” weighed in favor of permitting re-
prosecution. Judge Miller observed that “[e]ach count of mail, wire,
and securities fraud” alleged in the indictment “carries a maximum
custodial term of 20 years, a $250,000 fine, 3 years of supervised
release, criminal forfeiture, and mandatory restitution for the
victims.” ER 103. Judge Miller found that Spanier’s “complex

financial fraud” “caused significant harm to hundreds of individuals
in an amount that exceeds $100,000,000.” Id. Judge Miller also
pointed to the 120-month sentence Spanier received after his first

conviction, which “reflects the seriousness and grave harm caused
by Spanier’s participation in the financial fraud.” Id.
Spanier counters (as he did below) that “his crimes are
economic in nature and are less serious than other crimes like
violent or drug-trafficking crimes,” that his victims were
“sophisticated executives,” and that “he was less culpable than his
co-defendants.” AOB 69-70; see ER 2137-38. Judge Miller
considered these arguments and found them “unpersuasive.”
ER 104. As Judge Miller explained, Spanier’s crimes were “indeed
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serious and caused significant harm to hundreds of individuals.” Id.
In fact, the “vast majority of drug crimes” prosecuted in the
Southern District “involve custodial sentences less than that
received by Spanier.” Id. “In other words, for Spanier to argue that
his financial fraud crimes are less serious than drug-trafficking
crimes misrepresents the nature of his own crimes.” Id.
Second, Judge Miller considered “the facts and circumstances
of the case which led to the dismissal.” ER 104-05. He observed that
the Speedy Trial Act violation was not due to “bad faith by any
party,” but was “the result of inadvertent oversight by the parties

and the trial court.” ER 104; see ER 105 n.4 (noting that “[a]t the
time of oral argument, defense counsel, highly learned and
experienced, commendably conceded he also initially overlooked the

mandates of the Speedy Trial Act” when the court set the retrial
date). Judge Miller’s observations were correct. The Speedy Trial
Act violation arose following the district court’s declaration of a
mistrial at Spanier’s first trial. Spanier, 637 F. App’x at 999. As this
Court explained, “the speedy trial clock began running on May 31,
2013, when the district court declared a mistrial,” and there was
“no dispute that the district court set Spanier’s retrial date for more
than 70 days after the mistrial.” Id. “Regrettably,” the Court
concluded, “at the time the continuances were granted, the district
16
(23 of 71)
court did not make the requisite ‘findings that the ends of justice
served by taking such action outweigh the best interest of the public
and the defendant in a speedy trial.’” Id. That practice of
“retroactively characterizing a continuance to justify a violation of
the Speedy Trial Act was ‘inconsistent with the language and policy
of the Act.’” Id. This Court’s decision readily supports Judge Miller’s
conclusion that there was “simply no evidence that any party
engaged in any conduct other than inadvertence and a desire to
accommodate the calendars of counsel.” ER 105. As Judge Miller
properly concluded, this factor “weighs in favor of dismissal of the

indictment without prejudice.” Id.
Third, Judge Miller determined that reprosecution “would
have no effect on the administration of the Speedy Trial Act” and

would serve the ends of justice. ER 105-09. That determination was
well-founded. Spanier relies heavily (as he did below) on United
States v. Clymer, 25 F.3d 814 (9th Cir. 1984), to challenge Judge
Miller’s finding on this factor. AOB 72-73. Judge Miller
acknowledged that “[t]he facts and circumstances of Clymer merit
careful analysis.” ER 105-08. But as Judge Miller explained, the

sort of long-standing disregard of the Speedy Trial Act this Court
highlighted in Clymer was not a concern in this case. ER 107. Judge
Miller also distinguished Clymer in two ways: “(1) Clymer had
17
(24 of 71)
already been incarcerated for more than five years (under the
proffered plea agreement offered by the Government he would have
served only four years), and (2) … he was not a central participant
in the scheme to possess and manufacture methamphetamine.” Id.
By contrast, in this case, Spanier was an integral participant in the
conspiracy and “was released on bond shortly after his arrest and
he has remained on bond ever since.” Id. Judge Miller correctly
concluded that “[t]hese circumstances, unlike Clymer, do not
compel a finding that dismissal with prejudice would promote the
general administration of justice.” Id.

Judge Miller also considered and rejected Spanier’s claim of
prejudice relating to the government’s use of an immunized witness
(Manny Bello) at the retrial. AOB 71. Judge Miller found that
Spanier “fail[ed] to articulate how Bello’s testimony unfairly
prejudiced him in any manner.” ER 108. Although Spanier
“suggested that the only difference between the two trials was
Bello’s testimony in the retrial,” Spanier’s suggestion was
“somewhat speculative as the retrial involved only Spanier” and not
his co-conspirator, “and, of course, a different jury.” Id.

On appeal here, Spanier does not argue that Judge Miller
“failed to consider all the [statutory] factors.” Taylor, 487 U.S. at
344. Nor does Spanier argue that Judge Miller relied on factors that
18
(25 of 71)
“were unsupported by factual findings or evidence in the record.”
Id. With good reason. Judge Miller’s conclusion that Spanier’s
crimes were “serious” in light of the penalties he faced, the sentence
he received after the first retrial, and the harm to the victims, was
directly in line with this Court’s precedents. See, e.g., United States
v. Lewis, 611 F.3d 1172, 1180 (9th Cir. 2010) (citing cases holding
that potential sentence of up to five years imprisonment renders
offense “serious” for Speedy Trial Act purposes). So too was Judge
Miller’s conclusion that despite the speedy trial violation, all
parties “had acted in good faith.” Id.; see, e.g., United States v.
Alvarez-Perez, 629 F.3d 1053, 1063 (9th Cir. 2010) (affirming
dismissal without prejudice where “there is no evidence … that the
government intentionally delayed his trial in order to harass him

or otherwise acted in bad faith”). The government’s choice to defend
the initial speedy trial ruling on appeal does not amount to bad
faith or misconduct like that at issue in the cases Spanier cites
(AOB 71-73). Although this Court ultimately found the Speedy
Trial Act arguments unpersuasive in the first appeal, they were
based on a reasonable interpretation of the record and the law. See,

e.g., Spanier, 637 F. App’x at 999 (acknowledging that “[t]he Speedy
Trial Act is not crystal clear on when a district court must place its
findings on the record”).
19
(26 of 71)
In short, although Spanier disagrees with the court’s
balancing of the statutory factors, “disagreement does not
demonstrate an abuse of discretion.” Lewis, 611 F.3d at 1179. Judge
Miller “balanced the applicable statutory considerations, made the
requisite factual findings, and determined that the overall weight
of the statutory considerations favored dismissal without
prejudice.” Id. at 1180-81.
B. All Counts of Conviction Were Timely

Spanier contends that “every count of conviction was barred
by the statute of limitations.” AOB 47-66 (Issue No. II). That
argument fails for a number of reasons.
First, Spanier agrees that the 60-day grace period of 18 U.S.C.
§§ 3288 and 3289 applies where, as here, an indictment is dismissed

as a result of an appeal. Because the July 2016 Indictment was
returned within 60 days of the district court’s May 2016 order
dismissing the 2013 Indictment without prejudice, all of the counts

of conviction are timely.
Second, even if the 60-day grace period in Sections 3288 and
3289 did not render the July 2016 Indictment timely as a whole, the
conspiracy count (Count 1) and the securities fraud count
(Count 19) are independently timely. Both of those counts were
included in the Superseding Indictment and identified fraudulent
20
(27 of 71)
acts occurring through August 2011. Because the Superseding
Indictment relates back to the July 2016 Indictment date, both
counts are timely within the applicable statutes of limitations.
This Court “review[s] de novo a district court’s decision not to
dismiss an indictment on statute of limitations grounds.” United
States v. Leo Sure Chief, 438 F.3d 920, 922 (9th Cir. 2006).
2. The July 2016 Indictment Was Returned Within the 60-
Day Grace Period in 18 U.S.C. §§ 3288 and 3289
The July 2016 Indictment charging Spanier with conspiracy
(Count 1), mail and wire fraud (Counts 2-18), and securities fraud
(Count 19), was returned within the 60-day grace period set forth
in 18 U.S.C. §§ 3288 and 3289. It is therefore timely in its entirety.
Sections 3288 and 3289 provide in pertinent part:

Whenever an indictment or information charging a
felony is dismissed [due to an appeal], a new indictment
may be returned in the appropriate jurisdiction …
within 60 days of the date the dismissal of the
indictment or information becomes final.4
Under both statutes, the 60-day period begins to run when the
“dismissal of the indictment … becomes final.” Id. The grace period
is intended to “protect the government” when litigation delays (such
4 Section 3288 governs “indictments and information dismissed

after period of limitations”; section 3289 governs “indictments and
information dismissed before period of limitations.” The operative
language of the statutes is identical.
21
(28 of 71)
as an appeal) cause the statute of limitations to run. United States
v. Wilsey, 458 F.2d 11, 12 (9th Cir. 1972).
Spanier acknowledges that Sections 3288 and 3289 apply to
“the posture of this case.” AOB 53. The only question before this
Court is when the dismissal of the 2013 Indictment became
“final”—i.e., when the 60-day clock was triggered. Spanier argues
that the dismissal of the indictment became “final” when this Court
issued its mandate in March 2016. AOB 54-55. As the government
argued below, the dismissal of the indictment could not have
become “final” until Judge Miller issued his decision dismissing the
indictment without prejudice in May 2016. That is the only reading
that comports with the statutory language and with common sense.
In its prior decision in this case, this Court explained that

“Speedy Trial Act violations require dismissal of a defendant’s
indictment.” Spanier, 637 F. App’x at 1000. The Court advised that
its “normal practice [is] to remand and allow the presiding judge to
determine whether the operative indictment should be dismissed
with prejudice.” Id. Following that “normal practice,” the Court
“remand[ed] for the assignment of a different judge solely to make

the dismissal determination.” Id. And in accordance with that
“normal practice,” the mandate issued, the case was remanded to
the district court, and the court (Judge Miller) ruled. It was not
22
(29 of 71)
until Judge Miller made the “dismissal determination” that the
dismissal of the 2013 Indictment became “final.”
This interpretation accords with the plain text of Sections
3288 and 3289. Even though the statutes specifically address what
happens after an appeal, the 60-day clock starts to run on the date
“the dismissal of the indictment … becomes final,” not when the
appellate decision becomes final. 18 U.S.C. §§ 3288, 3289 (emphasis
added). Through that language, the statutes acknowledge the
possibility of some further action between the appellate mandate
and a final order of dismissal. Otherwise, the statute would trigger

the 60-day clock with the issuance of the appellate mandate.
Moreover, a decision is not “final” unless it “ends the litigation on
the merits and leaves nothing for the court to do but execute the
judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). When
this Court remanded the case to the district court, there was more
for the district court to do than simply “execute the judgment”—the
district court first had to make a determination whether the
dismissal should be with or without prejudice. Only after that
determination was made could the indictment be dismissed. See

ER 109. As a practical matter, only Judge Miller’s May 2016 order
could operate as a “final” order dismissing the indictment.
23
(30 of 71)
The logic and purpose of the tolling statutes also support this
interpretation. The tolling statutes were designed to “protect the
government” when, as here, “a defendant succeeds in securing
dismissal of his indictment for error, defect or irregularity.” Wilsey,
458 F.2d at 12. It was not until Judge Miller issued his dismissal
order that the United States knew it could return to the grand jury
to seek a new indictment. Yet Spanier’s interpretation of the tolling
statutes would require the United States to obtain an indictment
before learning whether it was permitted to do so. Otherwise, the
timeliness of the indictment would depend entirely on the length of

time it took the district court to make its dismissal determination.
That interpretation does little to “protect the government.” Id. It
instead takes the ability to reindict out of the government’s hands.

Spanier argues that the dismissal of the indictment became
“final” when this Court issued its mandate. AOB 53-55. He relies
exclusively on the language used at the end of the memorandum
disposition, which states:

AFFIRMED IN PART; INDICTMENT DISMISSED,
and CASE REMANDED WITH INSTRUCTIONS TO
REASSIGN FOR LIMITED PURPOSE OF
DETERMINING WHETHER DISMISSAL IS WITH OR
WITHOUT PREJUDICE.5
5 This language appears to be somewhat unusual. In most

cases, when this Court remands for the district court to make fur-
24
(31 of 71)
Spanier invokes the “rule of mandate,” which states that “[a]
district court, upon receiving the mandate of an appellate court
cannot vary it or examine it for any other purpose than execution.”
AOB 54 (citing United States v. Cote, 51 F.3d 178, 181 (9th Cir.
1995)). But that principle cannot carry the weight Spanier places
on it. Indeed, even the cases Spanier cites recognize that a district
court often can and must take action on remand from this Court,
including “consider[ing] and decid[ing] any matters left open by the
mandate of [the] court,” or “dismiss[ing] a case when the mandate
require[s] it.” Id. at 181-82. That is precisely what this Court’s

opinion required. The Court remanded to the district court “to make
the dismissal determination” and, necessarily, to enter a final order
of dismissal once that determination was made. Spanier, 637 F.

App’x at 1000. Because this Court left open whether the dismissal
would be with or without prejudice, the mandate from this Court
ther determinations, the disposition states that the case is “VA-

CATED and REMANDED with instructions.” United States v. Liu,
731 F.3d 982, 998 (9th Cir. 2013); see ER 2087-88 (citing cases with
similar language); see also United States v. Kellington, 217 F.3d
1084, 1093 (9th Cir. 2000) (the mandate should be read according
to “the spirit of the circuit court’s decision”); United States v. Muck-
leshoot Indian Tribe, 235 F.3d 429, 433 (9th Cir. 2000) (advising
that “[o]pinions, unlike statutes, are not usually written with the
knowledge or expectation that each and every word may be the sub-
ject of searching analysis”).
25
(32 of 71)
could not have been a “final” order of dismissal for purposes of
Sections 3288 and 3289.
The “dismissal of the indictment … bec[ame] final” on May 11,
2016, when Judge Miller ordered that “[t]he [2013 Indictment] is
dismissed without prejudice.” ER 109. Because the United States
sought the new indictment within 60 days of that order, all counts
contained in the July 2016 Indictment were timely.6

3. The Conspiracy Count Is Timely Independent of the
Tolling Statutes
Even if this Court were to hold that the 60-day grace period
does not render the indictment timely as a whole, the conspiracy
count was independently timely under the five-year statute of

limitations in 18 U.S.C. § 3282.
The July 2016 Indictment charged Spanier with a wide-
ranging conspiracy spanning from February 2003 to October 2013.

This was the same conspiracy that had been alleged in the earlier
indictments and was the subject of Spanier’s first two trials. The
indictment specifically alleged 19 overt acts which, “among others,”

Spanier committed against 13 specific victim borrowers. ER 2119-
6 Spanier does not—nor could he—contend that any of the

counts of conviction are untimely if the 60-day grace period applies.
Because all counts were timely when the 2013 Indictment was re-
turned, the additional 60 days provided by statute insulate all of
those charges from any statute of limitations defense.
26
(33 of 71)
22. The conspiracy charge alleged that the conspiracy continued “up
to and including October 25, 2013,” and identified overt acts
through May 11, 2011. ER 2117, 2122.
Spanier’s initial motion to dismiss the July 2016 Indictment
did not include the conspiracy count. ER 2098-2100. Accordingly,
after the district court initially dismissed the mail and wire fraud
charges, the government obtained a Superseding Indictment re-
alleging the conspiracy. ER 2057-69. The superseding conspiracy
count alleged the same “methods and means” as the earlier
indictments. ER 2059-60. It also alleged the same list of overt acts.

ER 2061-64. But in order to make clear that the conspiracy had
continued through at least August 2011—i.e., within five years of
July 1, 2016—the Superseding Indictment included additional

overt acts specifically relating to Spanier’s fraud on victim “RS.”
The July 2016 Indictment alleged three overt acts relating to
RS: a first loan agreement in May 2009 (¶12(g)); a second loan
agreement in March 2011 (¶12(n)); and a March 2011 wire transfer
made in connection with the second loan agreement (¶12(p)).
ER 2119-21.7 The Superseding Indictment alleged the following
7 These same overt acts were alleged in the 2012 and 2013 in-
dictments. See Case No. 12-CR-0918-BEN, R 1 at 10, R 282 at 7.
Victim RS also testified at both prior trials regarding the March
2011 loan agreement and Spanier and his co-conspirators’ actions
following that loan.
27
(34 of 71)
subsequent overt acts, all of which related to that same March 2011
loan agreement:
 On July 13, 2011, Spanier and RS discussed Argyll’s return
of RS’s shares (¶12(t));
 On July 18, 2011, Spanier emailed RS concerning Argyll’s
return of RS’s stock (¶12(u));
 On August 3, 2011, Spanier informed RS that he had a
meeting with Argyll (¶12(v));
 On August 3, 2011, one of the Argyll co-conspirators
reassured RS that Argyll would return his shares (¶12(w));
 On August 7, 2011, Spanier and a co-conspirator caused RS
to make an interest payment (¶12(x));
 On August 8, 2011, the Argyll co-conspirator emailed RS
and agreed to delay future interest payments (¶12(y)).
ER 2064-65. The conspiracy count in the Superseding Indictment
was otherwise identical to the previous conspiracy charge.
The superseding conspiracy count was timely. A superseding
indictment is timely if two requirements are met. First, “the

original indictment must be validly pending.” United States v.
Rutkoske, 506 F.3d 170, 175 (2d Cir. 2007). Second, the superseding
indictment may not “materially broaden or substantially amend the
original charges.” Id.; accord United States v. Sears, Roebuck & Co.,
Inc., 785 F.2d 777, 779 (9th Cir. 1986). The superseding conspiracy
charge meets both requirements.
28
(35 of 71)
First, the district court did not dismiss the conspiracy count
of the July 2016 Indictment when it dismissed the substantive
fraud counts. ER 2098-2100. The conspiracy charge was thus
“validly pending” when the grand jury returned the Superseding
Indictment. Rutkoske, 506 F.3d at 175.
Spanier contends that the conspiracy charge in the July 2016
Indictment was not “validly pending” because that charge itself was
untimely. AOB 49-51. Spanier is incorrect. The five-year statute of
limitations on a conspiracy charge is satisfied “if the Government
proves that the conspiracy operated within the five-year period

preceding the date of the indictment and that a conspirator
knowingly committed an overt act in furtherance of the conspiracy
within that same period.” Rutkoske, 506 F.3d at 174-75. “[I]t is well-
established that the Government may satisfy this test by proof of
an overt act not explicitly listed in the indictment, as long as a
defendant has had fair and adequate notice of the charge for which
he is being tried, and he is not unduly prejudiced by the asserted
variance in the proof.” Id. at 175 (citations omitted); accord United
States v. Bentson, 220 F. App’x 643, 647 (9th Cir. 2007)

(unpublished).
The conspiracy count in the July 2016 Indictment was timely
under this well-established test. The July 2016 Indictment alleged
29
(36 of 71)
that the conspiracy continued “up to and including October 25,
2013,” ER 2117, and specifically listed allegations relating to the
March 2011 loan to RS, ER 2121. Although the July 2016
Indictment did not include a specific overt act past May 2011,
Spanier certainly had “fair and adequate notice [that] the
[conspiracy] charge for which he is being tried” extended into 2013
and included his actions and misrepresentations regarding the
March 2011 loan. Rutkoske, 506 F.3d at 175. This is especially so as
evidence relating to that loan was introduced at Spanier’s two prior
trials, which well pre-dated the July 2016 Indictment.

In any event, there can be no doubt that at trial here the
government “satisfied the statute of limitations by proving [an]
overt act within the limitations period.” See id. RS testified

regarding communications he had with Spanier in June and July
2011 in which RS sought Spanier’s assistance in getting his stock
back from Argyll. ER 1069-75. RS also testified that Spanier’s
reassurances caused him to continue to make payments through
August 2011. ER 1077-78 (“I’m trusting Jeffrey enough to tell me if
it is obvious not to make payments, let me know.”); ER 1080-81

(“[Y]ou reassured us it was business as usual regarding making
payments, as well as paying back our loans and the return of
asset[s].”); ER 1086-87 (on August 7, 2011, RS “initiated a wire
30
(37 of 71)
transfer” for $3,839.06). This evidence was confirmed when the jury
was required to specifically find that “one of the members of the
conspiracy performed at least one overt act on or after July 1, 2011,
for the purpose of carrying out the conspiracy.” ER 21, 287. The
conspiracy charge was validly pending when the Superseding
Indictment was returned.
Second, the Superseding Indictment did not impermissibly
broaden the scope of the conspiracy by alleging a handful of
additional overt acts relating to the March 2011 loan. “The central
concern in determining whether the counts in a superseding

indictment should be tolled based on similar counts included in the
earlier indictment is notice.” United States v. Liu, 731 F.3d 982, 997
(9th Cir. 2013). “If the allegations and charges are substantially the
same in the old and new indictments, the assumption is that the
defendant has been placed on notice of the charges against him.
That is, he knows that he will be called to account for certain
activities and should prepare a defense.” United States v. Pacheco,
912 F.2d 297, 305 (9th Cir. 1990) (citation omitted).
The July 2016 Indictment (not to mention the prior

indictments and trials) put Spanier on notice that he was being
charged with a conspiracy that included the March 2011 loan to RS.
The addition of the overt acts from July and August provided
31
(38 of 71)
additional details regarding the actions that Spanier and his co-
conspirators took to perpetuate the initial fraud carried out on RS.
As this Court has recognized, a superseding indictment that
includes “additional details” in its factual allegations does not
“constitute a substantial change in the superseding indictment.”
Sears, 785 F.3d at 779 (quoting United States v. Friedman, 649
F.2d 199, 204 (3d Cir. 1981)); see also, e.g., United States v.
Salmonese, 352 F.3d 608, 623 (2d Cir. 2003) (additional overt acts
over the course of two months “did not materially broaden or
substantially amend the conspiracy charged” where both

indictments “alleged the identical economically motivated
conspiracy to commit fraud and bribery”); United States v. Pearson,
340 F.3d 459, 465 (7th Cir. 2003), vacated on other grounds sub
nom. Hawkins v. United States, 543 U.S. 1097 (2005) (superseding
indictment that “modified the end date of the conspiracy from
February 1996 to September 2000 and added three overt acts which
occurred during that time” did not impermissibly broaden the
indictment); United States v. O’Bryant, 998 F.2d 21, 24-25 (1st Cir.
1993) (superseding indictment that provided “slightly more detail

in terms of overt acts” did not materially broaden the indictment);
United States v. Lash, 937 F.2d 1077, 1081-82 (6th Cir. 1991)
(although additional overt acts supplied “different details” about
32
(39 of 71)
the operation of the conspiracy, both indictments “described the
same conspiracy to defraud investors during the same time frame
through the operations” of the same two businesses). Both
indictments “charge the same conspiracy, with the same objects, in
violation of the same statute[s].” O’Bryant, 998 F.2d at 24. Under
these circumstances, the Superseding Indictment did not
materially broaden the earlier indictment.8

The Superseding Indictment relates back to the July 2016
Indictment. The conspiracy charge contained in that indictment
alleged overt acts post-dating July 2011, and was therefore timely.
4. The Securities Fraud Count Is Independently Timely
The parties agree that the securities fraud count is subject to
the six-year statute of limitations in 18 U.S.C. § 3301. AOB 55-58.

The July 2016 Indictment charged Spanier with a lengthy scheme
to commit securities fraud from February 2003 through October
2013. ER 2126-27. The Superseding Indictment likewise charged
8 Spanier contends that the additional overt acts raised new

factual questions regarding “whether there was an after-the-fact
cover-up” after the FBI began its investigation, which was governed
by “[a]n entirely different body of law.” AOB 52. Nothing in the Su-
perseding Indictment supports this theory. As the government’s
proof at trial demonstrated, the events from July and August 2011
bore directly on Spanier’s knowledge of the fraud, as evidenced by
his continuing promises to borrowers. See ER 328-32. The govern-
ment never argued a “cover-up” theory to the jury. There is no evi-
dence in the record to support Spanier’s claim.
33
(40 of 71)
Spanier with a scheme to commit securities fraud from February
2003 through March 14, 2012. ER 2065. Under any method of
calculation, the securities fraud charge was timely.
Spanier nonetheless contends that the securities fraud count
is untimely because Spanier defrauded his first investor in 2003, at
which point the crime was complete. AOB 56-58. That is not so. The
indictment alleges a violation of Section 10(b) of the Securities
Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R.
§ 240.10b-5. ER 2065. Section 10(b) provides in pertinent part:

It shall be unlawful for any person … [t]o use or employ,
in connection with the purchase or sale of any security
... any manipulative or deceptive device or contrivance in
contravention of such rules and regulations as the
Commission may prescribe as necessary or appropriate
in the public interest or for the protection of investors.
15 U.S.C. § 78j(b) (emphasis added). Rule 10b-5 specifies that the
“manipulative or deceptive device or contrivance” to which the
statute refers can consist of “any device, scheme, or artifice to
defraud,” “any untrue statement [or omission] of a material fact,”
or “any act, practice, or course of business which operates or would
operate as a fraud or deceit upon any person.” 17 C.F.R. § 240.10b-
5 (emphases added). Rule 10b-5 expressly contemplates that a
securities fraud offense can be committed through a “scheme … to
defraud” or through a “practice, or course of business” that operates
34
(41 of 71)
as a fraud. Id. Such a fraud is not complete until that scheme or
practice comes to an end.
This analysis accords with this Court’s securities fraud
jurisprudence. In United States v. Brown, 578 F.2d 1280 (9th Cir.
1978), the Court considered when the limitations period is triggered
under Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a).9 The
fraud charged in that case involved the sale of forged land purchase
contracts (the relevant securities), which were followed by monthly
payments to individual investors that “served the purpose of lulling
the recipients of the mailings into a state of passive inactivity, thus
perpetuating the fraudulent scheme.” Brown, 578 F.2d at 1282,
1285. The Court rejected an interpretation of Section 17(a) that
would have rendered the crime complete when “the offer or sale of
any securities” was completed. Id. at 1285. Rather, the Court found
that in this particular fraud scheme, the “mailings of purported
9 That section makes it “unlawful for any person in the offer or

sale of any securities … by the use of any means or instruments of
transportation or communication in interstate commerce by the use
of mails, directly or indirectly (1) to employ any device, scheme, or
artifice to defraud, or (2) to obtain money or property by means of
any untrue statement of a material fact or any omission to state a
material fact necessary in order to make the statements made, in
light of the circumstances under which they were made, not mis-
leading; or (3) to engage in any transaction, practice, or course of
business which operates or would operate as a fraud or deceit upon
the purchaser.” 15 U.S.C. § 77q(a).
35
(42 of 71)
monthly payments to the purchasers of the land contracts …
constitute[d] an integral part of the transaction which the court
found to be fraudulent.” Id. As a result, the statute of limitations
could be calculated from the dates of those mailings, as opposed to
the date of the original “offer or sale of securities.” Id.
The Third Circuit adopted a similar interpretation of
Section 10(b)—the provision at issue here—in United States v.
Haddy, 134 F.3d 542, 548 (3d Cir. 1998). The indictment in Haddy
“describe[d] the manipulative implementation of a securities
trading scheme, the precise activity described in the statute and the
implementing rule as illegal.” Id. In that particular fraud, “the
device was a four-part scheme in which the buying and selling of
securities was a segment.” Id. Thus, the purchase or sale of a

security “was not the appropriate unit of prosecution”—those
events “were only a step in the advancement of the scheme as a
whole.” Id. at 549. Given the plain language of the statute and
Rule 10b-5, the Third Circuit concluded that the entire scheme to
defraud was a permissible unit of prosecution. The court
emphasized that it was “declin[ing] to dictate an inflexible rule

regarding the allowable unit of prosecution in a securities fraud
case.” Id. As the court explained, although “other violations of the
securities laws would lend themselves to a differently enumerated
36
(43 of 71)
indictment,” the offenses charged in that indictment “were schemes
designed to manipulate the prices of securities.” Id.
This is precisely the type of securities fraud alleged here. The
indictment outlines a scheme, practice, and course of business,
17 C.F.R. § 240.10b-5, through which Spanier fraudulently induced
borrowers to pledge stock in publicly traded securities. An integral
part of the scheme was Spanier’s repeated reassurances to
borrowers that “their stock would be held in safekeeping and not be
sold unless the borrower defaulted on the loan” and that Argyll
“would abide by all securities laws” while holding onto the stock.
ER 2060. The indictment alleged that the scheme continued “up to
at least March 14, 2012,” and expressly identified several specific
reassurances Spanier made through July and August 2011.

ER 2064-65. Those continuing reassurances, like the mailings in
Brown, brought the securities fraud count within the six-year
statute of limitations.
Spanier’s argument that “securities fraud is not a continuing
offense” (AOB 56) cannot be squared with the plain text of the
statute and Rule 10b-5 (neither of which Spanier addresses), or

with this Court’s decision in Brown. Indeed, Brown expressly
distinguished the securities fraud alleged in Carroll v. United
States, 326 F.2d 72 (9th Cir. 1963), the case on which Spanier relies.
37
(44 of 71)
AOB 57. In Carroll, the Court explained, the mailings in question
“did not go to the essence of the ‘offer or sale’ proscribed by the
Securities Act, and were only incidental to it.” Brown, 578 F.2d at
1285. Whereas in Carroll, “the fraud had essentially been
completed before the mailings … in question occurred,” in Brown,
as explained above, the mailings “were in furtherance of the
fraudulent scheme and a part of a continuing fraud” in that they
“the purpose of lulling the recipients of the mailings into a state of
passive inactivity, thus perpetuating the fraudulent scheme.” Id.
It is true that the Supreme Court in Toussie set out a

presumption against continuing offenses. AOB 57. But that
presumption can be overcome where, as here, “the language of the
statute compels such a conclusion or the nature of the crime

involved is such that Congress must assuredly have intended that
it be treated as a continuing one.” Id. (citation omitted). As both the
Third Circuit and this Court have recognized, some allegations of
securities fraud are complete for statute of limitations purposes
with a specific transaction. See Haddy, 134 F.3d at 548; Brown, 578
F.2d at 1286. But Rule 10b-5 expressly contemplates securities

fraud that is committed through a “scheme,” “practice,” or “course
of business.” 17 C.F.R. § 240.10b-5. Where, as here, that is the type
of fraud alleged, the statute of limitations does not begin to run
38
(45 of 71)
until that fraudulent “scheme,” “practice,” or “course of business”
runs its course.

C. The District Court Correctly Declined to Instruct the Jury on
a Pure Omissions Theory of Liability
In his prior appeal, Spanier argued that the government’s
mail and wire fraud charges depended on a “pure omissions” theory
of liability and that the jury should have been instructed
accordingly. He renews that argument here. AOB 19-28, 41-47
(Issue I). For the same reasons this Court rejected the argument in
Spanier’s last appeal, it should do so again here.

This Court reviews de novo whether jury instructions
misstated the law. United States v. Cherer, 513 F.3d 1150, 1154 (9th
Cir. 2008). The Court reviews “the formulation of instructions for
abuse of discretion, considering the instructions as a whole and in
context.” United States v. Woods, 335 F.3d 993, 997 (9th Cir. 2003).
2. As This Court Previously Held, the District Court

Properly Instructed the Jury on the Elements of Mail,
Wire, and Securities Fraud
a. Spanier’s First Appeal
Following Spanier’s 2013 conviction, he appealed to this
Court. He raised two issues. The first was the speedy trial issue
discussed above. The second was:
39
(46 of 71)
Whether the district court erred in instructing the jury

by … allowing an omissions theory of criminal fraud
without also requiring the jury to find a statutory duty
to disclose or a fiduciary or similar trust relationship[.]
Appellant’s Opening Brief, No. 14-50306, R 10-1 at 2. Spanier’s
argument relied on the well-established rule that “a defendant
cannot be guilty of criminal fraud based on an omissions theory if
he did not have a trust relationship with the alleged victim or a
fiduciary, statutory, or similar duty to disclose the facts omitted.”
Id. at 44; see, e.g., Eller v. EquiTrust Life Ins. Co., 778 F.3d 1089,
1092 (9th Cir. 2015). According to that rule, where the government
presents a theory based on a pure “failure to disclose,” the jury must
be instructed “on the government’s burden to prove a trust
relationship between Defendants and their clients.” United States

v. Laurienti, 611 F.3d 530, 543 (9th Cir. 2010).
The arguments raised in Spanier’s prior appeal are almost
identical to the arguments he presses here. Spanier argued that the

district court’s “failure to instruct on a trust relationship was error”
because “a non-disclosure can only serve as the basis for a
fraudulent scheme when there exists an independent duty that has
been breached by the person so charged.” Appellant’s Opening
Brief, No. 14-50306, R 10-1 at 45. He also argued that if the
government was proceeding on a “half-truth” theory, the jury
40
(47 of 71)
should have been provided specific “‘half-truth’ instructions, not
omission instructions.” Id. at 47.
The government responded that the case was “not based on a
‘pure omissions’ theory,” so “[t]he United States was not required to
prove the existence of a fiduciary duty.” Brief for Appellee United
States, No. 14-50306, R 17-1 (Jan. 20, 2015) at 46. As the
government explained, its fraud theory “was based upon
affirmative misrepresentations and half-truths made directly by
Spanier to the borrowers”—specifically, the “false representations
that Argyll had substantial cash,” “that the borrowers’ stock would
not be sold,” and that Spanier’s “fees on the transactions did not
exceed 5%.” Id. at 47-48. The government emphasized that
although the mail, wire, and securities fraud instructions contained

the word “omissions,” that language was “identical to Ninth Circuit
Model Instructions 8.121 (Mail Fraud), 8.124 (Wire Fraud) and 9.9
(Securities Fraud).” Id. The government argued that Spanier had
cited no case requiring a specific instruction “on a half-truth
theory,” and the district court’s reliance on the model instructions
was not in error. Id. at 50-51.

Both parties addressed the jury instruction issue at oral
argument before this Court. See Oral Arg., No. 14-50306 (Oct. 22,
2015). Indeed, in light of that discussion, one member of the panel
41
(48 of 71)
asked: “If we find that there was a violation of the Speedy Trial Act,
should we address the instruction problem to assist the court with
the retrial?” Id. (min. 20:25). The Court elected to provide that
assistance, issuing a decision that specifically “reject[ed] [Spanier’s]
challenge to the district court’s jury instructions.” Spanier, 637 F.
App’x at 1000-01. The Court held that “[t]he district court acted well
within its discretion in using the model jury instructions, and
Spanier has cited no persuasive authority holding otherwise.” Id.
(citing United States v. Stapleton, 293 F.3d 1111, 1119 (9th Cir.
2002), in which the instructions “substantially mirror[ed] the Ninth

Circuit Manual of Model Jury Instructions”).
b. The District Court Properly Relied on this Court’s
Opinion
At Spanier’s trial on remand, Spanier again requested that
the court instruct the jury on a pure omissions theory of liability.
ER 1243-44. In reliance on this Court’s decision, the district court
denied Spanier’s request. The court again instructed the jury
“based on the model jury instructions previously approved for this

case by the Ninth Circuit.” ER 8; see ER 148 (explaining that the
court “gave those instructions partly, if not wholly, on reliance upon
the fact that the Ninth Circuit” held “that this jury instruction is
appropriate to give under the circumstances”).
42
(49 of 71)
The district court’s reliance on this Court’s decision was
proper. “The law-of-the-case doctrine generally provides that when
a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.”
Musacchio v. United States, 136 S. Ct. 709, 716 (2016) (citation
omitted). The district court properly applied the law of the case
doctrine here because the jury instruction question was “decided
explicitly … in [this Court’s] previous disposition.” United States v.
Jingles, 702 F.3d 494, 499 (9th Cir. 2012) (citation omitted).
There is no merit to Spanier’s claim that “there was no

reasoned decision from this Court about the legality of the
challenged jury instructions.” AOB 46. Although the panel need not
have decided the issue, the panel considered and decided the issue
on the merits to guide the district court at a retrial. The ruling was
not dicta. See, e.g., Cole Energy Dev. Co. v. Ingersoll-Rand Co., 8
F.3d 607, 609 (7th Cir. 1993) (“[E]xplicit rulings on issues that were
before the higher court and explicit directives by that court to the
lower court concerning proceedings on remand are not dicta.”);
Harris v. Sentry Title Co., 806 F.2d 1278, 1280 n.1 (5th Cir. 1987)
(per curiam) (“[T]his Court often addresses issues for the guidance
of the parties and the district court on remand. It cannot be said
that such considered statements should be dismissed as dictum
43
(50 of 71)
simply because the Court was not absolutely required to raise and
address such an issue.”). The district court properly concluded that
it could (and should) rely on this Court’s decision to give the same
model instructions it gave in the prior trial.

c. United States v. Shields Does Not Warrant
Reconsideration of this Court’s Prior Ruling
Spanier attempts to avoid this Court’s prior ruling by
invoking United States v. Shields, 844 F.3d 819 (9th Cir. 2016), as
an “intervening change in the law” that warrants reconsideration

of the instruction question. AOB 41-42, 45-47. Shields has no
bearing on the jury instructions the district court gave here
because, as the district court held, “Shields is an omissions case

while [Spanier]’s is a half-truths case.” ER 4.
The defendants in Shields were charged with a wire fraud in
which they “solicited and obtained millions of dollars from
investors, allegedly to fund various real estate projects,” but failed
to invest the funds in those projects. 844 F.3d at 821-22. The jury
was instructed using the model instruction for wire fraud
(instruction 8.124), “which did not include a duty to disclose
instruction.” Id. at 822 n.1, 824. This Court held that because the
government alleged “an omissions theory of fraud,” the failure to

instruct the jury “on the need for a duty to disclose” was error. Id.
at 823. In reaching this conclusion, the Court cited to prior cases
44
(51 of 71)
holding that a nondisclosure can support a mail or securities fraud
charge “only where there exists an independent duty that has been
breached by the person so charged.” Id. at 822 (citation omitted).
Shields applied that rule for the first time “to wire fraud charges
when an omissions theory of fraud is alleged.” Id. at 823.
Importantly for present purposes, the Court only held that the
district court had erred because the government had presented a
fraud theory that would have allowed the jury to “conclude that a
material non-disclosure supports a wire fraud charge.” Id. In
particular, the government had focused on the defendants’ “non-

disclosure of [their] previous personal bankruptcies” to their
investors, and supported that theory by arguing in summation that
“the omission [of the bankruptcy] ‘standing by itself was an example

of fraud.’” Id. at 823-24.
Unlike in Shields, the United States never presented an
omissions theory of fraud in this case. Rather, the government’s
theory in the indictment and at trial was that Spanier defrauded
the victim borrowers through “false, fraudulent, and misleading
representations.” ER 2118. The indictment specifically alleged that

Spanier made the following misrepresentations: (1) that Argyll
“had substantial independent sources of cash to lend,” (2) that the
borrowers’ stock “would be held in safekeeping and not be sold
45
(52 of 71)
unless the borrower defaulted on the loan,” (3) that Argyll “would
abide by all securities laws,” and (4) that Spanier “was only
receiving as much as 5% in fees, when, in truth and fact, he was
receiving substantial incentive fees which exceeded 5%.” Id. The
government reiterated this theory at trial, arguing in closing that
Spanier “made false promises and material misrepresentations to
those borrowers.” ER 301.
It is true that one of these misrepresentations contained a
“half-truth”: Spanier disclosed to borrowers that he would receive
up to a 5% broker’s fee, when in fact he knew that he was also going

to receive an additional back-end fee from Argyll’s sale of the
borrowers’ stock. This type of “half-truth”—a “representation[] that
state[s] the truth only so far as it goes, while omitting critical

qualifying information”—can constitute an “actionable
misrepresentation[].” Universal Health Services, Inc. v. United
States, 136 S. Ct. 1989, 2000 & n.3 (2016). But this Court has long
recognized that “half-truths” are a distinct form of fraud from pure
omissions. See ER 6-7 (citing cases and explaining that “[d]eceitful
half-truths … since at least 1967 have been found by the Ninth

Circuit to violate the mail fraud statute”).10
10 Since the trial in this case, the Ninth Circuit has updated its
jury instructions for mail and wire fraud. Those instructions now
46
(53 of 71)
As the district court explained, “[a]n omissions case is where
the defendant does not speak about the fraud at all (he omits
everything).” ER 4. “In an omissions case a defendant may commit
fraud by mere silence, but only if an independent duty to speak
exists.” ER 4-5 (citing Shields). But in the case of a “half-truth,” “the
duty to disclose arises from the truth already half-spoken.” ER 5.
As this Court explained in Laurienti, “[t]he duty to disclose in these
circumstances arises from the telling of a half-truth, independent
of any responsibilities arising from a trust relationship.” 611 F.3d
at 538-41. As a result, when the government relies on a half-truth

theory, no fiduciary duty instruction is required. See, e.g., United
States v. Berghuis, No. 14-10527, 2017 WL 3912624, at *1 (9th Cir.
Sept. 7, 2017) (unpublished) (“[T]he government’s case was a half-

truths case, not an omissions case. Accordingly, the district court
did not commit plain error by not instructing the jury about
fiduciary duty.”); United States v. Lloyd, 807 F.3d 1128, 1152-53
(9th Cir. 2015) (defendant’s half-truths about commissions he was
provide an option to more explicitly instruct the jury that “[d]eceit-

ful statements of half-truths may constitute false or fraudulent rep-
resentations.” Ninth Cir. Model Instr. 8.121, 8.124. It also contains
a separate option to instruct the jury that “[t]o convict defendant[s]
of … fraud based on omission[s] of material fact[s], you must find
that defendant[s] had a duty to disclose the omitted fact[s] arising
out of a relationship of trust.” Id. (citing Shields).
47
(54 of 71)
to receive did not require fiduciary duty to support fraud liability);
United States v. Benny, 786 F.2d 1410, 1418 (9th Cir. 1986) (citing
“deceitful statements or half-truths” as an example of “an
affirmative, material misrepresentation [that] supports a
conviction of mail fraud without any additional proof of a fiduciary
duty”). Shields has no bearing on the correct jury instructions in a
case of affirmative misrepresentations and half-truths, as here.
Shields accordingly provides no basis to revisit this Court’s decision
from the first appeal.11
The evidence at this trial was substantially the same as the
evidence in the trial leading to Spanier’s first appeal. The charges,
the witnesses, and the documentary evidence were all the same. So
too was the government’s fraud theory. This Court approved the
11 Spanier also challenges the district court’s conclusion that

Spanier “was convicted of telling fraudulent half-truths.” AOB 43.
That is a factual question having nothing to do with Shields. It is
also a question that was fully litigated and decided in Spanier’s
prior appeal. See Brief for United States, No. 14-50306, R 17-1 at
47 (explaining that the government’s fraud theory “was based upon
affirmative misrepresentations and half-truths made directly by
Spanier to the borrowers”); Oral Arg., No. 14-50306 (min. 20:35).
This Court rejected that argument when it “reject[ed] [Spanier’s]
challenge to the district court’s jury instructions.” Spanier, 637 F.
App’x at 1000-01.
48
(55 of 71)
instructions used in that trial and Spanier has offered no reason to
depart from that holding here.
3. Any Error Was Harmless
Spanier points to a handful of times that a reference to
omissions was included in the indictment, at trial, and in the jury
instructions. AOB 19-20, 26-28. Spanier also highlights a line of
questioning of government witnesses regarding “things that
Spanier did not say and did not disclose to borrowers,” such as
problems previous clients had with Argyll and prior lawsuits that
had been filed against Argyll and Spanier. AOB 20-26. Spanier
posits from these references that “[o]missions were a key theme for
the government during the trial itself.” AOB 20. That assertion is
belied by the indictment, which alleged “false, fraudulent, and

misleading representations,” and not a single fraudulent omission,
ER 2118, as well as the government’s opening and closing
statements, which focused on Spanier’s misrepresentations and
half-truths, and not on any alleged omissions. As the government’s
closing argument illustrates, any references to prior clients’
lawsuits or problems with Argyll served to rebut Spanier’s central

defense at trial that he lacked knowledge that Argyll was selling
his clients’ stock. See, e.g., ER 308 (“The most important thing in
this case that tells you the defendant knew and was involved in the
49
(56 of 71)
scheme and conspiracy is the timeline.”); ER 311 (borrower’s
complaint that stock is being sold put Spanier “on notice and he
knows it”); ER 323 (“In May of 2010, Mr. Spanier got another
subpoena from the SEC. He is on notice.”). Those references were
never introduced as acts (or omissions) that formed the basis for the
fraud counts and were never presented to the jury as such.
But even if this Court could conclude that there was error in
the jury instructions, any error was harmless beyond a reasonable
doubt. Neder v. United States, 527 U.S. 1, 9 (1999). The government
consistently and repeatedly highlighted for the jury the series of

misrepresentations alleged in the indictment: (1) that Argyll “had
substantial independent sources of cash to lend,” (2) that the
borrowers’ stock “would be held in safekeeping and not be sold

unless the borrower defaulted on the loan,” (3) that Argyll “would
abide by all securities laws,” and (4) that Spanier “was only
receiving as much as 5% in fees, when, in truth and fact, he was
receiving substantial incentive fees which exceeded 5%.” ER 2118.
There was substantial evidence to support a conviction based on
these misrepresentations for each wire, mail, and securities fraud

count. See, e.g., Shields, 844 F.3d at 824 (instruction error “most
likely did not affect the outcome of the proceedings because other
50
(57 of 71)
affirmative acts also support the convictions”). Any error in the jury
instructions on those counts was harmless.

D. The District Court Properly Refused to Give a Withdrawal or
a Multiple-Conspiracies Instruction
Spanier challenges the district court’s conspiracy
instructions. AOB 60-68 (Issue II(F), III). His arguments are
reviewed for abuse of discretion. United States v. Perdomo-Espana,
522 F.3d 983, 986 (9th Cir. 2008).

2. No Withdrawal Instruction Was Required
Spanier argues that the district court erred in declining to
give a withdrawal instruction. AOB 60-64. To be entitled to a
withdrawal instruction, the defendant must introduce evidence to
show that he “either disavow[ed] the unlawful goal of the
conspiracy, affirmatively act[ed] to defeat the purpose of the
conspiracy, or [took] definite, decisive, and positive steps to show
that the defendant’s disassociation from the conspiracy is
sufficient.” United States v. Lothian, 976 F.2d 1257, 1261 (9th Cir.
1992) (citation and alterations omitted). Spanier did not provide a
sufficient evidentiary basis for a withdrawal instruction.
At the close of trial, Spanier requested the model Ninth
Circuit withdrawal instruction. He argued that he had made “a
prima facie showing … that even if there was a conspiracy, … that
51
(58 of 71)
Mr. Spanier withdrew from it.” ER 681. Spanier argued that
evidence had been introduced at trial that showed that “by June of
2011, Mr. Spanier told [RS],” one of the borrowers with whom he
was negotiating a loan agreement, “we’re not going through with
this deal no matter what.” Id. The prosecutor responded that there
was no “evidence of communication between Mr. Spanier and his
co-conspirators of withdrawal. The fact that he may have said
something to [RS], who is not a member of the conspiracy, does not
indicate in any way a withdrawal.” ER 62. The district court agreed.
The court explained that “the law requires some evidence of an

affirmative … action sufficient to show withdrawal as a matter of
law,” and in this case there was no “factual basis for a
withdrawal … defense.” ER 63.12

On appeal, Spanier argues that the evidence regarding his
conversations with RS in June 2011 was sufficient to support a
withdrawal instruction, and that withdrawal would have provided

him a “complete defense” to the conspiracy charge. AOB 64. The
district court correctly concluded that there was no “foundation in
the evidence” for a withdrawal defense. Lothian, 976 F.2d at 1267.
12 This holding readily dispels Spanier’s claim that the court re-
lied on an incorrect legal standard. AOB 63; see Lothian, 976 F.2d
at 1267.
52
(59 of 71)
The testimony regarding Spanier’s conversations with RS did
not provide any evidence of withdrawal. RS testified that he “did a
series of loans, five in total, but the fifth one not being completed.”
ER 1024. He explained that he and Spanier had started discussing
the last loan in January 2011. ER 1029-30. They signed the loan
documents and RS transferred his shares, but the transaction “was
not completed.” ER 1058. RS explained that he and Spanier had
been waiting to “price the loan” when RS “got a call from the FBI”
in April 2011. ER 1059. The FBI informed RS that it was
“investigating Argyll.” Id. RS contacted Spanier, who told him “he

had one other client that had also been contacted, and he’s looking
into the matter.” ER 1060. Spanier also relayed that he had been in
touch with Argyll “and they said they did nothing wrong.” Id.
RS testified that he exchanged a series of emails with Spanier
from May through August 2011. Spanier reassured RS that
“everything is fine, everything is going to get sorted out. That is
what Argyll is telling him.” ER 1062. At first Spanier encouraged
RS to go through with the loan because “Argyll is still good,
everything is fine.” ER 1066. By June 2011, however, RS “decided

not to go through with it” because “at this point, there [were] too
many red flags with Argyll and the investigation.” ER 1070. RS and
Spanier “both decided it was not wise to proceed” with the fifth loan.
53
(60 of 71)
Id. Spanier then purportedly began helping RS to get his stock back
from Argyll. ER 1070-72. But Spanier also reassured RS that
Argyll is “a legitimate business and everything is good.” ER 1072.
Spanier confirmed in his own testimony that he had advised
RS not to go through with the loan. ER 548. But Spanier did not
testify that he communicated that conclusion or any desire to
withdraw from the conspiracy with any other co-conspirator. In
fact, Spanier testified that he suggested that RS contact the Argyll
co-conspirators himself because “by the time June [2011] came
around, [Spanier] had been instructed by counsel not to talk to

Argyll.” ER 612. Spanier also testified, however, that after June, he
“tried them quite often,” but was not “very successful” in reaching
them. ER 613. This was despite evidence revealing hundreds of

calls between Spanier and the Argyll co-conspirators during that
time period. ER 613-14.
None of this testimony provides evidence that in 2011 (or at
any other time13) Spanier engaged in any affirmative act
13 Spanier argues that “[t]here was additional evidence that

Spanier had withdrawn from any conspiracy involving Argyll in
2007, when he left to join a different lender.” AOB 62. As is ex-
plained below, Spanier’s actions with the other lender were a part
of the same conspiracy scheme. But in any event, there was no evi-
dence that Spanier affirmatively disassociated himself from the Ar-
gyll co-conspirators or the goal of the conspiracy during that time.
Moreover, the “evidence that [Spanier] later rejoined the [Argyll co-
54
(61 of 71)
“inconsistent with the object of the conspiracy” or that he
“communicated [those acts] in a manner reasonably calculated to
reach co-conspirators.” United States v. U.S. Gypsum Co., 438 U.S.
422, 464-65 (1978); accord Ninth Cir. Model Instr. 8.124 (“One may
withdraw by doing acts which are inconsistent with the purpose of
the conspiracy and by making reasonable efforts to tell the co-
conspirators about those acts.”). Rather, Spanier at most introduced
evidence of “[a] mere cessation of activity in the conspiracy,” which
is “not sufficient to establish withdrawal.” United States v.
Finestone, 816 F.2d 583, 589 (11th Cir. 1987).

3. No Multiple-Conspiracies Instruction Was Required
Spanier also claims error in the district court’s refusal to give
a multiple-conspiracies instruction. AOB 64-67. Spanier points to

evidence regarding a period beginning in 2007 when he induced
borrowers to pledge stock in a similar fashion to a company owned
by Manny Bello.14 Spanier argues that because this arrangement

with Bello “was separate from his dealings with Argyll,” there was
sufficient evidence to indicate that this was a separate conspiracy
conspirators]… indicates a continued acquiescence in the goals of

the conspiracy.” Lothian, 976 F.2d at 1264.
14 The Bello entity first operated as “Ayuda Funding” and later
as “Amerifund Capital Holdings” (to more closely link the company
with Spanier’s company, also named Amerifund). ER 522, 538.
55
(62 of 71)
altogether. AOB 67; see ER 67 (“I think it is a jury question whether
Manny Bello and Ayuda is a different deal or not.”).
A multiple-conspiracies instruction is generally required
where “the proof at trial indicates that a jury could reasonably
conclude that some of the defendants were only involved in separate
conspiracies unrelated to the overall conspiracy charged in the
indictment.” United States v. Anguiano, 873 F.2d 1314, 1317 (9th
Cir. 1989). To be entitled to a multiple-conspiracies instruction, the
defendant’s theory of multiple conspiracies must have “some
foundation in the evidence.” Id. Spanier’s multiple-conspiracies

theory did not meet that standard.
As Spanier acknowledges (AOB 66), between 2003 and 2012,
he used at least four entities to carry out his fraudulent scheme.

The indictment confirms as much, alleging a single conspiracy
through which Spanier fraudulently induced borrowers to pledge
stock to “ARGYLL, and other lenders.” ER 2060. The evidence
presented to the jury at trial was consistent with the indictment.
The government introduced evidence that Spanier used the Bello
entity to carry out the objects of the larger conspiracy. See, e.g.,
ER 304 (“Now he uses Argyll, his partners, Mr. McClain and Mr.
Miceli, and he even, at one point, brought Ayuda in as well, Manny
Bello.”). There was evidence linking Bello to Argyll, including the
56
(63 of 71)
fact that Bello was once a broker for Argyll’s stock loans. ER 1137-
38. And throughout the period in which Spanier was using Bello as
his stock lender, both maintained a business relationship with the
Argyll co-conspirators—Spanier, as he was forced to
“deflect[]”complaints from Argyll borrowers whose stock was not
being returned, ER 316-18, 774-75, 1923-29, and Bello, who both
loaned and borrowed money from the Argyll co-conspirators “to
fund a few stock loans,” ER 1178, 1196-97, 1205-09.
There was no evidence or plausible argument that Spanier
was involved only in a conspiracy with Manny Bello. At most, the

evidence suggested that Spanier fraudulently induced clients to
pledge their stock to Bello for some period of time between 2007 and
2009, and then returned to executing loans with Argyll. ER 317-18,

522, 583-84, 795, 1016, 1025. The fact that Spanier used more than
one lender to carry out the objects of his conspiracy does not mean
that there were two separate conspiracies. As this Court has
recognized, “[a]lthough a single conspiracy can include ‘several
subagreements or subgroups of conspirators,’ that does not mean
there are separate conspiracies.” United States v. Job, 871 F.3d

852, 868 (9th Cir. 2017). If anything, it indicated that Spanier
played a greater role in the conspiracy by using more than one
entity to execute his fraud. No jury could reasonably conclude that
57
(64 of 71)
Spanier’s arrangement with Manny Bello was a “separate
conspirac[y] unrelated to the overall conspiracy charged in the
indictment.” Id. at 867.
In any event, even if the court did err in failing to give a
multiple-conspiracies instruction, any error was harmless beyond a
reasonable doubt. Neder, 527 U.S. at 9, 15. The evidence
overwhelmingly proved that Spanier committed the conspiracy
charged in the indictment—an overarching conspiracy that lasted
beyond 2009, when Bello stopped doing stock loans and Spanier
returned to Argyll. ER 539-41, 584, 1176-77. Indeed, in order to

convict Spanier of the conspiracy charge, the jury was required to
expressly find that the conspiracy lasted through at least July 1,
2011. ER 21. The evidence at trial and the jury’s guilty verdict on
the conspiracy count make clear that any error in failing to give a
multiple-conspiracies instruction had no effect on the jury’s verdict.

E. The District Court Did Not Err in Prohibiting the Jury From
Discussing the Verdict
1. Background
Following the verdict, the district court explained that the
jury was “no longer bound by” an earlier admonition not to discuss
the case. ER 48. But the court instructed the jury “not to discuss
anything that went on in that jury deliberation room with anyone.”
ER 49. The court advised that if the lawyers contacted the jury to
58
(65 of 71)
speak with them about the case, the court “would urge you to
discuss their presentation of the case but not to discuss the evidence
or … discuss what was discussed in the jury deliberation room.” Id.
After the jury was excused, defense counsel objected that the court’s
“instruction to the jurors about whether they choose to
communicate with counsel or not” did not comply with the
governing law. ER 58. Defense counsel acknowledged the “rule of
evidence about impeaching the verdict and such,” but objected to
the court’s instruction that the jury “not … share any of the
deliberations with us.” ER 58-59. Counsel asked the court to “cure”

the error “by letting those jurors know, or the court staff letting the
jurors know that, in fact, they can share with us what happened in
deliberations if they choose to.” ER 59. The court did not act on the
objection.
Spanier’s argument that the district court committed
constitutional error when it “forbid jurors, in perpetuity, from
discussing deliberations after the verdict,” AOB 74 (Issue V), is
reviewed de novo. United States v. Waters, 627 F.3d 345, 359 (9th
Cir. 2010).15
15 Spanier claims that the district court’s instruction was “struc-

tural error.” AOB 74. But the post-trial instruction he cites as error
59
(66 of 71)
3. The District Court’s Admonition Was Sound
Under Ninth Circuit law, “it is improper and unethical for
lawyers to interview jurors to discover what was the course of
deliberation of a trial jury.” People of Territory of Guam v. Marquez,
963 F.2d 1311, 1315 (9th Cir. 1992) (citation omitted). This
prohibition is consistent with the “established law” that “[j]urors
may not impeach their own verdict,” United States v. Weiner, 578
F.2d 757, 764 (9th Cir. 1978), and is codified in Federal Rule of
Evidence 606(b), which bars jurors from testifying about “any
statement made or incident that occurred during the jury’s

deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the verdict
or indictment.” Fed. R. Evid. 606(b)(1).

The district court’s post-trial instruction did nothing more
than advise the jury of this well-established limitation. The court
did not prohibit all post-trial contact with the jury as in United
had no impact on the “basic, constitutional guarantees that … de-

fine[d] the framework of [his] criminal trial.” Weaver v. Massachu-
setts, 137 S. Ct. 1899, 1908 (2017). Spanier’s claim of structural
error is further undermined by the fact that he argues that the
court’s instruction “prejudiced” him—a showing that is not required
for true “structural” errors because such errors are not amenable to
harmless-error analysis. See id. (“[A]n error has been deemed struc-
tural if the effects of the error are simply too hard to measure.”);
Neder, 527 U.S. at 9 (recognizing that “most constitutional errors
can be harmless”).
60
(67 of 71)
States v. Sherman, 581 F.2d 1358 (9th Cir. 1978) (cited AOB 74-75).
In Sherman, the district court “ordered everyone, including the
news media, to stay away from the jurors.” Id. at 1360. The Court
held that this order was “clearly erroneous as a matter of law”
because it “clearly restrained the media in their attempts to gather
news.” Id. at 1361. The district court’s instructions here did not
forbid jurors from speaking with the media. It did not implicate the
“general public’s right to receive information about judicial
proceedings” or any First Amendment interest at all. Id.
Nor is there any merit to Spanier’s claim that the court’s

instruction “violated Spanier’s Fifth and Sixth Amendment rights
to explore legitimate bases to challenge his verdict” under the
exceptions to Rule 606(b). AOB 75; see Fed. R. Evid. 606(b)(A)-(C);

see also Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017)
(permitting inquiry into whether a juror “relied on racial
stereotypes or animus to convict a criminal defendant”). The court’s
instruction did not prohibit jurors from discussing whether the
verdict was affected by any of these external influences. Rather, it
simply recognized that the jury “may not be questioned about [its]
deliberative process.” United States v. Bagnariol, 665 F.2d 877, 884-
85 (9th Cir. 1981).
61
(68 of 71)
Moreover, even if the court’s instruction could be read to
impose too broad a prohibition on the jury’s post-trial contact with
the attorneys, Spanier’s claim of prejudice (AOB 76-77) is entirely
speculative. Spanier has not pointed to any supposed instance of
juror misconduct that he has been prevented from exploring as a
result of the court’s instruction. Nor has he claimed that any juror
has refused to speak with him because of the instruction. If that
were to occur, Spanier could seek clarification (and appellate
review) of any actual restrictions the district court imposed. See,
e.g., United States v. Antar, 38 F.3d 1348, 1363-64 (3d Cir. 1994)
(vacating “restrictions imposed by the district court on the conduct
of juror interviews”). But Spanier’s claim that his entire conviction
should be reversed because of some hypothetical confusion

regarding the court’s post-trial instruction, without any showing
that such confusion has actually resulted, is speculative at best.
62
(69 of 71)
CONCLUSION
Spanier’s convictions should be affirmed.
Respectfully submitted,
ADAM L. BRAVERMAN
United States Attorney
HELEN H. HONG
Chief, Appellate Section
Criminal Division
S/NICOLE RIES FOX
DECEMBER 11, 2017.
63
(70 of 71)
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of

Fed. R. App. P. 32(a)(7)(B) because it contains 13,564 words, exclud-
ing the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of
Fed. R. App. 32(a)(5) and the type style requirements of Fed. R.
App. P. 32(a)(6) because it has been prepared in a proportionally
spaced typeface, 14-point Century Schoolbook, using Microsoft
Word 2016.
STATEMENT OF RELATED CASES
The United States is unaware of any related cases.
S/NICOLE RIES FOX

DECEMBER 11, 2017.

(71 of 71)
9th Circuit Case Number(s) 17-50128
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Case: 17-50128, 12/11/2017, ID: 10686665, DktEntry: 29-1, Page 1 of 70

United States Court of Appeals

UNITED STATES OF AMERICA,

On Appeal From the United States District Court

ANSWERING BRIEF FOR THE UNITED STATES

Jurisdiction and Bail Status 1

c. United States v. Shields Does Not Warrant Recon-

Carroll v. United States, 326 F.2d 72 (9th Cir. 1963) 37, 38

United States v. Alvarez-Perez,

United States v. Leo Sure Chief,

United States v. Waters, 627 F.3d 345 (9th Cir. 2010) 59

Constitution and Statutes:

Fed. R. App. P. 4(b)(1)(A)(i) 1

17 C.F.R. § 240.10b-5 34, 37, 38

9th Cir. Model Instr. 8.121 47

United States Court of Appeals

UNITED STATES OF AMERICA,

On Appeal From the United States District Court

JURISDICTION AND BAIL STATUS

The district court had jurisdiction under 18 U.S.C. § 3231, as

Spanier was charged with offenses against the United States.

entered judgment sentencing Spanier to 96 months in custody and

$20,669,379.98 in restitution. ER 110-14. Spanier timely filed his

ER 123. This Court has jurisdiction under 28 U.SC. § 1291. Spanier

is in custody until March 2024.

Spanier has twice been convicted of conspiracy, mail fraud,

wire fraud, and securities fraud as a result of a scheme in which he

and his co-conspirators defrauded victims of over $100 million

resulted in a mistrial, Spanier was convicted on a superseding

indictment (the “2013 Indictment”). On appeal, this Court reversed

the convictions on Speedy Trial Act grounds. The Court remanded

to the district court to determine whether the dismissal of the 2013

Indictment should be with or without prejudice. The district court

dismissed the indictment without prejudice.

Shortly after the district court’s order, the government

obtained a new 19-count indictment (the “July 2016 Indictment”).

2-18) as barred by the five-year statute of limitations. The district

court granted the motion and the government obtained a

trial, the district court reconsidered its ruling and reinstated

Counts 2-18 for trial. Spanier was convicted on all counts.

The questions presented are:

1. Did the district court abuse its discretion in dismissing

the 2013 Indictment without prejudice? (Appellant’s Opening Brief

2. Were the 19 counts in the July 2016 Indictment

returned within the applicable statutes of limitations? (AOB Issue

3. Did the district court abuse its discretion in declining to

instruct the jury on a “pure omissions” theory of fraud liability?

(AOB Issue No. I)

4. Did the district court abuse its discretion in declining to

give a withdrawal or a multiple-conspiracies jury instruction? (AOB

Issue Nos. II(F) and III)

5. Did the district court err by instructing the jury

their deliberations with the attorneys? (AOB Issue No. V)

1. Spanier’s Fraud Conspiracy

Spanier was indicted for participating in a conspiracy in

which he fraudulently induced borrowers to pledge large amounts

he served as a loan broker, soliciting entrepreneurs or businessmen

who owned publicly traded shares of stock in the companies they

owned or ran. ER 703-04, 1383-85 1550-51, 1607-08, 1749-51, 1900-

03. For various reasons, these executives found themselves in need

meaning they were prohibited from selling without reporting the

sale to the SEC. ER 971-72, 1385, 1416-17, 1464-65. Others

understood that, as corporate insiders, stockholders might “think