## Facts

- David Tamman, a California attorney, performed legal work for NewPoint Financial Services, Inc., owned by John Farahi.
- Farahi raised investor money through private debenture offerings that were not registered with the SEC and that omitted material information and risks.
- As regulatory scrutiny increased, Tamman engaged in conduct intended to hinder investigations into Farahi’s fraud, including altering and creating backdated documents to make NewPoint appear compliant.
- Tamman was charged with conspiracy to obstruct justice, accessory after the fact to mail fraud and securities law violations, multiple counts of altering documents to influence a federal investigation, and aiding and abetting false testimony at an SEC deposition.
- Tamman waived a jury and proceeded to a bench trial; the district court found him guilty on all counts and imposed an 84-month prison sentence.

## Issues

1. Whether the Sentencing Guidelines prohibit applying both the broker-dealer enhancement (U.S.S.G. § 2B1.1(b)(18)(A) (2012)) and the special skill enhancement (U.S.S.G. § 3B1.3) when the former is tied to a principal’s securities offense and the latter to an accessory’s use of legal skills in obstruction.
2. Whether, for Guidelines purposes, an accessory after the fact may be held responsible for the full loss amount (over $20 million) and more than 50 victims arising from a co-defendant’s underlying fraud based on reasonable foreseeability.
3. Whether Tamman’s jury-trial waiver was competent, knowing, voluntary, and intelligent.
4. Whether the district court plainly erred by excluding (a) a non-lawyer witness offering the opinion that Tamman “did not break the law,” and (b) an expert on Tamman’s professional and ethical duties as an attorney.
5. Whether the district court erred in admitting an alleged coconspirator’s statement as non-hearsay.

## Decision

- The Ninth Circuit affirmed Tamman’s convictions and 84-month sentence.
- The court held the Guidelines commentary barring concurrent application of the broker-dealer and special skill enhancements did not apply because the enhancements addressed different conduct by different actors (principal vs. accessory).
- The court upheld the district court’s loss and victim findings, concluding the full loss and victims from the co-defendant’s fraud were reasonably foreseeable to Tamman despite his accessory status.
- The court found Tamman competent and his jury-trial waiver knowing and intelligent.
- The court found no plain error in excluding the defense experts, including testimony amounting to legal conclusions and testimony deemed unnecessary for the bench trial.
- The court found no reversible error in admitting the coconspirator statement as non-hearsay.

## Legal Principles

- A Guidelines commentary limitation on applying a special skill enhancement alongside a specific offense characteristic does not bar both enhancements where the specific offense characteristic pertains to a principal’s offense conduct and the special skill enhancement pertains to the accessory’s distinct offense conduct.
- For Guidelines loss and victim calculations, an accessory after the fact may be held accountable for the reasonably foreseeable loss and victims attributable to the underlying offense, even without actual knowledge of each victim.
- A jury-trial waiver is valid when the defendant is competent and the record shows an understanding of the right relinquished and the consequences of choosing a bench trial.
- Expert testimony that offers legal conclusions or does not assist the trier of fact may be excluded; in a bench trial, courts have discretion to exclude expert testimony on legal/ethical duties the court can assess without expert aid.
- Statements satisfying the requirements for admission as coconspirator statements (or otherwise falling outside hearsay) may be admitted without violating the hearsay rules.

## Conclusion

The Ninth Circuit affirmed Tamman’s obstruction-related convictions and sentence, holding that dual broker-dealer and special skill enhancements were permissible on these facts, that full loss and victim impacts from the underlying fraud were reasonably foreseeable to an accessory after the fact, and that the challenged trial-management rulings (jury-waiver, expert exclusions, and statement admission) did not warrant reversal.


United States v. Tamman, 782 F.3d 543 (9th Cir. 2015)