United States v. Tamman

The dual application of the Broker-Dealer enhancement and the Special Skill enhancement does not amount to double counting at sentencing when the enhancements reflect separate and distinct behavior of the principal defendant from the defendant-accessory.

David Tamman, a licensed California attorney, began working for NewPoint Financial Services (“NewPoint”) in 2003. NewPoint was owned by John Farahi, who made private offerings of debentures in order to raise money for the company. The debenture offerings were not registered with the SEC, but attempts to appear as though the company was complying with federal regulation standards were made, including hiring Tamman to prepare private placement memoranda for the debentures. However, NewPoint continually failed to disclose certain material in violation of security laws. Farahi raised over $30 million using these debentures but failed to tell investors that he was using the money for personal expenses. Eventually, the SEC investigated NewPoint upon receiving a tip that NewPoint was running a Ponzi scheme. Tamman was charged with several counts, including “accessory after the fact to Farahi’s crimes of mail fraud and unregulated offer and sale of securities.” Tamman waived his right to a jury trial and was found guilty. Tamman appealed, arguing that the district court erred at sentencing, along with evidentiary issues and an unconstitutional jury waiver. The Ninth Circuit found that Tamman’s sentence was enhanced properly due to his conduct as a defendant-accessory. The dual application of the Broker-Dealer enhancement and the Special Skill enhancement does not amount to double counting at sentencing when the enhancements reflect separate and distinct behavior of the principal defendant from the defendant-accessory. The panel held that the application of both enhancements was not double counting because “it reflect[ed] different conduct by two different parties.” Additionally, the panel found that Tamman’s jury waiver was “knowing and intelligent” because he was a licensed attorney. Thus, the panel found that the district court did not err in its judgment and sentence. AFFIRMED.