United States of America v. IRINA TOPILINA, AKA Irina Topilina Pinchuk

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IRINA TOPILINA, AKA Irina Topilina
Pinchuk,
Defendant-Appellant.
No. 16-50017
D.C. No.
2:10-cr-01115-MMM-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted February 13, 2018**
Pasadena, California
Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,*** District
Judge.
FILED
FEB 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable John A. Woodcock, Jr., United States District Judge
for the district of Maine, sitting by designation.

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Irina Topilina appeals the district court’s order of restitution for $566,047.11
to the estate of C.M. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The sole issue before us is whether the district court abused its discretion in
determining that Topilina’s uncharged fraudulent offenses against C.M. were
“relevant conduct”—as defined under U.S.S.G. § 1B1.3—to her bankruptcy-fraud
conviction. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170, 1174 (9th Cir.
2017) (en banc), cert. denied, 138 S. Ct. 229 (2017). As pertinent to this appeal,
relevant conduct is defined as “all acts and omissions” by the defendant that (1)
“would require grouping” with the defendant’s offense of conviction under
U.S.S.G. § 3D1.2(d) and (2) “were part of the same course of conduct or common
scheme or plan as the offense of conviction . . . .” U.S. Sentencing Guidelines
Manual § 1B1.3(a)(2) (U.S. Sentencing Comm’n 2016).
1. In determining the offense level of a defendant convicted of multiple counts,
the Sentencing Guidelines instruct courts to group “[a]ll counts involving
substantially the same harm . . . together into a single Group.” U.S.S.G. § 3D1.2.
For instance, in United States v. Brown, we determined that the district court
properly grouped the defendant’s bankruptcy-fraud conviction with fraud
convictions stemming from a Ponzi scheme because the bankruptcy offense
resulted from his efforts to conceal the Ponzi scheme’s illicit proceeds. 771 F.3d
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1149, 1158 (9th Cir. 2014). The district court below similarly concluded that
Topilina “concealed assets in the bankruptcy proceeding so that her fraudulent
acquisition of assets from C.M. would not come to light.” This finding of fact was
not clearly erroneous. See United States v. Bussell, 504 F.3d 956, 962 (9th Cir.
2007).
Moreover, even assuming that Topilina’s fraud against C.M. could not have
been charged as a federal offense, our case law forecloses her contention that
§ 3D1.2(d) does not allow grouping with state-law crimes. United States v.
Newbert, 952 F.2d 281, 284 (9th Cir. 1991). Accordingly, the district court did not
abuse its discretion in determining that Topilina’s bankruptcy-fraud conviction
could be grouped with her uncharged fraud offenses.
2. “For two or more offenses to constitute part of a common scheme or plan,
they must be substantially connected to each other by at least one common factor,
such as common victims, common accomplices, common purpose, or similar
modus operandi.” U.S.S.G. § 1B1.3 cmt. n.5(B)(i) (emphasis added). Here, the
district court concluded that Topilina’s fraudulent acts shared a common purpose
because she defrauded C.M. to obtain the assets and then fraudulently concealed
those very same assets during bankruptcy in order to retain them. Topilina
counters that her fraudulent acts had different victims—C.M. versus the
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bankruptcy estate and creditors—and had different modi operandi. But common
victims and a common M.O. are merely examples of common factors that connect
two or more offenses in a common plan or scheme—not required elements.
There is also no merit to Topilina’s contention that her fraudulent acts were
unconnected because she could have filed for bankruptcy before she defrauded
C.M. This argument once again merely challenges the district court’s finding that
she committed bankruptcy fraud in order to conceal her fraud against C.M. and is
thus equally unavailing. See, e.g., United States v. Duran, 15 F.3d 131, 134 (9th
Cir. 1994). And even if concealing the assets’ fraudulent provenance was not
Topilina’s primary motivation in committing bankruptcy fraud, she did not
disclose the assets because she sought to retain them after her bankruptcy. The
underlying goal for her charged and uncharged fraudulent acts was to have and
enjoy valuable assets that did not belong to her. The district court therefore did not
abuse its discretion in concluding that these offenses were part of a common
scheme or plan or in ultimately holding that these fraudulent acts were related
conduct.
Accordingly, the district court is AFFIRMED.
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