NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50247

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-01842-DMS-1
 v.

PAUL RAMPOLDI,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                    Dana M. Sabraw, District Judge, Presiding

                            Submitted October 7, 2020**
                               Pasadena, California

Before: KLEINFELD, HURWITZ, and BRESS, Circuit Judges.

      Paul Rampoldi was convicted after a jury trial of conspiracy to engage in

insider trading, wire fraud, and money laundering. The district court sentenced him

to eighteen months in prison. Rampoldi appeals his conviction and sentence; we

affirm.


      *
             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).
      1.    No fatal variance was caused by Chad Weigand’s testimony that

Rampoldi may have received inside information in a manner different than alleged

in the indictment. The evidence at trial, which included Rampoldi’s statements to

the FBI, was sufficient to prove the allegations in the indictment about how the

information was obtained. See United States v. Universal Trade & Indus., Inc., 

, 1153-54 (9th Cir. 1983); United States v. Kenny, 

, 1336-

37 (9th Cir. 1981). And, any surprise from Weigand’s testimony was immaterial.

See United States v. Bhagat, 

, 1146-47 (9th Cir. 2006).

      2.    The government’s alleged failure to correct Weigand’s testimony did

not violate Napue v. Illinois, 

(1959). A Napue violation requires

proving that (1) the testimony was actually false, (2) the government knew or should

have known it was false, and (3) the testimony was material. United States v. Renzi,

, 751 (9th Cir. 2014). Rampoldi failed to show the witness’s testimony

was false, as opposed to merely inconsistent, and the witness attempted to explain

the apparent inconsistencies. See

Rampoldi “at most point[s] to evidence

creating an inference of falsity,” United States v. Houston, 

, 814 (9th

Cir. 2011), which is not sufficient. Moreover, defense counsel extensively and

effectively cross-examined Weigand about the alleged inconsistencies. See 

.

      3.      During deliberations, the jury asked whether there was a clear end date



                                         2
to the conspiracy, which was charged as ending “on or about” a given date. The

court responded by reading the pattern jury instruction defining that phrase. That

response was not an abuse of discretion. See Arizona v. Johnson, 

, 993

(9th Cir. 2003) (standard of review). The instruction did not expand the temporal

scope of the charged conspiracy, and because it merely clarified an existing theory

of liability, no supplemental argument was required. See United States v. Fontenot,

, 1368 (9th Cir. 1994).

      4.    Rampoldi was not denied due process at sentencing. The government

did not take “fundamentally inconsistent theories” in bad faith. Nguyen v. Lindsey,

, 1240 (9th Cir. 2000). Rather, the government advocated for a lower

loss amount for a co-conspirator because it was required by his plea agreement,

while informing the district court that in fact both co-conspirators had caused the

same loss. Judicial estoppel is not warranted, as the court was not misled by any

statement by the government. See New Hampshire v. Maine, 

, 750-51

(2001).

      AFFIRMED.




                                        3