United States v. Shelley Dunkel , 550 F. App'x 511 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30052
Plaintiff - Appellee, D.C. No. 2:12-cr-00012-EJL-2
v.
MEMORANDUM*
SHELLEY LYNN DUNKEL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted December 6, 2013**
Seattle, Washington
Before: HAWKINS and TALLMAN, Circuit Judges, and WHYTE, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Pursuant to Fed. R. App. P. 34(a)(2)(c), the panel unanimously found this
matter appropriate for submission without oral argument.
***
The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
Defendant-Appellant Shelley Dunkel appeals her conviction of mail and
wire fraud. We have jurisdiction pursuant to 28 U.S.C. § 1291. Dunkel raises
three issues on appeal. First, she asserts there was insufficient evidence to support
her conviction. Second, she argues that there was insufficient evidence to find the
illegal actions of her co-defendant Michael Persky were reasonably foreseeable to
her. Third, she argues that the district court abused its discretion by refusing to
sever her trial from Persky’s trial.
Taking all of the evidence in the light most favorable to the prosecution, a
reasonable jury could have found that Dunkel aided and abetted Persky’s mail and
wire fraud. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). For example, a
jury could reasonably have inferred from the facts that Dunkel assisted Persky by
corroborating his story to the insurance agent of the theft of the Winnebago and by
assisting Persky in substantiating his insurance claim.
Applying the same standard, a jury could also have found that Dunkel could
have reasonably foreseen Persky’s illegal actions. Not only that, the jury could
reasonably have found that she knowingly participated in the illegal scheme.
Finally, the district court did not abuse its discretion by denying Dunkel’s
motion to sever her trial from Persky’s trial. See United States v. Hsieh Hui Mei
Chen, 754 F.2d 817, 823 (9th Cir. 1985). The district judge clearly instructed the
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jury that it must give separate consideration to each defendant and that its finding
as to one defendant should not control its verdict as to the other. Dunkel failed to
show that joinder was so prejudicial that it compelled the district court to exercise
its discretion to sever. See United States v. Armstrong, 621 F.2d 951, 954 (9th Cir.
1980).
AFFIRMED.
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