United States v. Kelly Nunes Jeannie Sutherland , 560 F. App'x 676 ( 2014 )

Menu:

                           NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS                            FILED
FOR THE NINTH CIRCUIT                             MAR 04 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 12-10411
Plaintiff - Appellee,              D.C. No. 2:10-cr-00356-LDG-
VCF-4
v.
KELLY NUNES,                                     MEMORANDUM*
Defendant - Appellant.
UNITED STATES OF AMERICA,                        No. 12-10481
Plaintiff - Appellee,              D.C. No. 2:10-cr-00356-LDG-
VCF-1
v.
JEANNIE SUTHERLAND,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding
Argued and Submitted February 12, 2014
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT and THOMAS, Circuit Judges, and SESSIONS, District
Judge.**
Kelly Nunes and Jeannie Sutherland appeal from a judgment of conviction
after a jury found both guilty of one count of conspiracy to commit wire fraud,
mail fraud, and bank fraud, in violation of

18 U.S.C. § 1349

, and one count of bank
fraud, in violation of

18 U.S.C. § 1344

. Nunes seeks reversal of his conviction on
the ground that the district court misstated the materiality element of the bank
fraud offenses in the jury instructions. Sutherland seeks reversal of her conviction
on the grounds that the district court erred by failing to give a specific unanimity
jury instruction on the conspiracy count and abused its discretion by denying her
motion for severance and by excluding evidence and expert testimony. She also
contends that the evidence presented at trial was insufficient to support her
conviction and that her trial counsel provided ineffective assistance. The appeals
are consolidated and we affirm on all grounds.
Because Nunes argues that the jury instructions misstated the law and
deprived him of his theory of the case, we review de novo. United States v. Stone,

706 F.3d 1145

, 1146 (9th Cir. 2013). The instruction, which was taken from the
**
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
2
Ninth Circuit model jury instructions, is consistent with the Supreme Court’s
characterization of materiality as encompassing an objective standard. See Neder
v. United States,

527 U.S. 1

, 16, 36 (1999). Furthermore, while the district court
did not adopt Nunes’s requested theory of defense instruction, the jury instructions
“adequately cover[ed Nunes’s] defense theory.” United States v. Bush,

626 F.3d 527

, 539 (9th Cir. 2010).
Sutherland did not challenge the unanimity instruction before the district
court and therefore it is reviewed for plain error. United States v. Moran,

493 F.3d 1002

, 1009 (9th Cir. 2007). General unanimity instructions are sufficient in
routine cases where unanimity can be presumed. United States v. Ferris,

719 F.2d 1405

, 1407 (9th Cir. 1983). The district court did not commit plain error in
providing a general unanimity instruction here.
The district court did not abuse its discretion in refusing Sutherland’s motion
to sever as the joinder did not render the trial manifestly prejudicial. United States
v. Doss,

630 F.3d 1181

, 1192 (9th Cir. 2011). It also acted within its discretion
when excluding irrelevant evidence and expert testimony. United States v.
Ramirez,

176 F.3d 1179

, 1182 (9th Cir. 1999) (evidentiary rulings to be reversed
for abuse of discretion only where error “more likely than not affected the
verdict”); United States v. Hankey,

203 F.3d 1160

, 1167 (9th Cir. 2000) (district
3
court’s ruling on expert testimony only reversed for abuse of discretion where
“manifestly erroneous”).
The evidence provided at trial was sufficient to support Sutherland’s
conviction because when viewing the evidence in the light most favorable to the
prosecution, a reasonable juror could find sufficient evidence to convict. See
United States v. Rizk,

660 F.3d 1125

, 1134 (9th Cir. 2011).
Finally, we will not consider Sutherland’s ineffective counsel claims on
direct appeal because the record is not sufficiently developed to permit review and
because Sutherland has not demonstrated that her counsel was “obviously”
deficient in violation of the Sixth Amendment. United States v. Ross,

206 F.3d 896