United States v. Linda Gagnon , 616 F. App'x 332 ( 2015 )

FILED
NOT FOR PUBLICATION
SEP 17 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50119
Plaintiff - Appellee, D.C. No. 8:11-cr-00056-AG-1
v.
MEMORANDUM*
LINDA ROSE GAGNON,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted September 3, 2015
Pasadena, California
Before: O’SCANNLAIN, TROTT, and BYBEE, Circuit Judges.
Because the facts and circumstances of this case are well known to the
parties, we repeat them here only as necessary to illuminate our decision.
Appellant Gagnon asserts that the district court had a sua sponte due process
obligation to authorize the payment of Criminal Justice Act funds so that Dr.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Sporty could be called as a witness in her defense. 18 U.S.C. § 3006A(e). Because
Gagnon made no request for such funds, we review this issue for plain error.
The cases Gagnon cites to support her argument are not on point. Morever,
Dr. Sporty’s capacity testimony would not have been consistent with the picture of
her stable mental competence and the nature of the “no fraud” defense developed
during the trial. Also, because of questionable factual representations she made to
Dr. Sporty, his testimony may well have damaged her case. Accordingly, Gagnon
has failed to demonstrate that the absence of Dr. Sporty’s testimony affected her
substantial rights, and the district court did not err by declining to allot Criminal
Justice Act funds on its own initiative.
Gagnon’s claim of instructional error has no merit, for two reasons. First,
counsel agreed to the disputed instruction, and, second, the instruction itself is not
infirm. United States v. Treadwell, 593 F.3d 990, 994, 996-99 (9th Cir. 2010).
Given the nature of the transaction and Gagnon’s relationship with the U.S.
Province of the Religious of Jesus and Mary, Inc. (“RJM”), the district court’s
imposition of an abuse of trust sentencing adjustment under U.S.S.G. § 3B1.3 was
appropriate. See United States v. Laurienti, 731 F.3d 967, 973-74 (9th Cir. 2013).
As to the court’s order of restitution to RJM, we discern no error. The
amount expended as part of the investigation and prosecution of Gagnon’s crime
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was reasonable and necessary. 18 U.S.C. § 3663A(b)(4); United States v.
Waknine, 543 F.3d 546, 558-59 (9th Cir. 2008).
AFFIRMED
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