United States v. Meredith McConnell ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30224
Plaintiff-Appellee, D.C. No.
1:19-cr-00090-SPW-1
v.
MEREDITH MCCONNELL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted May 11, 2023
Seattle, Washington
Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.
Meredith McConnell was the chairwoman of the board of the Montana
Native Women’s Coalition (MNWC), a federally funded organization that combats
threats of domestic and sexual violence against Native women. She was convicted
of theft from a program receiving federal funds in violation of 18 U.S.C. §
666(a)(1)(A), (a)(2); wire fraud in violation of § 1343; and false claims in violation
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of § 287. McConnell appeals her conviction and the district court’s order of
restitution, and we affirm. As the parties are familiar with the facts of this case, we
do not repeat them here.
1. The district court did not abuse its discretion nor deny McConnell due
process by admitting evidence of a prior MNWC executive director’s prosecution
for similar, but unrelated, prior conduct. McConnell and other board members
attended a special training regarding the proper administration of federal program
monies where they discussed the former executive director’s conduct and how it
amounted to the improper use of MNWC funds. Accordingly, evidence of the
prior prosecution and this training was admissible for the purposes of proving
McConnell acted with knowledge and intent to defraud when she engaged in
similar misconduct and for the purposes of proving the absence of any mistake or
accident. See Fed. R. Evid. 401, 404(b)(2). The district court carefully balanced
the risk of “unfair prejudice” that admission of this evidence might pose and
ultimately found that its probative value was not “substantially outweighed” by
that risk. Fed. R. Evid. 403. Moreover, the government’s closing argument
mitigated the prejudicial effect of the evidence by making it clear to the jury that
there was “no link between Ms. McConnell and the” former executive director’s
“criminal activity.”
The district court’s Rule 403 balancing is entitled to “considerable
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deference,” and we see no abuse of discretion in the admission of the challenged
evidence. United States v. Bussell, 414 F.3d 1048, 1059 (9th Cir. 2005) (citation
omitted).
2. The district court properly declined to dismiss the wire fraud count of the
superseding indictment. McConnell’s argument that the superseding indictment
should have alleged “the materiality of the scheme” to defraud instead of alleging a
“material scheme” to defraud lacks merit. “[C]hallenges to minor or technical
deficiencies, even where the errors are related to an element of the offense charged
and even where the challenges are timely, are amenable to harmless error review.”
United States v. Du Bo, 186 F.3d 1177, 1180 (9th Cir. 1999). McConnell cannot
establish any harm to her substantial rights because the superseding indictment
“fairly inform[ed]” her “of the charge against which [s]he must defend,” United
States v. Ross, 206 F.3d 896, 899 (9th Cir. 2000) (citation omitted), and she does
not dispute that the petit jury was properly instructed on the element of materiality,
see United States v. Leveque, 283 F.3d 1098, 1104 (9th Cir. 2002); see also United
States v. Salazar-Lopez, 506 F.3d 748, 754-56 (9th Cir. 2007) (explaining
overwhelming evidence and proper instructions before the petit jury can rectify
minor errors before the grand jury). Nor was the superseding indictment required
to allege specific false statements or omissions. See United States v. Omer, 395
F.3d 1087, 1089 (9th Cir. 2005) (per curiam).
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3. The district court’s instruction on good faith was not plain error.
McConnell argues for the first time on appeal that Instruction 36 reduced the
government’s burden of proof and required the jury to convict even if it concluded
that McConnell had acted in good faith. The relevant portion of Instruction 36
reads: “While an honest, good-faith belief in the truth of the scheme to defraud
may negate an intent to defraud, a good-faith belief that the victim will be repaid
and will sustain no loss is no defense at all.” The instruction is a near-verbatim
quote from United States v. Spangler, 810 F.3d 702, 708 (9th Cir. 2016) (“While
an honest, good-faith belief in the truth of the misrepresentations may negate intent
to defraud, a good-faith belief that the victim will be repaid and will sustain no loss
is no defense at all.” (citation omitted)). The district court’s minor alteration was
not plain error. Rather, the instruction adequately informed the jury that
McConnell’s good-faith belief in the veracity of her actions could negate an intent
to defraud. By its verdict, the jury disbelieved her good-faith defense.
4. Because McConnell has failed to demonstrate a single instance of error,
she cannot show that her trial suffered from cumulative errors. Id. at 711.
5. The district court did not err in calculating and imposing restitution.
First, the district court properly shifted the burden of production to McConnell to
substantiate her request for an $18,253 reduction after the government adequately
established the total loss amount by a preponderance of the evidence. 18 U.S.C. §
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3664(e); cf. CFPB v. CashCall, Inc., 35 F.4th 734, 751 (9th Cir. 2022) (discussing
burden shifting in other restitution contexts). Second, the record unequivocally
reflects that the district court found that the total loss was $37,149.88 and that the
restitution sum owed by McConnell was $29,114.14. Thus, the district court
understood the distinction between total loss and restitution. Third, the district
court was not obliged to order that she make only nominal payments based on her
ability to pay. See 18 U.S.C. § 3664(f). Moreover, given that McConnell failed to
object to the restitution award on these grounds at sentencing, we cannot conclude
that the district court’s consideration of her economic circumstances constituted
plain error. Finally, contrary to McConnell’s suggestion, the district court did
apportion liability among her codefendants, although it was not obliged to do so.
See United States v. Booth, 309 F.3d 566, 576 (9th Cir. 2002) (citing 18 U.S.C. §
3664(h)).
AFFIRMED.
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