United States v. Teresa Demint , 661 F. App'x 484 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 08 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50272
Plaintiff-Appellee, D.C. No.
5:12-cr-00085-VAP
v.
TERESA DEMINT, a.k.a. Teresa Annette MEMORANDUM*
Demint, a.k.a. Teresa A. Lind, a.k.a.
Teresa Annett Lind,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted August 30, 2016
Pasadena, California
Before: SILVERMAN, FISHER, and WATFORD, Circuit Judges.
Teresa DeMint appeals her conviction after jury trial of seven counts of
causing embezzlement and theft from an employee benefit plan, in violation of 18
U.S.C. § 664. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
On appeal, DeMint challenges various evidentiary rulings at trial, claiming
that they were caused by the district court’s misapprehension of the requisite mens
rea. Specifically, she claims that the district court failed to recognize that the
government was required to prove that she acted willfully, i.e. with a fraudulent
intent, bad purpose, or evil motive, to deprive another of property. See United
States v. Wiseman, 274 F.3d 1235, 1240 (9th Cir. 2001) (defendant “must
knowingly act wrongfully to deprive another of property” (alteration in original)
(internal quotation marks omitted)). This contention is belied by the record. The
district court inquired, and was correctly informed, about the requisite mens rea at
the pretrial conference. The district court additionally correctly instructed the jury
as to the willfulness requirement, as DeMint concedes. While the district court
focused many of its evidentiary rulings on whether the proffered evidence was
relevant to DeMint’s knowledge, this was because the defense theory at trial was
that DeMint lacked the requisite mens rea because she did not know that the funds
in question were pension funds. The district court did not misapprehend the
required mens rea; it simply focused its comments on the defense arguments.
We now take each of DeMint’s claims of evidentiary error in turn. We
review for abuse of discretion the district court’s evidentiary rulings during trial.
See United States v. Alvarez, 358 F.3d 1194, 1216 (9th Cir. 2004); United States v.
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Vallejos, 742 F.3d 902, 905 (9th Cir. 2014). We will reverse based on abuse of
discretion in evidentiary rulings only if such errors more likely than not affected
the verdict. See United States v. Angwin, 271 F.3d 786, 798 (9th Cir. 2001),
overruled on other grounds in United States v. Lopez, 484 F.3d 1186 (9th Cir.
2007) (en banc).
DeMint contends that the district court erred in categorically barring her
from presenting evidence that some of the transferred pension funds were used to
pay the company’s business expenses, rather than going to her personal benefit.
There was no such blanket preclusion. While the district court did limit cross-
examination of Special Agent Tim Weston to matters within the scope of his direct
testimony, the record reflects that the district court made clear that DeMint could
present such evidence through other witnesses. Any error would in any event have
been harmless, because evidence that the funds were used for business expenses
was introduced through other witnesses later in the trial, and because the use of
funds for non-pension purposes established, rather than refuted, her guilt. See
United States v. Mett, 178 F.3d 1058, 1068 (9th Cir. 1999) (rejecting argument that
pension funds not willfully misused when utilized for good of company so that
employees may keep their jobs).
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Nor did the district court err by sustaining a relevance objection to questions
about DeMint’s experience in selling residential real estate. Evidence of DeMint’s
degree of success, or limited success, in mortgage sales more than two decades
earlier had little, if any, evidentiary value in determining whether she was aware
that the funds being transferred out of the pension account were pension funds.
Even if the evidence had some relevance, any error was harmless because DeMint
nonetheless introduced other evidence of her purported lack of sophistication.
DeMint argues that Richard Clark should have been permitted to testify that
in his opinion DeMint lacked financial sophistication. No offer of proof of what
Clark would have testified to was made. But even assuming Clark would have
testified that he believed DeMint lacked financial sophistication and that such
testimony was lay opinion testimony outside the district court’s prior in limine
ruling, any error in excluding it was harmless. Clark was permitted to testify that
the company would not have been easy to run without a business or financial
background, and DeMint herself testified that she did not have such a background.
The evidence would have been of minimal value in assessing whether DeMint
knew that the funds were pension funds, particularly in light of the more direct
testimony by the company’s controller that he and DeMint discussed the
withdrawals and that the withdrawals were coming from the pension fund.
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DeMint argues that the district court erred in excluding evidence that illegal
pension fund withdrawals predated her tenure at the company. However, DeMint
never laid a foundation that she was aware of prior practices regarding the pension
fund. Absent such a foundation, the district court correctly excluded the evidence
on relevance grounds.
DeMint argues that evidence of prior practices regarding the pension
account was relevant to show that the company’s controller, David Pachon, could
have made the transfers on his own, without DeMint’s knowledge or participation,
simply by continuing a system that was already in place. See United States v.
Cohen, 888 F.2d 770, 776-77 (11th Cir. 1989) (evidence of government witness’s
other prior fraudulent acts could have shown witness “was capable of concocting
and managing the fraudulent scheme without [defendants’] participation”).
However, even if the district court erred in excluding this evidence on relevance
grounds, the error did not more likely than not affect the verdict. The evidence
against DeMint was strong, and evidence that prior management had also at times
made improper transfers from the pension account would not have significantly
altered the evidence supporting her conviction.
DeMint argues that the district court erred in permitting the government to
introduce evidence that portions of the pension funds were spent on her gambling
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losses, car, or other personal expenses. Evidence of motive in the form of personal
benefit can be circumstantial evidence that a defendant acted knowingly and
willfully, and evidence that the funds were spent for purposes other than benefit to
the trust was relevant. United States v. Andreen, 628 F.2d 1236, 1245 (9th Cir.
1980) (“Criminal intent may be inferred from proof the actions were unauthorized
or without benefit to the trust, or from evidence that transfers yielded personal
profit to the trustees.”). The evidence was properly admitted.
DeMint claims that she should have been permitted to elicit additional
testimony about statements she made to Investigator Matt Chandler under the
“Rule of Completeness,” which prevents a party from introducing a “misleadingly
tailored snippet” of a document. United States v. Collicott, 92 F.3d 973, 982-83
(9th Cir. 1996). However, DeMint’s proffer at trial concerning the additional
statements did not show that they contradicted the investigator’s statement. The
investigator’s testimony was not misleading without the additional context; the
additional information confirmed, rather than undermined, that DeMint agreed to
transfer money out of the retirement plan. Given this proffer, the district court did
not err in excluding the evidence on hearsay grounds, and not permitting it to be
introduced under the Rule of Completeness.
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DeMint claims that exclusion of her additional statements to Chandler
violated her Confrontation Clause rights. We review de novo alleged violations of
the Confrontation Clause, see United States v. Peterson, 140 F.3d 819, 821 (9th
Cir. 1998), and find no violation here. Precluding a defendant from eliciting
inadmissible hearsay on cross-examination, particularly where the defendant
testifies to the statements herself, does not constitute the type of severe limitation
on cross-examination that violates the Confrontation Clause. United States v.
Ortega, 203 F.3d 675, 683 (9th Cir. 2000).
Finally, DeMint complains about the cumulative impact of the alleged
errors, and asserts that the district court deprived her of the right to present a
defense. These arguments are without merit.
AFFIRMED.
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