United States v. Erin Lovellette , 472 F. App'x 593 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 28 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50080
Plaintiff - Appellee, D.C. No. 3:09-cr-01355-JAH-1
v.
MEMORANDUM*
ERIN D. LOVELLETTE,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted March 9, 2012
Pasadena, California
Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.
Defendant Erin D. Lovellette (“Lovellette”) was indicted on charges of theft
by a credit union employee, in violation of 18 U.S.C. § 657, and tax evasion, in
violation of 26 U.S.C. § 7201. A jury found Lovellette guilty on both counts.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Lovellette appeals her convictions. We have jurisdiction pursuant to 28 U.S.C. §
1291 and we affirm. We address her arguments in turn.
1. Lovellette argues that insufficient evidence supports her conviction for
theft by a credit union employee because the government failed to prove: (1) that
the credit union at issue, Pacific Marine Credit Union (“PMCU”), was insured by
the National Credit Union Administration Board; (2) that $100,000 was stolen
from PMCU; and, (3) that Lovellette stole the $100,000. Lovellette’s arguments
fail, as there was sufficient evidence for a rational jury to find each of the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979).
William Bernie, the internal auditor at PMCU, testified that PMCU’s
deposits were insured by the federal government. During Bernie’s testimony, the
government also offered into evidence a certificate by the National Credit Union
Administration. See United States v. Bellucci, 995 F.2d 157, 160 (9th Cir. 1993)
(holding that a bank’s FDIC certificate of insurance was sufficient to establish that
the bank was insured by the FDIC); United States v. Corbin, 972 F.2d 271, 272
(9th Cir. 1992) (“We have held that bank employees’ uncontradicted testimony of
a bank’s insured status can sufficiently support the jury’s conclusion that this
element was proven beyond a reasonable doubt.”). Bernie also testified that
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$100,000 was stolen from the PMCU Branch on May 2, 2002. Branch manager
Candace Neuroth likewise testified that $100,000 went missing from the branch on
May 2, 2002. The evidence also established that Lovellette had access to the
missing cash, and that in 2002 Lovellette deposited over $70,000 in her various
bank accounts, the majority of which were in $100 denominations. This was
significantly higher than the $34,379.00 in income Lovellette and her husband
declared on their 2002 joint income tax return. Accordingly, sufficient evidence
supports Lovellette’s conviction for theft by a credit union employee. Jackson,
443 U.S. at 319.
2. Because sufficient evidence establishes that Lovellette stole $100,000
from PMCU and failed to pay income taxes on the stolen money, sufficient
evidence also supports Lovellette’s conviction for tax evasion. Id.
3. The admission of various business and public records during Lovellette’s
trial did not violate the Sixth Amendment’s Confrontation Clause. “Business and
public records are generally admissible absent confrontation . . . because–having
been created for the administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial–they are not testimonial.” Melendez-Diaz
v. Mass., 129 S. Ct. 2527, 2539-40 (2009).
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4. The government’s use of certificates of authenticity during Lovellette’s
trial did not violate the Sixth Amendment’s Confrontation Clause. See United
States v. Weiland, 420 F.3d 1062, 1077 (9th Cir. 2005).
5. The district court did not abuse its discretion when it declined to give
Lovellette’s proffered jury instructions regarding lost evidence. Lovellette has not
demonstrated that the evidence was lost in bad faith or that she was prejudiced by
the loss. See United States v. Artero, 121 F.3d 1256, 1259 (9th Cir. 1997); United
States v. Jennell, 749 F.2d 1302, 1308-09 (9th Cir. 1984).
AFFIRMED.
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