United States v. Kim Pounds

FILED
NOT FOR PUBLICATION FEB 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50218
Plaintiff - Appellee, D.C. No. 2:08-cr-00894-SJO-1
v.
MEMORANDUM *
KIM N. POUNDS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted February 2, 2010 **
Pasadena, California
Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.
Kim N. Pounds (“Pounds”) appeals from a judgment of the district court in
which she was convicted of fifteen counts of mail fraud under 18 U.S.C. § 1341
and sentenced to a year and a day in prison, followed by five years of supervised
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
release.1 She contends the district court abused its discretion and otherwise erred
in its decisions extending from pretrial through sentencing. We affirm.
First, the district court did not abuse its discretion when it denied Pounds’
motion in limine and permitted the admission of evidence of the loss amounts.
United States v. Reed, 575 F.3d 900, 920 (9th Cir. 2009). The district court could
reasonably conclude that evidence of the loss was relevant to prove the elements of
mail fraud, was relevant to show “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident,” and was not unduly
prejudicial. See Fed. R. of Evid. 401-404.
Second, it was not plain error for the district court to permit the
government’s statements about the loss amounts in closing argument as they were
neither inconsistent with the government’s prior statements nor unduly prejudicial
and Pounds did not object to these statements before the district court. United
States v. Brown, 327 F.3d 867, 871 (9th Cir. 2003).
Third, the district court did not abuse its discretion when it permitted
Michael Kennedy to testify that someone who lived New Orleans but moved to
California eleven months before Hurricane Katrina would not be eligible for
1
The parties are familiar with the facts of this case and we repeat them
here only as necessary.
2
FEMA disaster assistance. This testimony was rationally based on his perceptions
as a FEMA employee, was helpful to determination of a fact in issue (the primary
residence requirement) and was not based on specialized information within the
scope of Rule 702. United States v. Matsumaru, 244 F.3d 1092, 1101-02 (9th Cir.
2001).
Fourth, the district court did not abuse its discretion when it admitted
evidence of Pounds’ other applications for FEMA disaster assistance and allegedly
permitted the government to misuse that evidence. Pounds agreed to the
introduction of this evidence with the limiting instruction and the district court
could reasonably conclude that the government’s use of the evidence was
consistent with the limiting instruction.
Fifth, the district court did not commit plain error when it imposed an
occupational restriction as a condition of Pounds’ supervised release and Pounds
did not object before the district court. United States v. Vega, 545 F.3d 743, 747
(9th Cir. 2008); see also United States v. Goddard, 537 F.3d 1087, 1091-92 (9th
Cir. 2008). The condition, which prohibited her from obtaining any employment
without prior approval of her Probation Officer, was based on her admitted drug
use, as well as her homicidal and suicidal thoughts. It did not prevent her from
3
working in any particular occupation, was reasonably related to protecting the
public, and was limited to the term of her supervised release.
Finally, because the written judgment did not directly conflict with the oral
judgment, but rather clarified ambiguities, there is no need to remand with
instructions that the district court conform the written judgment to the oral
pronouncement of sentence. Taylor v. Reno, 164 F.3d 440, 445-47 (9th Cir. 1998).
AFFIRMED.
4