United States v. Beverly Iron Pipe-Begay

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 28 2013

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 12-30266

Plaintiff - Appellee, D.C. No. 4:11-cr-00107-SEH-1

v.
MEMORANDUM*
BEVERLY PAULINE IRON PIPE-BEGAY,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding

Submitted August 26, 2013**
Seattle, Washington

Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.

Defendant Beverly Iron Pipe-Begay was convicted of theft of government

money and making a false statement to a federal agency. She appeals her

conviction on the basis that the district court’s evidentiary rulings precluded her

*
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).
from presenting a complete defense, and she also challenges the calculation of her

restitution order. We affirm.

We review de novo whether there has been a violation of the right to present

a defense. United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). Criminal

defendants have a due process right to “a meaningful opportunity to present a

complete defense,” which guarantees “the right to put before a jury evidence that

might influence the determination of guilt.” Id. at 755 (internal quotation marks

and citation omitted). In determining whether the exclusion of evidence violated

this right, we are guided by the following factors: “the probative value of the

evidence on the central issue; its reliability; whether it is capable of evaluation by

the trier of fact; whether it is the sole evidence or merely cumulative; and whether

it constitutes a major part of the attempted defense.” Id. at 756 (quoting Alcala v.

Woodford, 334 F.3d 862, 877 (9th Cir. 2003)).

Iron Pipe-Begay was not precluded from presenting a complete defense. The

exhibits she sought to introduce were cumulative of her testimony. What she

sought to prove with the exhibits—that she spent some of the funds on her

children—was not in dispute, as the government conceded in closing arguments

that she had put that portion of the money to its intended use. Nor were the exhibits

particularly reliable evidence. Much of the evidence consisted of Iron Pipe-

2
Begay’s handwritten notes. Finally, the evidence had minimal probative value on

the central issue at trial, which was whether she had lied on her application. The

government was not required to prove, and did not argue, that she misspent all of

the funds. Accordingly, we affirm the conviction.

We also affirm the order of restitution. Because Iron Pipe-Begay did not

challenge her restitution order before the district court, we review her challenge on

appeal for plain error. See United States v. Bright, 353 F.3d 1114, 1120 (9th Cir.

2004). Although restitution “is limited to the victim’s actual losses,” United States

v. Hunter, 618 F.3d 1062, 1064 (9th Cir. 2010), Iron Pipe-Begay has not pointed to

any authority making it clear that the government’s actual losses consist only of the

portion of benefits she did not spend on her children. Because she was not

qualified to receive the funds in the first place, it is not obvious under current law

that the government’s actual loss is less than the entirety of the funds disbursed.

For error to be plain, it must be “clear or obvious under current law,” and there is

no plain error “where there is no controlling authority on point.” United States v.

De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).

AFFIRMED.