United States v. Kelly Nunes Jeannie Sutherland

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 04 2014

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

UNITED STATES OF AMERICA, No. 12-10411

Plaintiff - Appellee, D.C. No. 2:10-cr-00356-LDG-
VCF-4
v.

KELLY NUNES, MEMORANDUM*

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 12-10481

Plaintiff - Appellee, D.C. No. 2:10-cr-00356-LDG-
VCF-1
v.

JEANNIE SUTHERLAND,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding

Argued and Submitted February 12, 2014
San Francisco, California

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT and THOMAS, Circuit Judges, and SESSIONS, District
Judge.**

Kelly Nunes and Jeannie Sutherland appeal from a judgment of conviction

after a jury found both guilty of one count of conspiracy to commit wire fraud,

mail fraud, and bank fraud, in violation of 18 U.S.C. § 1349, and one count of bank

fraud, in violation of 18 U.S.C. § 1344. Nunes seeks reversal of his conviction on

the ground that the district court misstated the materiality element of the bank

fraud offenses in the jury instructions. Sutherland seeks reversal of her conviction

on the grounds that the district court erred by failing to give a specific unanimity

jury instruction on the conspiracy count and abused its discretion by denying her

motion for severance and by excluding evidence and expert testimony. She also

contends that the evidence presented at trial was insufficient to support her

conviction and that her trial counsel provided ineffective assistance. The appeals

are consolidated and we affirm on all grounds.

Because Nunes argues that the jury instructions misstated the law and

deprived him of his theory of the case, we review de novo. United States v. Stone,

706 F.3d 1145, 1146 (9th Cir. 2013). The instruction, which was taken from the

**
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.

2
Ninth Circuit model jury instructions, is consistent with the Supreme Court’s

characterization of materiality as encompassing an objective standard. See Neder

v. United States, 527 U.S. 1, 16, 36 (1999). Furthermore, while the district court

did not adopt Nunes’s requested theory of defense instruction, the jury instructions

“adequately cover[ed Nunes’s] defense theory.” United States v. Bush, 626 F.3d

527, 539 (9th Cir. 2010).

Sutherland did not challenge the unanimity instruction before the district

court and therefore it is reviewed for plain error. United States v. Moran, 493 F.3d

1002, 1009 (9th Cir. 2007). General unanimity instructions are sufficient in

routine cases where unanimity can be presumed. United States v. Ferris, 719 F.2d

1405, 1407 (9th Cir. 1983). The district court did not commit plain error in

providing a general unanimity instruction here.

The district court did not abuse its discretion in refusing Sutherland’s motion

to sever as the joinder did not render the trial manifestly prejudicial. United States

v. Doss, 630 F.3d 1181, 1192 (9th Cir. 2011). It also acted within its discretion

when excluding irrelevant evidence and expert testimony. United States v.

Ramirez, 176 F.3d 1179, 1182 (9th Cir. 1999) (evidentiary rulings to be reversed

for abuse of discretion only where error “more likely than not affected the

verdict”); United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000) (district

3
court’s ruling on expert testimony only reversed for abuse of discretion where

“manifestly erroneous”).

The evidence provided at trial was sufficient to support Sutherland’s

conviction because when viewing the evidence in the light most favorable to the

prosecution, a reasonable juror could find sufficient evidence to convict. See

United States v. Rizk, 660 F.3d 1125, 1134 (9th Cir. 2011).

Finally, we will not consider Sutherland’s ineffective counsel claims on

direct appeal because the record is not sufficiently developed to permit review and

because Sutherland has not demonstrated that her counsel was “obviously”

deficient in violation of the Sixth Amendment. United States v. Ross, 206 F.3d

896, 900 (9th Cir. 2000).

AFFIRMED.