NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50011
Plaintiff - Appellee, D.C. No. 3:12-cr-01278-BTM-3
v.
MEMORANDUM*
ABIGAIL GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted April 6, 2015**
Pasadena, California
Before: D.W. NELSON, TASHIMA, and CLIFTON, Circuit Judges.
Appellant Abigail Gonzalez appeals her conviction and the district court’s
denial of her motion for a new trial. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We affirm.
*
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).
First, Appellant did not renew her motion to sever at any time during her
trial. As such, Appellant failed to pursue the motion diligently and waived the
issue for appellate review. United States v. Sullivan, 522 F.3d 967, 981 (9th Cir.
2008) (per curiam). Even assuming the motion was not waived, the severance
argument fails on the merits. The district court did not abuse its discretion in
finding that co-defendant Green’s testimony and related evidence was likely to be
introduced even if Appellant was tried separately. The evidence was relevant to a
substantive count against Appellant and did not result in improper spillover or
unfair prejudice.
Second, the district court did not abuse its discretion in excluding evidence
of Appellant’s abusive childhood and other details of her personal history under
Federal Rules of Evidence 401 and 403. This evidence is highly prejudicial and
has very little, if any, relevance or probative value absent some expert testimony
connecting the past abuse Appellant suffered to her mental state at the time of the
crime. Appellant proffered no such expert testimony. Given the “scant” probative
value of the evidence, the district court properly determined that the danger of
unfair prejudice substantially outweighed the probative value of the evidence in
this case. United States v. Haischer, No. 13-10392, slip op. at 8 (9th Cir. Mar. 25,
2015). Moreover, even assuming the district court did err in excluding this
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evidence, any error was harmless. United States v. Edwards, 235 F.3d 1173,
1178–79 (9th Cir. 2000) (per curiam). Exclusion of this evidence did not limit
Appellant’s ability to present her mens rea defense, and she has not demonstrated
that such evidence was more likely than not to have affected the verdict.
Finally, the district court did not err in denying Appellant’s motion for
judgment of acquittal for mail fraud, wire fraud, conspiracy to commit mail and
wire fraud, and conspiracy to launder monetary instruments. The evidence
presented at trial was sufficient to support the jury’s finding that Appellant acted
with knowledge and was not an unwitting participant. See United States v. Rizk,
660 F.3d 1125, 1134–35 (9th Cir. 2011). Similarly, the district court did not abuse
its discretion in finding that the evidence at trial did not weigh heavily against the
verdict and in denying Appellant’s motion for a new trial.
AFFIRMED.
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