                           NOT FOR PUBLICATION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


                                          2
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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