                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                          JAN 03 2017

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No.   15-50218

              Plaintiff-Appellee,                D.C. No. 2:11-cr-01056-R-1

 v.
                                                 MEMORANDUM*
MARCUS ANDREWS,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                     Argued and Submitted December 7, 2016
                              Pasadena, California

Before: REINHARDT, TASHIMA, and PAEZ, Circuit Judges.

      Defendant Marcus Andrews appeals his conviction of five counts of mail

fraud in violation of 18 U.S.C. § 1341. Andrews contends that the district court

erred by denying his application for funds under the Criminal Justice Act (“CJA”),

18 U.S.C. § 3006A(e), to pay for trial preparation and testimony by an expert



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
witness, psychologist Dr. Vianne Castellano. Andrews also claims that, because of

his alleged inability to procure Dr. Castellano’s testimony, he was deprived of his

constitutional rights to effective assistance of counsel and to present a complete

defense. Finally, Andrews claims that the district court erred in sentencing him to

imprisonment as a condition of probation. We have jurisdiction over this appeal

pursuant to 28 U.S.C. § 1291. We affirm the conviction below, but vacate the

sentence and remand for re-sentencing.

      1. Under the CJA, a person who is financially unable to obtain expert

services “necessary for adequate representation” may request funding for such

services in an ex parte application. 18 U.S.C. § 3006A(e)(1). In order to obtain

such funds, a defendant must (1) establish his financial inability to pay for the

expert’s services, (2) show by clear and convincing evidence that a “reasonably

competent counsel would have required the assistance of the requested expert for a

paying client,” and (3) show by clear and convincing evidence that he was

“prejudiced by the lack of expert assistance.” United States v. Reed, 575 F.3d 900,

918 (9th Cir. 2009) (internal quotation marks omitted); see also United States v.

Rodriguez-Lara, 421 F.3d 932, 940 (9th Cir. 2005).

      Here, Andrews failed to meet the first requirement of § 3006(A)(e)(1), as he

did not demonstrate the requisite financial need for CJA funding. At the time of his


                                           2
request for CJA funds, Andrews was represented by retained, private counsel.

Although Andrews claimed that he had “exhausted all of his funds” to retain such

counsel, he failed to submit a financial affidavit or any other proof of indigent

status. We therefore conclude that Andrews did not meet his burden of proof in

showing a financial need for CJA funds, United States v. Ellsworth, 547 F.2d 1096,

1098 (9th Cir. 1976), and that it was not an abuse of discretion for the district court

to deny his motion to provide funds for the retention of an expert witness.

      Moreover, in light of the overwhelming evidence of his intent to defraud,

Andrews is unable to demonstrate prejudice due to the denial of CJA funds. See

United States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996) (holding that the

defendant could not demonstrate that he was prejudiced by the district court’s

denial of his motion to appoint an expert witness when there was “overwhelming

evidence of [the defendant’s] guilt”). Substantial evidence before the district court

demonstrated that Andrews knew that he did not have authorization to use the

American Express account in question, and that he was not under any delusion to

the contrary. Furthermore, Andrews’ own statements to other experts, to the Secret

Service, and to the United States Probation Office explicitly contradicted Dr.

Castellano’s findings. We therefore conclude that Andrews is not able to show by

clear and convincing evidence that he was prejudiced by the district court’s denial


                                           3
of his motion for funding under § 3006(A)(e)(1). See United States v. Rodriguez-

Lara, 421 F.3d at 946-47 (stating that a “wealth of evidence against the defendant”

may “demonstrate[] that the denial of expert assistance did not prejudice him”).

Because Andrews has shown neither financial need nor prejudice, we hold that the

district court did not abuse its discretion in denying Andrews’ motion for CJA

funds. Additionally, we conclude that because Andrews was not prejudiced by his

alleged inability to present Dr. Castellano’s testimony, he was not deprived of his

right to effective assistance of counsel,1 see Strickland v. Washington, 466 U.S.

668, 687 (1984), or of his right to present a complete defense, see United States v.

Pineda-Doval, 614 F.3d 1019, 1036 (9th Cir. 2010).

      2. Although we affirm Andrews’ conviction, we vacate his sentence and

remand to the district court for re-sentencing. We review the district court’s

authority to impose a condition of probation de novo. See United States v.

Bainbridge, 746 F.3d 943, 946 (9th Cir. 2014). As we have clearly held, and as the

government concedes, the probation statute “precludes the imposition of both

probation and straight imprisonment.” United States v. Forbes, 172 F.3d 675, 676

(9th Cir. 1999) (citing 18 U.S.C. § 3561). Thus, the district judge erred when he



      1
       We, of course, do not opine on any possible claim of ineffective assistance
of counsel based on any other ground.
                                          4
sentenced Andrews to five years’ probation and ordered that, as a condition of

probation, Andrews would be imprisoned for a period of six months. We therefore

remand so that the district court may impose a lawful sentence.

       Conviction AFFIRMED, and sentence VACATED.




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