                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              FEB 28 2017
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         Nos. 15-50077
                                                       15-50186
              Plaintiff-Appellee,
                                                  D.C. No. 2:14-cr-00282-R-3
 v.

CHERIE BROWN,                                     MEMORANDUM*

              Defendant-Appellant.


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

                      Argued and Submitted February 14, 2017
                               Pasadena, California

Before: D.W. NELSON, TALLMAN, and N.R. SMITH, Circuit Judges.

      Following a jury trial, Cherie Brown appeals her convictions and sentence

for mail fraud and wire fraud. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      1.     Brown argues she did not receive a fair trial, based on the district

court’s (1) refusal to grant her request for a continuance, in full; (2) manner of



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
conducting the trial; and (3) evidentiary and procedural rulings. These allegations

did not individually, or in combination, result in an unfair trial.

      The district court did not abuse its wide discretion in ruling on Brown’s

request for a continuance. Brown fails to identify any evidence she would have

presented at trial if she had more time to review discovery and prepare. See United

States v. Wilkes, 662 F.3d 524, 543 (9th Cir. 2011) (“Prejudice resulting from the

denial of the continuance must be established.”). Brown also fails to acknowledge

that, on the day she expected to begin trial, the court granted her an additional

month to prepare by severing her from the trial of two co-defendants. Thus,

Brown’s trial began only three weeks before the date she requested.

      Neither the district court’s manner of conducting the trial, nor its evidentiary

and procedural rulings, showed judicial bias. First, most of the admonishments

about which Brown complains occurred outside the presence of the jury to

maintain the integrity of the hearing. Second, several interactions had innocent

explanations. For example, when the district court confronted Brown about

misleading the jury, the court’s concern was based on its misunderstanding of an

item of evidence rather than on any animosity. Third, although Brown complains

that the district court interrupted her presentation twenty-four times, this was not

unreasonable for a trial that lasted more than a week. See United States v. Scott,

642 F.3d 791, 799 (9th Cir. 2011) (per curiam) (finding no bias where the court


                                            2
interrupted the defense “over a hundred times during the course of a week-long

trial”). Fourth, while Brown argues the district court limited her ability to elicit

testimony on several topics and to engage in certain trial practices, each ruling was

well within the bounds of the district court’s discretion. Considering the court’s

conduct as a whole––rather than certain incidents in isolation––we are not left with

“an abiding impression that the jury perceived an appearance of advocacy or

partiality.” United States v. Marks, 530 F.3d 799, 806 (9th Cir. 2008).

      2.     The district court did not deprive Brown of a defense by exercising its

discretion to limit cross-examination. See United States v. Larson, 495 F.3d 1094,

1101–02 (9th Cir. 2007) (en banc). Brown could not lay the foundation for the

unverified complaint from Daniel Zucker’s lawsuit because it was not comprised

of Zucker’s statements, and Brown could not introduce the complaint under

Federal Rule of Evidence (FRE) 801(d)(1)(A) because it was not a statement made

“under penalty of perjury.” Furthermore, Brown suffered no prejudice from the

exclusion, as she was able to introduce the same information through other sources.

      Concerning witness Tiffany Ryan, the district court allowed testimony

sufficient to show a potential bias and its source. After the district court ensured

that Brown had the opportunity to demonstrate Ryan’s potential bias, the court

acted within its discretion to determine that further testimony on the topic would

have been “repetitive or only marginally relevant.” See Larson, 495 F.3d at 1101


                                            3
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

      Finally, limits the district court placed on other topics Brown identifies did

not exceed the court’s discretion to “determin[e] the relevance of a given topic and

the extent of [evidence] to be permitted on that topic.” See Scott, 642 F.3d at

796–97 (quoting United States v. Brown, 936 F.2d 1042, 1048 (9th Cir. 1991)).

      3.     It was not an abuse of discretion to exclude Brown’s out of court

statements to investors. See United States v. Mitchell, 502 F.3d 931, 964 (9th Cir.

2007). Brown sought to introduce statements, in which she apparently expressed

her belief in certain aspects of the companies, to prove that she actually believed in

those aspects of the companies. Those statements are hearsay, and Brown’s

“attempt to introduce[, through FRE 803(3),] statements of her belief (that she was

not violating the law) to prove the fact believed (that she was acting in good-faith)

[was] improper.” See United States v. Sayakhom, 186 F.3d 928, 937 (9th Cir.),

amended by 197 F.3d 959 (9th Cir. 1999) (mem.). Even assuming the statements

were excepted under FRE 803(3), Brown introduced evidence of her belief in the

financial success of the companies through other means. Thus, she has not shown

prejudice. See Mahone v. Lehman, 347 F.3d 1170, 1172 (9th Cir. 2003).

      4.     The district court’s restitution order was not an abuse of discretion.

See United States v. Fu Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir. 2010). The

government had the burden to prove the amount of restitution by a preponderance


                                           4
of the evidence. United States v. Waknine, 543 F.3d 546, 556 (9th Cir. 2008); see

also 18 U.S.C. § 3663A(a)(1)–(2). An FBI forensic accountant used bank records

of Gigapix, OZ3D, and related entities to calculate the victims’ losses. She cross-

checked her own system for determining the deposits made by the victims with an

investor list provided by a former Gigapix employee and with documents from

trust companies the victims used to make deposits. She then further researched any

differences. Although the district court could have imposed over $14 million in

restitution, it instead ordered that Brown pay only the $2,566,875 in losses

sustained by her own investor victims.

      AFFIRMED.




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