                                                                                        FILED
                            NOT FOR PUBLICATION                                         JUN 14 2012

                                                                                  MOLLY C. DWYER, CL
                     UNITED STATES COURT OF APPEALS                                 U .S. C O U R T OF APPE A




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-10168

              Plaintiff - Appellee,               D.C. No. 3:10-cr-00068-WHA-1

  v.
                                                  MEMORANDUM *
JOHN BROSNAN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                        Argued and Submitted May 16, 2012
                             San Francisco, California

Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

       John Brosnan appeals from his jury conviction for four counts of wire fraud,

one count of obstruction of justice, three counts of perjury, and one count of

aggravated identity theft. We affirm. Because the parties are familiar with the

factual history of this case, we need not recount it here.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                            I

      The district court did not abuse its discretion by admitting prior act evidence.

Evidence of other acts may be admitted under Federal Rule of Evidence 404(b) if

“(1) the evidence tends to prove a material point; (2) the prior act is not too remote

in time; (3) the evidence is sufficient to support a finding that [the] defendant

committed the other act; and (4) . . . the act is similar to the offense charged.”

United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994).

      The district court did not abuse its discretion in concluding that evidence of

Brosnan’s actions in a prior civil lawsuit was admissible because it tended to prove

that Brosnan had knowingly and intentionally fabricated documents to defraud the

court. The events in the prior lawsuit were similar to and not too remote from the

offenses alleged in this case. The evidence was also sufficient to support a finding

that Brosnan committed the other act.

      Evidence admissible under Rule 404(b) may still be excluded if “its

probative value is substantially outweighed by the danger of unfair prejudice.”

United States v. Flores-Blanco, 623 F.3d 912, 919 (9th Cir. 2010) (quoting United

States v. Bibo-Rodriguez, 922 F.2d 1398, 1400-01 (9th Cir. 1991)). However, the

district court did not abuse its discretion in concluding that evidence from

Brosnan’s prior lawsuit was not unduly prejudicial. Moreover, any danger of




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unfair prejudice from this evidence “was minimized by the district court’s limiting

instruction to the jury.” Id. at 920.

                                           II

      The district court did not abuse its discretion in denying the motion for a

mistrial. Brosnan argues that the government impermissibly referenced the Rule

404(b) evidence for propensity purposes during its closing arguments. The district

court did not err in concluding that such references were not “clearly designed to

show [Brosnan’s] propensity.” United States v. Brown, 327 F.3d 867, 872 (9th Cir.

2003). Brosnan’s defense at trial was that he had committed the charged acts, but,

because he did not actually draft the fabricated document that he filed with the

court, lacked fraudulent intent. The government’s comparison of Brosnan’s acts in

his prior lawsuit to his acts in this case directly rebutted Brosnan’s claim that he

had no intent to defraud the court by filing the false document, and it was relevant

to show intent, preparation, and absence of mistake.

      Brosnan did not object to the statements during the argument, nor offer a

curative instruction. The court did instruct the jury to consider the prior act

evidence for permissible, non-propensity purposes. Given these circumstances, the

district court did not abuse its discretion in denying the motion for a mistrial.

                                           III




                                           3
      The district court did not err in admitting what Brosnan contends was

improper, unnoticed expert testimony to prove the interstate wire element of the

wire fraud counts. The witnesses did not offer opinions based on “scientific,

technical, or other specialized knowledge,” Fed. R. Evid. 702, but facts based on

their “perception” of the structure of the system, Fed. R. Evid. 701. As such, their

testimony was properly admitted.

                                          IV

      The jury instructions did not result in a constructive amendment or fatal

variance of the indictment. The divergence between the wire fraud crime charged

in the indictment and the court’s instructions to the jury did not “affect the

sufficiency of the complaint or alter the crime charged.” United States v. Von

Stoll, 726 F.2d 584, 587 (9th Cir. 1984). The statute under which Brosnan was

charged for wire fraud, 18 U.S.C. § 1343, prohibits fraudulent transmissions “in

interstate or foreign commerce.” Thus, the government was required to prove only

that the notices Brosnan triggered through his electronic court filings crossed state

lines; where they actually traveled was “mere surplusage that need not be proved.”

United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986).

                                           V

      Brosnan is not entitled to reversal on the basis of cumulative error. United

States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Because the district court



                                           4
acted within its discretion, there are no trial errors to analyze in the aggregate.

Furthermore, given the strength of the government’s case, any errors that were

present were harmless and “did not render the defense far less persuasive than it

might [otherwise] have been.” United States v. Nobari, 574 F.3d 1065, 1083 (9th

Cir. 2009) (internal quotation marks and citations omitted) (alteration in original).



      AFFIRMED.




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