                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 08 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50273

              Plaintiff - Appellee,              D.C. No. 8:11-cr-00242-JLS-1

 v.
                                                 MEMORANDUM*
MARIBEL RINCON,

              Defendant - Appellant.


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

                              Submitted July 5, 2016**
                                Pasadena, California

Before: MURGUIA, and WATFORD, Circuit Judges, and BOLTON,*** District
Judge.




        *
             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).
        ***
             The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
       Maribel Rincon appeals her convictions for aiding and abetting the filing of

false, fictitious, or fraudulent claims against the United States, in violation of 18

U.S.C. §§ 287 and 2(b). Rincon raises three issues on appeal: (1) that she was

deprived of her constitutional right to effective assistance of counsel because of her

attorney’s lack of compensation while he was representing her; (2) that the district

court plainly erred in refusing to admit expert testimony that Rincon suffered from

a mental condition that caused her to lack the capacity to form fraudulent intent;

and (3) that the district court plainly erred in instructing the jury that it could find

her guilty of violating 18 U.S.C. § 287 based on a “deliberate ignorance” theory

after it excluded the proffered expert testimony, or by failing to provide the jury

with a willfulness instruction. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742. We affirm.

       1.     We decline to address Rincon’s Sixth Amendment claim on direct

appeal because the record is insufficiently developed and her counsel’s

representation was not so inadequate that it can be concluded that Rincon was

denied her constitutional right to conflict-free representation. See United States v.

McKenna, 327 F.3d 830, 845 (9th Cir. 2003). To the extent that Rincon raises a

Fifth Amendment violation on behalf of her trial counsel, Rincon lacks standing to

assert such a claim. See Barrows v. Jackson, 346 U.S. 249, 255 (1953)

                                            2
(“Ordinarily, one may not claim standing . . . to vindicate the constitutional rights

of some third party.”).

      2.     We affirm the district court’s exclusion of expert testimony on

Rincon’s capacity to form fraudulent intent because Federal Rule of Evidence

704(b) prohibits expert testimony that the defendant did not possess the requisite

mens rea to commit the charged offenses. Assuming that Rincon preserved this

error for appeal even though she did not make an offer of proof to the district court,

see Fed. R. Evid. 103(a)(2); United States v. Tamman, 782 F.3d 543, 552 n.2 (9th

Cir. 2015), the record supports the district court’s determination that the expert

testimony would not have otherwise materially assisted the jury in determining

whether Rincon committed the charged offenses. United States v. Byers, 730 F.2d

568, 571 (9th Cir. 1984). Rincon’s reasons for participating in the tax-fraud

scheme do not make Rincon’s knowledge of the falsity of the returns she helped

file any more or less probable, nor does § 287 require the government to prove that

Rincon possessed the intent to defraud, as Rincon contends.

      3.     We also affirm the district court’s jury instructions. By jointly

submitting the challenged jury instructions, Rincon forfeited her ability to

challenge them on appeal. United States v. Cain, 130 F.3d 381, 383–84 (9th Cir.

1997). But, even if we review for plain error, § 287 only forbids persons from

                                           3
presenting a claim to the United States that they know to be false, fictitious, or

fraudulent; it does not require a showing of willfulness. United States v. Atalig,

502 F.3d 1063, 1067 (9th Cir. 2007). The district court also did not err in giving a

deliberate ignorance instruction because nothing in the excluded expert testimony

(beyond its inadmissible mens rea conclusion) suggested that Rincon’s hybrid

personality disorder would have prevented her from suspecting the falsity of the

tax returns.

      AFFIRMED.




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