                                                                                 FILED
                     UNITED STATES COURT OF APPEALS                              MAR 02 2011

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




UNITED STATES OF AMERICA,                         No. 09-10403

              Plaintiff - Appellee,               D.C. No. 3:09-cr-00057-VRW-1
                                                  Northern District of California,
  v.                                              San Francisco

ELISA MONIQUE LIPKINS,
                                                  ORDER
              Defendant - Appellant.


Before: GRABER, CALLAHAN, and BEA, Circuit Judges.

       The memorandum disposition filed on September 1, 2010, is withdrawn. A

replacement memorandum disposition will be filed concurrently with this order.

       Judge Graber, Judge Callahan, and Judge Bea vote to deny the petition for

rehearing and the petition for rehearing en banc. The full court has been advised of

the petition for rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

       The petition for rehearing and the petition for rehearing en banc are

DENIED.

       No further filings shall be accepted in this closed case.
                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                             MAR 02 2011

                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-10403

               Plaintiff - Appellee,             D.C. No. 3:09-cr-00057-VRW-1

  v.
                                                 MEMORANDUM*
ELISA MONIQUE LIPKINS,

               Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Northern District of California
                 Vaughn R. Walker, Chief District Judge, Presiding

                       Argued and Submitted August 10, 2010
                             San Francisco, California

Before: GRABER, CALLAHAN and BEA, Circuit Judges.

       Elisa Lipkins (“Lipkins”) appeals from her sentence for bank robbery on the

ground that the district court abused its discretion when it denied her ex parte

request for funds for a psychologist to examine her in advance of her sentencing.1


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1
            Because the parties are familiar with the facts of this case, we repeat
them here only as necessary to the disposition of this case.
To prevail under the standards set forth in the Criminal Justice Act, 18 U.S.C.

§ 3006A(e)(1) Lipkins has the burden of showing both that “(1) reasonably

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

a paying client, and (2) [she] was prejudiced by the lack of expert assistance.”

United States v. Rodriguez-Lara, 421 F.3d 932, 939 (9th Cir. 2005) (abuse of

discretion standard). (emphasis added). We hold that the district court did not

abuse its discretion when it determined that Lipkins did not meet this burden and

therefore affirm.

      We first consider whether the funds for the psychologist were required. See

United States v. Chase, 499 F.3d 1061, 1066-68 (9th Cir. 2007) (noting that “[t]he

court’s inquiry into the necessity of services must be specific to the facts of the

particular case”). In both Chase and Rodriguez-Lara, we held that the requested

funds were necessary because some aspect of the defendants’ cases depended on

the type of information that only an expert could provide. See Chase, 499 U.S. at

1065-68 (funds for expert were necessary in sentencing hearing involving drug

estimation because the sentence depended primarily on the quantity of narcotics

attributed to the defendant); Rodriguez-Lara, 421 F.3d at 946 (finding funds for an

expert during trial were necessary where “the defendant has alleged a dispositive




                                           2
defense that is supported in substantial measure by the evidence available, but

which cannot be fully developed without the help of an expert”).

      Here, Lipkins sought funds for a psychologist who, having examined her,

might proffer an opinion that might mitigate her sentence.2 Moreover, unlike the

requests in both Chase and Rodriguez-Lara, Lipkins’ request was based on

speculation that the expert might have some unspecified. We note that Lipkins did

not raise an insanity defense at trial or argue that any aspect of her sentencing

depended on an assessment of her mental issues.

      Lipkins’ lengthy criminal history encompasses twenty pages of the

Presentence Report (“PSR”). The PSR also detailed her extensive history of

family issues, personal traumas and reported mental problems. At sentencing, the

district court acknowledged Lipkins’ personal issues. The court, however, focused

on her recidivism and the proper means to prevent future criminal activities which

led the court to an upward departure from the range recommended by the

Sentencing Guidelines. During the sentencing phase, no one disputed that Lipkins

      2
             Lipkins’ ex parte request for funds did not explain her theory for how
her asserted mental issues were connected to her criminal activities, stating only
that “a psychological evaluation would help determine the appropriate sentence by
providing the court with a more complete picture of Ms. Lipkins’ prior experiences
and mental health challenges.” In particular, Lipkins presented no evidence or
argument in the request for funds, or in her argument to this court, that her mental
issues could cause criminal behavior or recidivism.

                                          3
had mental health issues. The PSR recommended that Lipkins should receive

mental health treatment as a condition of her supervised release, the government

did not object to this recommendation, and the district court ordered the treatment.

      In light of the PSR’s thorough review of Lipkins’ personal history and the

district court’s consideration of her personal and mental issues, we conclude that

Lipkins has not demonstrated that a psychologist was required to address some

component of the district court’s sentencing determination.

      Our second inquiry is whether “the defendant was prejudiced by the lack of

expert assistance.” Rodriguez-Lara, 421 F.3d at 946. “The prejudice cannot be

merely speculative; it must be demonstrated by clear and convincing evidence.”

Chase, 499 F.3d at 1068. Here there is only speculation that an expert might have

been able to dissuade the judge from the upward departure from the Guidelines.3

Although Lipkins’ burden to show prejudice may be relatively minimal, there is

      3
              Furthermore, the fact that in the abstract an expert might have been
helpful, is insufficient to demonstrate prejudice by clear and convincing evidence.
See, e.g., U.S. v. Becerra, 992 F.2d 960, 965-66 (9th Cir. 1993) (finding the district
court did not err in denying requested funds and noting that in the defendant’s
“motion for funds, he merely concludes that the tapes will be helpful to his
defense. He does not demonstrate with any particularity how they would have
aided him. Even on appeal, he makes conclusory statements, not the required
showing of prejudice.”); U.S. v. Sims, 617 F.2d 1371, 1375 (9th Cir. 1980) (“Sims
has not shown how his cross-examination of the eyewitness was any less effective
without the services of the expert. He also has not shown how the expert could
have assisted the defense in any other way.”).

                                          4
little evidence in the record to suggest that anything a psychologist could have said

might have made a difference to the district court’s sentence, given the district

court’s focus on her recidivism despite its awareness and consideration of Lipkins’

personal and mental issues.

      Because Lipkins has neither shown that the psychologist was required nor

that she was prejudiced by the lack of assistance, her sentence is AFFIRMED.




                                          5
