                                                                               FILED
                            NOT FOR PUBLICATION                                SEP 24 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10404

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00273-MMD-
                                                 GWF-1
  v.

OUDOM SOMEE,                                     MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Miranda Du, District Judge, Presiding

                          Submitted September 10, 2014**
                             San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

       Oudom Somee was charged with conspiracy to recruit straw buyers for real

property, help the buyers fill out fraudulent mortgage applications to obtain favorable

rates, and transfer some of the money escrowed during closings into bank accounts


        *
             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).
Somee controlled. Somee appeals his convictions for mail fraud, wire fraud, bank

fraud, and conspiracy. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      The district court excluded Somee’s expert witness, Dr. Kinsora, from testifying

about Somee’s claimed diminished mental capacity. The court’s ruling was based on

two grounds: first, Somee’s failure to provide a description of “the witness’s opinion,

the bases and reasons for those opinions, and the witness’s qualifications[,]” as

required by Federal Rule of Criminal Procedure 16; second, Somee’s failure to

demonstrate the reliability and soundness of the methodology employed by Dr.

Kinsora under Federal Rule of Evidence 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). On appeal, Somee provides no argument

that the district court erred in its Rule 16 ruling. The issue is therefore waived. This

court reviews “only issues which are argued specifically and distinctly in a party’s

opening brief. We will not manufacture arguments for an appellant . . . .” Greenwood

v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (citations omitted). Failure to comply with

Rule 16 was an independent and sufficient basis for exclusion of Dr. Kinsora’s

proposed testimony.

      Somee also claims that the district court erred by not giving his proposed jury

instructions on diminished capacity. We conclude the district court did not abuse its

discretion, because the district court’s conclusion that there was insufficient evidence


                                           2
to warrant such instructions was not illogical, implausible, or unsupported by the

record. United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).

Somee’s testimony about his childhood head injury and his poor English skills did not

suggest he was incapable of forming the requisite specific intent to commit the crimes.

      AFFIRMED.




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