                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 1 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50424

                Plaintiff-Appellee,             D.C. No. 2:16-cr-00266-PA-1

 v.
                                                MEMORANDUM*
KIM DENISSE SCOVIS,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                       Argued and Submitted July 10, 2018
                              Pasadena, California

Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,** District
Judge.

             Kim Denisse Scovis appeals her jury conviction and sentence for theft

of government property in violation of 18 U.S.C. § 641. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable P. Kevin Castel, United States District Judge for the
Southern District of New York, sitting by designation.
             1.     Sufficiency of the Evidence. Sufficient evidence supports Kim

Scovis’s conviction for stealing money belonging to the Social Security

Administration (“SSA”) in violation of 18 U.S.C. § 641. “To obtain a conviction

under § 641, the government must prove the following four elements: (1) the

defendant embezzled, stole, purloined, or knowingly converted to [her] use or the

use of another; (2) things of value; (3) the things of value were federal money or

property worth more than [$1,000]; and (4) the defendant did such acts willfully

and with the intent to appropriate the property to a use inconsistent with the

owner’s rights and benefits.” United States v. Seaman, 18 F.3d 649, 650 (9th Cir.

1994); 18 U.S.C. § 641.

             Viewed in the light most favorable to the government, there was

sufficient evidence for a rational juror to find Scovis guilty of violating § 641

beyond a reasonable doubt. See United States v. Nevils, 598 F.3d 1158, 1163-64

(9th Cir. 2010) (en banc).

             The evidence adduced at trial showed that Kim Scovis’s grandmother,

Mary Scovis, died in March 2004, but that the SSA continued to deposit retirement

insurance benefits into a Citibank account in Mary Scovis’s name until November

2012. From 2006 to 2012, Citibank addressed monthly statements for that account

to Kim Scovis’s home address. An SSA investigator testified that Kim Scovis

recounted a January 2012 conversation in which a Citibank employee told Kim


                                           2
Scovis and her mother, Jenny Scovis, that the funds in Mary’s account had been

deposited by the SSA.

             There was evidence that on November 27, 2012, Kim Scovis and

Jenny Scovis visited a Citibank branch in Thousand Oaks, California. Jenny

Scovis and Kim Scovis both executed paperwork to open a new joint bank account,

and Jenny Scovis signed papers to close Mary Scovis’s account and transfer its

holdings of $68,048.24 to the new joint account. The SSA investigator testified

that Kim Scovis informed her that she and her mother initiated these transactions

after learning that Citibank’s legal department intended to close Mary Scovis’s

account. A rational juror could have found beyond a reasonable doubt that the

transfer of the balance from Mary Scovis’s account to the joint account on

November 27 effectuated the theft of SSA funds by Kim Scovis, which she

undertook in concert with her mother.

             The government also offered evidence tending to show Kim Scovis’s

intent to appropriate the property for a use inconsistent with the SSA’s rights to the

money. On November 28, 2012, one day after the joint account was opened, three

withdrawals in the amounts of $5,000, $500 and $122.75 were made on Kim

Scovis’s debit card. Additionally, the government introduced evidence of four

checks written to Kim Scovis from her deceased grandmother’s bank account and

signed in the grandmother’s name. All checks were made either to Kim Scovis


                                          3
personally or to her law office. Three of the checks were dated 2009 and endorsed

by Kim Scovis, and the fourth was dated November 21, 2012, and was not

endorsed. Given that these checks were purportedly signed by a person she knew

to be deceased, they were additional, non-propensity evidence going toward

Scovis’s intent to take money from an account that did not belong to her or her

mother, and toward the opportunity that she had to do so.

             We therefore conclude that there was sufficient evidence for a rational

juror to find beyond a reasonable doubt that Kim Scovis was guilty of violating 18

U.S.C. § 641. For the same reasons, we conclude that the district court’s denial of

Scovis’s post-trial motion for acquittal pursuant to Federal Rule of Criminal

Procedure 29 was not in error.

             2.    Evidentiary Rulings. Where challenges to a district court’s

evidentiary rulings have been preserved, “we review the district court’s rulings for

an abuse of discretion, and uphold them unless they are ‘illogical, implausible, or

without support in inferences that may be drawn from the facts in the record.’”

United States v. Gadson, 763 F.3d 1189, 1199 (9th Cir. 2014) (quoting United

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

             First, the district court did not err or abuse its discretion by admitting

into evidence the four checks from Mary Scovis’s bank account that were written

either to Kim Scovis or her law firm in 2009 and 2012. Under Federal Rule of


                                           4
Evidence 404(b), it was within the district court’s discretion to conclude that these

checks were non-propensity evidence of her opportunity and intent to access SSA

funds deposited into Mary Scovis’s account. See United States v. Vo, 413 F.3d

1010, 1018-19 (9th Cir. 2005).

             Second, the district court did not err or abuse its discretion by

excluding certain out-of-court statements made by Jenny Scovis, which Kim

Scovis moved to admit as statements against interest under Federal Rule of

Evidence 804(b)(3). In weighing a Rule 804(b)(3) application, “the exculpatory

statements of family members ‘are not considered to be highly reliable.’” Gadson,

763 F.3d at 1200 (quoting LaGrand v. Stewart, 133 F.3d 1253, 1268 (9th Cir.

1998)). The government also proffered that Kim Scovis’s sister, Teena, would

have testified that Jenny Scovis suffered from cognitive and memory disorders,

possibly including transient ischemic attacks and dementia. This further

undermines the trustworthiness of Jenny Scovis’s statements.

             Third, the district court did not err or abuse its discretion by excluding

evidence of a purported handwritten will authored by Mary Scovis. Defense

counsel attempted but failed to lay a foundation for its admission through questions

to an SSA agent who was unfamiliar with the document’s origins or veracity. See

Fed. R. Evid. 901(a).




                                          5
             Fourth, the district court did not err or abuse its discretion in

excluding evidence concerning Jenny Scovis’s misdemeanor forgery conviction in

1982 or evidence of professional disciplinary penalties imposed by the California

state bar in 2011 and 2012. The district court did not abuse its discretion in

concluding that this evidence was not relevant to Jenny Scovis’s intent or

knowledge under Rule 404(b), or otherwise admissible.

             Fifth, the district court did not err or abuse its discretion when, during

cross-examination, it limited defense counsel’s questions to a government witness

about the SSA’s data-entry procedures. Defense counsel explained that his

questions were intended to establish that any report of Mary Scovis’s death by Kim

Scovis to the SSA may have gone unrecorded. At that point in the trial, there was

no evidence that Kim Scovis had reported her grandmother’s death to the SSA,

and, indeed, no such evidence was ever offered by defendant. The district court’s

ruling did not make a blanket exclusion of any evidence of such a report on her

direct case. None was offered.

             3.    Subpoena Applications. The district court did not abuse its

discretion by denying Kim Scovis’s application for subpoenas to the California

State Teachers Retirement System (“CALSTRS”) and Los Robles Medical Center

(“Los Robles”). “Federal Rule of Criminal Procedure 17(c) requires a showing of

relevancy, admissibility, and specificity to support the issuance of a subpoena


                                           6
duces tecum.” United States v. Komisaruk, 885 F.2d 490, 494 (9th Cir. 1989). The

application must be brought in good faith and “not intended as a general ‘fishing

expedition.’” United States v. Nixon, 418 U.S. 683, 699 (1974).

             The subpoena application directed to CALSTRS sought “[a]ny and all

documents” related to Mary Scovis, including a record of benefits payments and

any correspondence with Jenny Scovis. Kim Scovis argued that any such benefits

payments were evidence that Mary’s bank account held funds from a source other

than the SSA, and that CALSTRS may have conducted an investigation that found

Jenny Scovis exercised control over Mary’s account. The district court offered to

approve a subpoena limited to CALSTRS payments from 2006 to 2009 – a time

period specified in the attorney declaration – but counsel explained that he was

seeking earlier records, as well as information about a possible CALSTRS

investigation of Jenny. The district court did not abuse its discretion in denying the

application on the grounds that the defendant failed to make a showing of

specificity or relevance, and that the application was a “fishing expedition.”

             The district court also did not abuse its discretion in denying the

application to Los Robles, which sought information related to Jenny Scovis’s

medical treatment. The district court did not abuse its discretion in denying the

application on grounds that it lacked specificity and relevance, and was also a

“fishing expedition.”


                                          7
             4.    The “Mere Presence” Instruction. The district court did not err

by refusing to include the “mere presence” instruction requested by Kim Scovis.

“A party’s claim that the district court’s instructions did not adequately cover the

theory of the defense is reviewed de novo.” United States v. Tucker, 641 F.3d

1110, 1122 (9th Cir. 2011). A defendant is entitled to an instruction on her theory

of defense, so long as it has support in law and some basis in the evidence. Id.

             A “mere presence” defense asserts that a defendant was present at the

scene of a crime but had no knowledge or control as to its commission. See United

States v. Castillo, 866 F.2d 1071, 1086-88 (9th Cir. 1988). “A district court may

properly refuse to give a ‘mere presence’ instruction when the government’s case

rests on ‘more than just a defendant’s presence, and the jury is properly instructed

on all elements of the crime.’” United States v. Reed, 575 F.3d 900, 925 (9th Cir.

2009) (quoting United States v. Howell, 231 F.3d 615, 629 (9th Cir. 2000)).

             As discussed, the government’s case relied on more than Kim

Scovis’s presence at the Citibank branch on November 27, 2012. It included

evidence that she signed paperwork to open the joint bank account that received

the fund transfer from her deceased grandmother’s account; that she opened the

account after learning that Citibank intended to close her grandmother’s account;

that she did so with knowledge that her grandmother’s account consisted of funds

deposited by the SSA; and that funds were withdrawn from the new account the


                                          8
next day using her debit card. Because the government’s case included evidence

beyond Scovis’s presence at Citibank, and the district court properly instructed the

jury on the elements of 18 U.S.C. § 641, the failure to give a “mere presence”

instruction was not in error. See Reed, 575 F.3d at 925.

             5.     Constructive Amendment of the Indictment. The district court

did not constructively amend or vary the indictment when it instructed the jury that

Kim Scovis was charged with committing theft of government property “on or

about November 27, 2012,” and instructed the jury on the definition of the phrase

“on or about.” A constructive amendment occurs when a court alters the charging

terms of an indictment, either literally or in effect. United States v. Wilbur, 674

F.3d 1160, 1177-78 (9th Cir. 2012). A variance occurs when the charging terms

are unaltered, but the evidence at trial proves facts that are materially different than

those charged in the indictment. Id.

             The indictment’s text charged Scovis with committing the crime “on

or about November 27, 2012,” which was consistent with the jury instruction. At

trial, the government offered evidence and repeatedly asserted in argument that

Scovis’s crime was the transfer of funds from the account of Mary Scovis to the

account in the joint name of Kim Scovis and Jenny Scovis on November 27. The

district court’s instructions did not expand the scope of the offense to include the

debit-card withdrawals of November 28, evidence of which was only admitted to


                                           9
show Scovis’s intent, knowledge or lack of mistake. The district court instructed

the jury that evidence of acts not charged in the indictment could be considered

only for their bearing on defendant’s intent and opportunity, and for no other

purpose. A jury is presumed to follow a court’s instructions. Weeks v. Angelone,

528 U.S. 225, 234 (2000).

             The “on or about” instruction thus did not invite the jury to find that

the withdrawals of November 28 were the crime charged itself or any element of

that crime, and was not a constructive amendment or variance of the indictment.

             6.     The Right to Present a Defense. The cumulative effect of the

district court’s evidentiary rulings did not deprive Scovis of her constitutional right

to present a defense. See Gadson, 763 F.3d at 1200-01. In certain instances, the

cumulative effect of a court’s rulings may deprive a defendant of the right to

present a defense, but a defendant’s right to present evidence “is subject to

reasonable restrictions” and the exclusion of evidence is unconstitutional “only

where it has infringed upon a weighty interest of the accused.” Id. (quoting United

States v. Scheffer, 523 U.S. 303, 308 (1998)).

             For the reasons largely explained, the district court’s rulings were

reasonable restrictions on the defense, and do not infringe upon a “weighty

interest” of constitutional dimensions. Further, as discussed, the excluded

evidence did not have the “persuasive assurances of trustworthiness” or “constitute


                                          10
critical exculpatory evidence,” the exclusion of which can undermine the right to

present a defense. Gadson, 763 F.3d at 1201 (quotation marks omitted).

            AFFIRMED.




                                        11
