                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 05 2010

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50218

             Plaintiff - Appellee,               D.C. No. 2:08-cr-00894-SJO-1

  v.
                                                 MEMORANDUM *
KIM N. POUNDS,

             Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                           Submitted February 2, 2010 **
                              Pasadena, California

Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.

       Kim N. Pounds (“Pounds”) appeals from a judgment of the district court in

which she was convicted of fifteen counts of mail fraud under 18 U.S.C. § 1341

and sentenced to a year and a day in prison, followed by five years of supervised


        *
             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).
release.1 She contends the district court abused its discretion and otherwise erred

in its decisions extending from pretrial through sentencing. We affirm.

      First, the district court did not abuse its discretion when it denied Pounds’

motion in limine and permitted the admission of evidence of the loss amounts.

United States v. Reed, 575 F.3d 900, 920 (9th Cir. 2009). The district court could

reasonably conclude that evidence of the loss was relevant to prove the elements of

mail fraud, was relevant to show “proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident,” and was not unduly

prejudicial. See Fed. R. of Evid. 401-404.

      Second, it was not plain error for the district court to permit the

government’s statements about the loss amounts in closing argument as they were

neither inconsistent with the government’s prior statements nor unduly prejudicial

and Pounds did not object to these statements before the district court. United

States v. Brown, 327 F.3d 867, 871 (9th Cir. 2003).

      Third, the district court did not abuse its discretion when it permitted

Michael Kennedy to testify that someone who lived New Orleans but moved to

California eleven months before Hurricane Katrina would not be eligible for



      1
             The parties are familiar with the facts of this case and we repeat them
here only as necessary.

                                           2
FEMA disaster assistance. This testimony was rationally based on his perceptions

as a FEMA employee, was helpful to determination of a fact in issue (the primary

residence requirement) and was not based on specialized information within the

scope of Rule 702. United States v. Matsumaru, 244 F.3d 1092, 1101-02 (9th Cir.

2001).

         Fourth, the district court did not abuse its discretion when it admitted

evidence of Pounds’ other applications for FEMA disaster assistance and allegedly

permitted the government to misuse that evidence. Pounds agreed to the

introduction of this evidence with the limiting instruction and the district court

could reasonably conclude that the government’s use of the evidence was

consistent with the limiting instruction.

         Fifth, the district court did not commit plain error when it imposed an

occupational restriction as a condition of Pounds’ supervised release and Pounds

did not object before the district court. United States v. Vega, 545 F.3d 743, 747

(9th Cir. 2008); see also United States v. Goddard, 537 F.3d 1087, 1091-92 (9th

Cir. 2008). The condition, which prohibited her from obtaining any employment

without prior approval of her Probation Officer, was based on her admitted drug

use, as well as her homicidal and suicidal thoughts. It did not prevent her from




                                             3
working in any particular occupation, was reasonably related to protecting the

public, and was limited to the term of her supervised release.

      Finally, because the written judgment did not directly conflict with the oral

judgment, but rather clarified ambiguities, there is no need to remand with

instructions that the district court conform the written judgment to the oral

pronouncement of sentence. Taylor v. Reno, 164 F.3d 440, 445-47 (9th Cir. 1998).

             AFFIRMED.




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