                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 24 2012

                                                                        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. 11-10287

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00422-CRB-3

  v.
                                                 MEMORANDUM *
DORIS AKUYOMA ANYANWU,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-10299

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00422-CRB-1

  v.

HYACINTH UDEH,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                        Argued and Submitted June 13, 2012
                             San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before:      HUG, RAWLINSON, and IKUTA, Circuit Judges.

      Doris Anyanwu and Hyacinth Udeh appeal convictions resulting from their

involvement in a mortgage fraud scheme. Anyanwu also appeals the fine imposed

on her at sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.1

      Both Anyanwu and Udeh argue that there was no evidence of deliberate

ignorance and that the district court therefore erred when it provided the jury with a

deliberate ignorance instruction. The district court did not abuse its discretion

when it provided the instruction because the jury rationally could have found that

both Anyanwu and Udeh were deliberately ignorant even if it rejected the

government’s evidence of actual knowledge.2 See United States v. Heredia, 483

F.3d 913, 922 (9th Cir. 2007) (en banc).

      Anyanwu contends that the deliberate ignorance jury instruction improperly

shifted the burden of proof to her by requiring her to disprove deliberate ignorance,



      1
       Because the parties are familiar with the facts underlying this appeal, we do
not recount the facts here.
      2
        Anyanwu makes a very conclusory argument that there was insufficient
evidence to prove the element of knowledge for each of her convictions.
Examining the evidence in the light most favorable to the government, see United
States v. Freter, 31 F.3d 783, 785 (9th Cir. 1994), we hold that there was sufficient
evidence of knowledge for all the counts requiring knowledge.

                                           2                                    11-10287
and she further contends that this alleged error constituted a due process violation.

The deliberate ignorance instruction did not shift the burden of proof to Anyanwu.

It merely clarified the circumstances under which the jury was not permitted to

find deliberate ignorance. Such an instruction is permissible. See, e.g., id. at 917,

920.

       Anyanwu argues that, in response to a question from the jury, the district

court provided a legally incorrect supplemental jury instruction for the charges of

making false claims of citizenship in violation of 18 U.S.C. § 911. If a jury

requests clarification on an issue, the district court is obligated to clear away the

confusion with accuracy. United States v. McIver, 186 F.3d 1119, 1130 (9th Cir.

1999). Anyanwu contends that the district court’s supplemental instruction

improperly stated the elements of § 911 because it twisted the plain statutory

meaning of the word “directly” to mean “indirectly.” This argument lacks merit

because the statutory language does not include the word “directly.” See 18 U.S.C.

§ 911. The district court’s instruction is consistent with § 911 and our case law.

See id.; Chow Bing Kew v. United States, 248 F.2d 466, 469-71 (9th Cir. 1957). In

addition, the district court properly understood that the jury was confused about

whether the law required the defendant herself to physically check the box stating

that she was a United States citizen, and the court accurately informed the jury that


                                            3                                      11-10287
she was not required to do so. See Chow Bing Kew, 248 F.2d at 469-71; cf. United

States v. Bellucci, 995 F.2d 157, 159 (9th Cir. 1993); United States v. Olano, 934

F.2d 1425, 1435-36 (9th Cir. 1991), rev’d on other grounds, 507 U.S. 725 (1993).

Moreover, the district court properly instructed the jury on the requisite mens rea

element, instructing the jury that the government was required to prove that the

defendant made the false representation wilfully. See 18 U.S.C. § 911; United

States v. Karaouni, 379 F.3d 1139, 1142 (9th Cir. 2004). The supplemental jury

instruction did not change this “wilfully” instruction.

      Anyanwu next argues that the district court violated the Sixth Amendment’s

Confrontation Clause by refusing to permit her attorney to conduct a full cross-

examination of one of the special agents during the government’s case-in-chief and

requiring instead that Anyanwu’s counsel recall the witness and examine her during

the defendants’ case-in-chief. We reject this argument because a limitation on

cross-examination does not violate the Confrontation Clause unless it limits

relevant testimony and prejudices the defendant. See United States v. Bensimon,

172 F.3d 1121, 1128 (9th Cir. 1999). The district court’s ruling here neither limited

relevant testimony nor prejudiced Anyanwu; the court merely determined when

Anyanwu was permitted to elicit the testimony.




                                           4                                    11-10287
      Both Anyanwu and Udeh contend that the district court should have

dismissed the indictment based on a presumption of vindictiveness because they

were indicted in the instant case after Anyanwu exercised her rights to trial and

appeal in a previous case involving different conduct and different charges. We

reject this contention because such routine procedural actions are not sufficient to

warrant a presumption of vindictiveness, especially because the investigation in the

instant case did not begin until after Anyanwu was indicted in the previous case and

because that investigation was still ongoing during the prosecution of the previous

case. See United States v. Goodwin, 457 U.S. 368, 373, 381-83 (1982); United

States v. Gallegos-Curiel, 681 F.2d 1164, 1168-71 (9th Cir. 1982).

      Anyanwu argues that the $75,000 fine imposed on her at sentencing is

unreasonable because she is unable to pay the fine. Given the evidence of

Anyanwu’s assets and her failure to provide requested financial documentation to

the Probation Office, the district court did not clearly err by holding that Anyanwu

failed to meet her burden of proving that she was unable to pay the fine. See

U.S.S.G. § 5E1.2(a); United States v. Orlando, 553 F.3d 1235, 1239-40 (9th Cir.

2009). Moreover, the $75,000 fine was not unreasonable. See Orlando, 553 F.3d at

1239-40.




                                           5                                    11-10287
      Finally, when the district court imposed the fine, it provided an explanation

that was sufficient to permit meaningful appellate review. See id. at 1239; United

States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

      AFFIRMED.




                                          6                                    11-10287
