                                                                          FILED
                           NOT FOR PUBLICATION                             JUL 29 2010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. 09-10103

             Plaintiff - Appellee,              DC No. CR 07-00159 (OWW)

  v.                                            MEMORANDUM *

TERRY L. HAYES,

             Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wagner, District Judge, Presiding

                       Argued and Submitted June 15, 2010
                            San Francisco, California

Before:      SCHROEDER and BYBEE, Circuit Judges, and GONZALEZ, **
             District Judge.


       Terry L. Hayes appeals his jury convictions and sentences for nine counts of

mail fraud and aiding and abetting, 18 U.S.C. §§ 1341 and 2, and one count of theft

of government property and aiding and abetting, 18 U.S.C. §§ 641 and 2, by


       * This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
       ** The Honorable Irma E. Gonzalez, Chief District Judge for the Southern
District of California, sitting by designation.
concealing his return to work from the Social Security Administration (“SSA”)

while continuing to receive disability benefits. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm. The parties are aware of the facts, and we do not

restate them here.

      The evidence was sufficient to establish that Hayes knowingly concealed a

material fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The government

presented substantial evidence that Hayes knowingly concealed the full extent of

his employment between September 2000 and September 2003. Although the

SSA’s investigation in 2002 revealed some of Hayes’ earnings, the SSA never

learned the full extent of his employment or earnings until after it issued the

benefit checks that form the basis of Hayes’ convictions. Thus, Hayes’ failure to

report his employment had “a natural tendency to influence” the decision of the

SSA to issue the checks to Hayes, and his concealment of his employment was

therefore material. See Kungys v. United States, 485 U.S. 759, 770 (1988).

      There was no abuse of discretion in the district court’s exclusion of expert

testimony regarding Hayes’ cognitive disorder, impaired memory, difficulty

managing his finances, and the extent of his anxiety disorders. The expert was

permitted to testify as to Hayes’ relevant impairments. The district court only

excluded testimony about conclusions that were not supported by the expert’s



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report or that would not have assisted the jury in determining whether Hayes knew

he had a duty to report his return to work to the SSA. See Fed. R. Evid. 702;

United States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997).

      The evidence of Hayes’ previous use of his son’s social security number was

properly admitted under Federal Rule of Evidence 404(b). See United States v.

Gonzalez, 307 F.3d 906, 909 (9th Cir. 2002). Also, the district court did not abuse

its discretion in excluding evidence that Hayes received disability payments after

he was indicted or in refusing to take judicial notice of 42 U.S.C. §§ 653 and 653a.

See id.

      The record supported all the facts and inferences that were argued by the

prosecutor in closing argument. There was no misconduct, and therefore, no plain

error. See United States v. Olano, 507 U.S. 725, 732 (1993).

      The district court did not err in imposing an enhancement under U.S.S.G. §

2B1.1(b)(1)(D), because the record established that there was a loss of more than

$30,000. See Gall v. United States, 552 U.S. 38 (2007).

      Because there was no error, no cumulative error exists. See Parle v.

Runnels, 505 F.3d 922, 928 (9th Cir. 2007).

      AFFIRMED.




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