                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 08 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   14-50272

              Plaintiff-Appellee,                D.C. No.
                                                 5:12-cr-00085-VAP
 v.

TERESA DEMINT, a.k.a. Teresa Annette             MEMORANDUM*
Demint, a.k.a. Teresa A. Lind, a.k.a.
Teresa Annett Lind,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Virginia A. Phillips, Chief Judge, Presiding

                      Argued and Submitted August 30, 2016
                              Pasadena, California

Before: SILVERMAN, FISHER, and WATFORD, Circuit Judges.

      Teresa DeMint appeals her conviction after jury trial of seven counts of

causing embezzlement and theft from an employee benefit plan, in violation of 18

U.S.C. § 664. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      On appeal, DeMint challenges various evidentiary rulings at trial, claiming

that they were caused by the district court’s misapprehension of the requisite mens

rea. Specifically, she claims that the district court failed to recognize that the

government was required to prove that she acted willfully, i.e. with a fraudulent

intent, bad purpose, or evil motive, to deprive another of property. See United

States v. Wiseman, 274 F.3d 1235, 1240 (9th Cir. 2001) (defendant “must

knowingly act wrongfully to deprive another of property” (alteration in original)

(internal quotation marks omitted)). This contention is belied by the record. The

district court inquired, and was correctly informed, about the requisite mens rea at

the pretrial conference. The district court additionally correctly instructed the jury

as to the willfulness requirement, as DeMint concedes. While the district court

focused many of its evidentiary rulings on whether the proffered evidence was

relevant to DeMint’s knowledge, this was because the defense theory at trial was

that DeMint lacked the requisite mens rea because she did not know that the funds

in question were pension funds. The district court did not misapprehend the

required mens rea; it simply focused its comments on the defense arguments.

      We now take each of DeMint’s claims of evidentiary error in turn. We

review for abuse of discretion the district court’s evidentiary rulings during trial.

See United States v. Alvarez, 358 F.3d 1194, 1216 (9th Cir. 2004); United States v.


                                            2
Vallejos, 742 F.3d 902, 905 (9th Cir. 2014). We will reverse based on abuse of

discretion in evidentiary rulings only if such errors more likely than not affected

the verdict. See United States v. Angwin, 271 F.3d 786, 798 (9th Cir. 2001),

overruled on other grounds in United States v. Lopez, 484 F.3d 1186 (9th Cir.

2007) (en banc).

      DeMint contends that the district court erred in categorically barring her

from presenting evidence that some of the transferred pension funds were used to

pay the company’s business expenses, rather than going to her personal benefit.

There was no such blanket preclusion. While the district court did limit cross-

examination of Special Agent Tim Weston to matters within the scope of his direct

testimony, the record reflects that the district court made clear that DeMint could

present such evidence through other witnesses. Any error would in any event have

been harmless, because evidence that the funds were used for business expenses

was introduced through other witnesses later in the trial, and because the use of

funds for non-pension purposes established, rather than refuted, her guilt. See

United States v. Mett, 178 F.3d 1058, 1068 (9th Cir. 1999) (rejecting argument that

pension funds not willfully misused when utilized for good of company so that

employees may keep their jobs).




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      Nor did the district court err by sustaining a relevance objection to questions

about DeMint’s experience in selling residential real estate. Evidence of DeMint’s

degree of success, or limited success, in mortgage sales more than two decades

earlier had little, if any, evidentiary value in determining whether she was aware

that the funds being transferred out of the pension account were pension funds.

Even if the evidence had some relevance, any error was harmless because DeMint

nonetheless introduced other evidence of her purported lack of sophistication.

      DeMint argues that Richard Clark should have been permitted to testify that

in his opinion DeMint lacked financial sophistication. No offer of proof of what

Clark would have testified to was made. But even assuming Clark would have

testified that he believed DeMint lacked financial sophistication and that such

testimony was lay opinion testimony outside the district court’s prior in limine

ruling, any error in excluding it was harmless. Clark was permitted to testify that

the company would not have been easy to run without a business or financial

background, and DeMint herself testified that she did not have such a background.

The evidence would have been of minimal value in assessing whether DeMint

knew that the funds were pension funds, particularly in light of the more direct

testimony by the company’s controller that he and DeMint discussed the

withdrawals and that the withdrawals were coming from the pension fund.


                                          4
      DeMint argues that the district court erred in excluding evidence that illegal

pension fund withdrawals predated her tenure at the company. However, DeMint

never laid a foundation that she was aware of prior practices regarding the pension

fund. Absent such a foundation, the district court correctly excluded the evidence

on relevance grounds.

      DeMint argues that evidence of prior practices regarding the pension

account was relevant to show that the company’s controller, David Pachon, could

have made the transfers on his own, without DeMint’s knowledge or participation,

simply by continuing a system that was already in place. See United States v.

Cohen, 888 F.2d 770, 776-77 (11th Cir. 1989) (evidence of government witness’s

other prior fraudulent acts could have shown witness “was capable of concocting

and managing the fraudulent scheme without [defendants’] participation”).

However, even if the district court erred in excluding this evidence on relevance

grounds, the error did not more likely than not affect the verdict. The evidence

against DeMint was strong, and evidence that prior management had also at times

made improper transfers from the pension account would not have significantly

altered the evidence supporting her conviction.

      DeMint argues that the district court erred in permitting the government to

introduce evidence that portions of the pension funds were spent on her gambling


                                          5
losses, car, or other personal expenses. Evidence of motive in the form of personal

benefit can be circumstantial evidence that a defendant acted knowingly and

willfully, and evidence that the funds were spent for purposes other than benefit to

the trust was relevant. United States v. Andreen, 628 F.2d 1236, 1245 (9th Cir.

1980) (“Criminal intent may be inferred from proof the actions were unauthorized

or without benefit to the trust, or from evidence that transfers yielded personal

profit to the trustees.”). The evidence was properly admitted.

      DeMint claims that she should have been permitted to elicit additional

testimony about statements she made to Investigator Matt Chandler under the

“Rule of Completeness,” which prevents a party from introducing a “misleadingly

tailored snippet” of a document. United States v. Collicott, 92 F.3d 973, 982-83

(9th Cir. 1996). However, DeMint’s proffer at trial concerning the additional

statements did not show that they contradicted the investigator’s statement. The

investigator’s testimony was not misleading without the additional context; the

additional information confirmed, rather than undermined, that DeMint agreed to

transfer money out of the retirement plan. Given this proffer, the district court did

not err in excluding the evidence on hearsay grounds, and not permitting it to be

introduced under the Rule of Completeness.




                                           6
      DeMint claims that exclusion of her additional statements to Chandler

violated her Confrontation Clause rights. We review de novo alleged violations of

the Confrontation Clause, see United States v. Peterson, 140 F.3d 819, 821 (9th

Cir. 1998), and find no violation here. Precluding a defendant from eliciting

inadmissible hearsay on cross-examination, particularly where the defendant

testifies to the statements herself, does not constitute the type of severe limitation

on cross-examination that violates the Confrontation Clause. United States v.

Ortega, 203 F.3d 675, 683 (9th Cir. 2000).

      Finally, DeMint complains about the cumulative impact of the alleged

errors, and asserts that the district court deprived her of the right to present a

defense. These arguments are without merit.

      AFFIRMED.




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