                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 07 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30034

              Plaintiff - Appellee,              D.C. No. 1:13-cr-00065-BLW-1

 v.
                                                 MEMORANDUM*
ELAINE MARTIN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                             Argued and Submitted
                        May 5, 2015—Seattle, Washington

Before: GOULD and CHRISTEN, Circuit Judges and BLOCK,** Senior District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Elaine Martin appeals her convictions for fraud offenses related to her

participation in government programs designed to benefit disadvantaged

businesses. We have jurisdiction under 28 U.S.C. § 1291. We affirm.1

      1.     The district court did not abuse its discretion in admitting expert

testimony about the requirements of the government programs. See United States

v. McFall, 558 F.3d 951, 960 (9th Cir. 2009). Moreover, we see no merit to

Martin’s arguments that there was structural error or a due process violation as a

result of the challenged evidence ruling. The expert testimony was introduced to

show materiality, i.e., how, based on the rules governing the programs, particular

statements—or misstatements—would tend to influence administrators’ decisions.

Materiality is a question of fact, United States v. Gaudin, 515 U.S. 506, 514

(1995), and government experts often testify about how government programs

work and what statements influence administrators’ decisions, see, e.g., United

States v. Peterson, 538 F.3d 1064, 1068, 1073 (9th Cir. 2008) (HUD official

testifying as expert that the government relied on information submitted by

defendant to determine whether it would insure a loan); United States v.

Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001) (government officials testifying



      1
               In a concurrently filed opinion, we vacate Martin’s convictions for
filing false tax returns, as well as her sentence.
                                          2
about what factors are material in determining whether to grant immigrant visas).

The government’s experts testified that an applicant’s assets were among the

factors that determined program eligibility and that misrepresentation of the assets

could affect a decision. The evidence about Martin’s backdating a real estate

transaction and misstating her assets in her personal statement could support the

jury’s conclusion that Martin lied about her net worth, and that those lies were

material to the government’s decision to admit her for participation in the

programs for disadvantaged contractors.

      2.     The district court did not plainly err in permitting the government to

comment in its rebuttal argument at closing that the jury could infer guilt from

documents even though Martin and her co-defendant, Daniel Swigert, who

authored most of the documents, did not testify. There is no Fifth Amendment

violation where the government’s “reference to the defendant’s opportunity to

testify is a fair response to a claim made by defendant or his counsel.” United

States v. Robinson, 485 U.S. 25, 32 (1988); see also United States v. Norwood, 603

F.3d 1063, 1067–70 (9th Cir. 2010) (as amended) (holding that there was no Fifth

Amendment violation where defendant complained of police failure to test

evidence and the government responded that defendant had never alerted police to

facts that would have prompted the test).


                                            3
      Here, the government’s challenged comments followed and were prompted

by Martin’s suggestion at closing that the government was afraid to present a

witness with personal knowledge of the documents being discussed. This is

allowed under Robinson and Norwood.

      3.     Except for evidentiary errors discussed in the concurrently filed

opinion, we reject Martin’s contentions related to specific alleged errors as well as

her cumulative error claim.

      AFFIRMED.




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