FILED

NOT FOR PUBLICATION SEP 01 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-10403

Plaintiff - Appellee, D.C. No. 3:09-cr-00057-VRW-1

v.

MEMORANDUM*

ELISA MONIQUE LIPKINS,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, Chief District Judge, Presiding

Argued and Submitted August 10, 2010 San Francisco, California

Before: GRABER, CALLAHAN and BEA, Circuit Judges.

Elisa Lipkins (“Lipkins”) appeals from her sentence for bank robbery on the

ground that the district court abused its discretion when it denied her ex parte

request for funds for a psychologist to examine her in advance of her sentencing.1

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1 Because the parties are familiar with the facts of this case, we repeat them here only as necessary to the disposition of this case. To prevail under the standards set forth in the Criminal Justice Act, 18 U.S.C.

§ 3006A(e)(1) Lipkins has the burden of showing both that “(1) reasonably

competent counsel would have required the assistance of the requested expert for

a paying client, and (2) [she] was prejudiced by the lack of expert assistance.”

United States v. Rodriguez-Lara, 421 F.3d 932, 939 (9th Cir. 2005) (abuse of

discretion standard). (emphasis added). We hold that the district court did not

abuse its discretion when it determined that Lipkins did not meet this burden and

therefore affirm.

We first consider whether the funds for the psychologist were required. See

United States v. Chase, 499 F.3d 1061, 1066-68 (9th Cir. 2007) (noting that “[t]he

court’s inquiry into the necessity of services must be specific to the facts of the

particular case”). This focus is important because if the test were simply whether

reasonably competent counsel would hire an expert if funds were available, the test

would be meaningless as the answer would virtually always be yes. In both Chase

and Rodriguez-Lara, we held that the requested funds were necessary because

some aspect of the defendants’ cases depended on the type of information that only

an expert could provide. See Chase, 499 U.S. at 1065-68 (funds for expert were

necessary in sentencing hearing involving drug estimation because the sentence

depended primarily on the quantity of narcotics attributed to the defendant);

2 Rodriguez-Lara, 421 F.3d at 946 (finding funds for an expert during trial were

necessary where “the defendant has alleged a dispositive defense that is supported

in substantial measure by the evidence available, but which cannot be fully

developed without the help of an expert”).

Here, Lipkins sought funds for a psychologist who, having examined her,

might proffer an opinion that might mitigate her sentence.2 Moreover, unlike the

requests in both Chase and Rodriguez-Lara, Lipkins’ request was based on

speculation that the expert might have some unspecified effect, rather than on a

showing that without the expert’s assistance she could not prove a dispositive

issue. We note that Lipkins did not raise an insanity defense at trial or argue that

any aspect of her sentencing depended on an assessment of her mental issues.

Lipkins’ lengthy criminal history encompasses twenty pages of the

Presentence Report (“PSR”). The PSR also detailed her extensive history of

family issues, personal traumas and reported mental problems. At sentencing, the

district court acknowledged Lipkins’ personal issues. The court, however, focused

2 Lipkins’ ex parte request for funds did not explain her theory for how her asserted mental issues were connected to her criminal activities, stating only that “a psychological evaluation would help determine the appropriate sentence by providing the court with a more complete picture of Ms. Lipkins’ prior experiences and mental health challenges.” In particular, Lipkins presented no evidence or argument in the request for funds, or in her argument to this court, that her mental issues could cause criminal behavior or recidivism.

3 on her recidivism and the proper means to prevent future criminal activities which

led the court to an upward departure from the range recommended by the

Sentencing Guidelines. During the sentencing phase, no one disputed that Lipkins

had mental health issues. The PSR recommended that Lipkins should receive

mental health treatment as a condition of her supervised release, the government

did not object to this recommendation, and the district court ordered the treatment.

In light of the PSR’s thorough review of Lipkins’ personal history and the

district court’s consideration of her personal and mental issues, we conclude that

Lipkins has not demonstrated that a psychologist was required to address some

component of the district court’s sentencing determination.

Our second inquiry is whether “the defendant was prejudiced by the lack of

expert assistance.” Rodriguez-Lara, 421 F.3d at 946. “The prejudice cannot be

merely speculative; it must be demonstrated by clear and convincing evidence.”

Chase, 499 F.3d at 1068. Unlike either Rodriguez-Lara or Chase, where we

concluded that an expert was necessary and could have been dispositive of a key

issue in the case, here there is only speculation that an expert might have been able

4 to dissuade the judge from the upward departure from the Guidelines.3 Although

Lipkins’ burden to show prejudice may be relatively minimal, there is little

evidence in the record to suggest that anything a psychologist could have said

might have made a difference to the district court’s sentence, given the district

court’s focus on her recidivism despite its awareness and consideration of Lipkins’

personal and mental issues.

Because Lipkins has neither shown that the psychologist was required nor

that she was prejudiced by the lack of assistance, her sentence is AFFIRMED.

3 Furthermore, the fact that in the abstract an expert might have been helpful, is insufficient to demonstrate prejudice by clear and convincing evidence. See, e.g., U.S. v. Becerra, 992 F.2d 960, 965-66 (9th Cir. 1993) (finding the district court did not err in denying requested funds and noting that in the defendant’s “motion for funds, he merely concludes that the tapes will be helpful to his defense. He does not demonstrate with any particularity how they would have aided him. Even on appeal, he makes conclusory statements, not the required showing of prejudice.”); U.S. v. Sims, 617 F.2d 1371, 1375 (9th Cir. 1980) (“Sims has not shown how his cross-examination of the eyewitness was any less effective without the services of the expert. He also has not shown how the expert could have assisted the defense in any other way.”).

5

FILED

United States v. Lipkins, No. 09-10403 SEP 01 2010

MOLLY C. DWYER, CLERK

GRABER, Circuit Judge, dissenting: U.S. COURT OF APPEALS

I respectfully dissent. The district court abused its discretion in two ways.

See United States v. Rodriguez-Lara, 421 F.3d 932, 939 (9th Cir. 2005) (holding

that we review a decision of this kind for abuse of discretion).

First, the district court did not apply the standard set out in United States v.

Chase, 499 F.3d 1061 (9th Cir. 2007). There, we held that the relevant "‘statute

requires the district judge to authorize [expert] defense services . . . in

circumstances in which a reasonable attorney would engage such services for a

client having the independent financial means to pay for them.’" Id. at 1066

(alterations in original) (quoting United States v. Bass, 477 F.2d 723, 725 (9th Cir.

1973)); see also United States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996) ("It is

unlikely a reasonably competent attorney would have incurred the expense . . . .").

The district court did not ask whether a reasonable lawyer would have engaged a

psychological expert here and, for that reason, made no findings and gave no

explanation pertinent to the pivotal question. When a district court fails to apply

the correct legal standard, by definition it abuses its discretion. Koon v. United

States, 518 U.S. 81, 100 (1996).

Second, on the merits, a reasonable lawyer with a paying client would have

hired an expert to determine the nature and extent of Defendant’s present mental health conditions and to opine as to whether less onerous sentencing options could

equally, or better, protect the public. Competent counsel would have done so to try

to influence the court to consider alternatives to an above-Guidelines sentence and

might have succeeded. Only an expert could have offered a credible opinion (as

distinct from the arguments of lawyers) concerning Defendant’s current mental

health and its relationship to the recommended disposition by the court. In the

absence of such information, counsel could not say what the information would be,

but certainty is not required in order to establish prejudice.

For those reasons, I dissent.

2