NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 14 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 15-50306

Plaintiff-Appellee, D.C. No. 8:14-cr-00110-JLS-2 v.

THERESA FISHER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding

Argued and Submitted August 29, 2016 Pasadena, California

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

Defendant-appellant Theresa Fisher contends that the district court

committed several errors that individually and cumulatively created sufficient

prejudice to warrant a new trial. We disagree and therefore affirm her conviction.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 4 1. We agree with Fisher that the district court should not have admitted the

portion of Lindsay Hardgraves’ confession that inculpated Fisher. Because

Hardgraves did not testify at trial, admission of that portion of her confession

violated Fisher’s Confrontation Clause rights. See Bruton v. United States, 391

U.S. 123, 126 (1968). However, Fisher did not object to admission of this

evidence at trial, so we may review only for plain error. Even assuming that the

error was clear and obvious, Fisher cannot show that admission of this evidence

affected her substantial rights. See United States v. Olano, 507 U.S. 725, 734

(1993). The government’s case against Fisher was strong, predicated in part on the

following evidence: testimony by five witnesses who claimed to have been

coached by Fisher; testimony by a co-conspirator that both she and Fisher were

pressured to bring in patients for insurance-covered procedures; forged doctors’

notes with Fisher’s handwriting; text messages between Fisher and patients

regarding insurance coverage for cosmetic procedures; and recordings of Fisher on

the phone with one of the patients discussing insurance coverage. This evidence

overwhelmingly implicated Fisher in the mail fraud scheme. As a result, we

cannot say that the Bruton error affected Fisher’s substantial rights.

2. The videotape of Fisher’s meeting with the undercover agent was

admissible, notwithstanding the government’s erroneous hearsay objection. We Page 3 of 4 will assume that Fisher properly sought to introduce the videotape. Nonetheless,

we conclude that exclusion of the tape was harmless error given the government’s

strong case against Fisher.

Even when combined with the Bruton error mentioned above, the error in

excluding the videotape does not warrant a new trial. The government has shown,

based on the strength of the evidence presented at trial, that it is more probable

than not that these two errors “did not materially affect the verdict.” See United

States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005).

3. The district court did not err in giving a deliberate avoidance instruction.

A deliberate avoidance instruction may be given when a criminal statute requires

that the defendant acted “knowingly,” as is the case here. See United States v.

Jewell, 532 F.2d 697, 702–04 (9th Cir. 1976) (en banc). Fisher argues that the jury

might have convicted her merely upon finding that she deliberately avoided

learning that the procedures were not medically necessary, without also finding

that she knew the procedures were fraudulently billed to insurance companies.

This argument ignores the fact that the jury was required to find that Fisher acted

with an “intent to defraud” in addition to finding that she acted knowingly. In

order to find an intent to defraud, the jury must have found that Fisher intended to

defraud someone or something, and in this case that was the insurance companies. Page 4 of 4 4. Fisher contends that under Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), the jury was required to find the facts that form the basis for the restitution

determination. This argument is foreclosed by our decisions in United States v.

Green, 722 F.3d 1146, 1149 (9th Cir. 2013), United States v. Eyraud, 809 F.3d

462, 471 (9th Cir. 2015), and United States v. Alvarez, __ F.3d __, 2016

WL4547362 (9th Cir. Sept. 1, 2016). As we noted in Eyraud, Apprendi does not

apply to restitution orders, and Paroline v. United States, 134 S. Ct. 1710, 1726

(2014), does not discredit that holding. 809 F.3d at 471.

AFFIRMED.

FILED

U.S. v. Fisher, 15-50306

SEP 14 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SILVERMAN, Circuit Judge, concurring:

I concur in the result. It would have been error for the district court to have

admitted Hargraves’s statement over a Bruton objection. But there wasn’t any

Bruton objection or any other objection. A party may have perfectly valid reasons

for declining to object to evidence that is technically objectionable, but that causes

no harm in the context of the facts and the theory of the defense. Just as an

appellate lawyer chooses which rulings to challenge on appeal and which ones to

let go, the same is true of trial lawyers and objections. Not every witness has to be

cross-examined; not every evidentiary objection has to be made. Good lawyers

pick their fights.

Why didn’t defense counsel raise a Bruton objection here? The answer is:

We don’t know. Counsel may have had a strategic reason for his decision, or he

may have been asleep at the switch. If it’s the latter, that’s what a § 2255 motion

premised on ineffective assistance counsel is for. However, I don’t agree that it

was error per se for the judge to have admitted testimony that wasn’t objected to,

even if it could have been.