Appeal from the United States District Court for the Central District of California
Page 994.
, Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-01-00092-AHS.
Before: KOZINSKI and TROTT, Circuit Judges, and SAND, District Judge.
The Honorable Leonard B. Sand, Senior United States District Judge for the Southern District of New York, sitting by designation.
MEMORANDUM
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
1. The district court did not abuse its discretion in excluding expert testimony about battered woman syndrome (BWS). Even if the expert had testified that Andrews suffered from BWS, which is unclear, such evidence was not offered to establish duress, a defense Andrews abjured. Nor did Andrews notify the government that she would be presenting expert testimony for the purpose of establishing a mental disease or defect. See Fed.R.Crim.P. 12.2(b). Any expert testimony about BWS thus had no bearing on whether Andrews had aided and abetted Clody's fraudulent use of counterfeit credit cards. Under these circumstances, the district court did not abuse its discretion by excluding such testimony, and its exclusion was in any event harmless.
2. In view of Andrews's handwritten notes containing information about the victims, her "spending spree" notes and testimony about purchases made at J.C. Penny, there was sufficient evidence for the jury to find that she was a participant in Clody's crimes, rather than an innocent bystander.
3. Consistent with United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.2005) (en banc), we "remand to the district court ... for the [limited] purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory." Id. at 1074.
AFFIRMED IN PART; REMANDED IN PART.