United States v. Siemens

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2025
• Docket: 24-1482
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 4 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-1482 D.C. No. Plaintiff - Appellee, 6:22-cr-00004-BMM-1 v. MEMORANDUM* NENA HELENE SIEMENS, FKA Nena Susanne Kruger, AKA Nena Susanne Siemens,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, Chief District Judge, Presiding

Submitted April 2, 2025** Portland, Oregon

Before: BYBEE, LEE, and FORREST, Circuit Judges.

Following a four-day jury trial, Defendant-Appellant Nena Helene Siemens

was convicted of defrauding the Government in her applications for Government

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). benefits. She was sentenced to three years of probation and ordered to pay $3,190 in

restitution, a $7,500 fine, and a $300 assessment. On appeal, Siemens challenges her

conviction and sentence. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. Credit Card Evidence. Siemens argues the district court improperly

admitted her credit card applications and statements into evidence under Federal

Rule of Evidence 403. We generally review a district court’s evidentiary rulings for

abuse of discretion. United States v. Boulware, 384 F.3d 794, 800−01 (9th Cir.

2004). However, where no objection was made at trial, we review for plain error.

United States v. Hardy, 289 F.3d 608, 612 (9th Cir. 2002).

While Siemens objected to the credit card evidence at trial, she did so on

different grounds than she argues on appeal. Because “a party fails to preserve an

evidentiary issue for appeal not only by failing to make a specific objection, but also

by making the wrong specific objection,” we review admission of this evidence for

plain error. United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990)

(citations omitted). And we conclude that the district court properly admitted the

evidence because it was probative to show other potential sources of income that

Siemens failed to disclose to the State in her benefit applications, and because its

probative value was not substantially outweighed by its prejudicial effect. 2. Jury Instructions. Siemens contends the district court erred when it

failed to provide a specific definition of “knowingly” within its instructions on

Counts 1 and 2. We generally review jury instruction challenges de novo. Hunter v.

County of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011). Again, however, where

no objection is made at trial, we review for plain error. United States v. Dipentino,

242 F.3d 1090, 1094 (9th Cir. 2001).

Because Siemens did not object to the jury instructions at trial on the same

grounds that she raises on appeal, we review her jury-instructions challenge for plain

error. See United States v. Peterson, 538 F.3d 1064, 1071 (9th Cir. 2008) (To

preserve an objection to the jury instructions on appeal, a party “must inform the

court of the specific objection and the grounds for the objection before the jury

retires to deliberate.” (citation omitted)). We conclude that the district court did not

commit plain error because the instructions adequately addressed each element of

the offense and Siemens has not alleged how she was prejudiced by the district

court’s decision not to provide duplicate definitions of “knowingly.” See United

States v. Chambers, 918 F.2d. 1455, 1460 (9th Cir. 1990) (concluding the district

court did not plainly err when it chose not to define “knowingly” because it “is a

common word which an average juror can understand and which the average juror

could have applied to the facts of this case without difficulty”). 3. Monetary Penalties. Finally, Siemens argues the district court

erroneously imposed a $7,500 fine in addition to restitution. “Under the advisory

Guidelines, a court may impose a fine ‘in all cases, except where the defendant

establishes that [s]he is unable to pay and is not likely to become able to pay any

fine.”’ United States v. Orlando, 553 F.3d 1235, 1239 (9th Cir. 2009) (citation

omitted). “The defendant bears the burden of proving [s]he is unable to pay the fine”

and a “district court’s finding of whether a defendant is able to pay the fine is

reviewed for clear error.” Id. at 1240.

While the district court acknowledged that Siemens’s financial information is

“very complicated,” partly because she “resisted” disclosing her financial

information to Probation, it ultimately determined that Siemens could pay a fine

given the potential sale of her property and other assets. Because “the court may fine

a currently indigent defendant, if it finds that [s]he has earning capacity to pay the

fine in the future,” we conclude the district court did not clearly err in imposing a

fine. See id. (upholding the district court’s imposition of a fine when the defendant

failed to disclose financial information to the Probation Office, the underlying crime

involved large sums of money, and the defendant had a long history of major

financial misrepresentation) (citations omitted).

AFFIRMED.