USA v. Rosa Della Porta

Filing

FILED OPINION (BARRY G. SILVERMAN, RICHARD C. TALLMAN and RICHARD R. CLIFTON) AFFIRMED. Judge: BGS Authoring, FILED AND ENTERED JUDGMENT. [7847197]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROSA MIRIAM DELLA PORTA, AKA
Rosa Miriam Galan-Lopez, AKA
Rosa Miriam Lopez,
Defendant-Appellant.





No. 10-50168
D.C. No.
2:08-cr-00942PSG-1
OPINION

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted
May 4, 2011—Pasadena, California
Filed August 8, 2011
Before: Barry G. Silverman, Richard C. Tallman, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Silverman

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UNITED STATES v. DELLA PORTA

COUNSEL
Ethan Balogh (argued) and Jay Nelson of Coleman & Balogh
LLP, San Francisco, California, for the appellants.
Andre Birotte Jr., Robert E. Dugdale, Dennis Mitchell
(argued) and Elana Shavit Artson of the U.S. Attorney’s
Office for the Central District of California, Los Angeles,
California, for the appellees.

OPINION
SILVERMAN, Circuit Judge:
In United States v. Evanston, we recently held that a district
court abuses its discretion and impermissibly coerces a jury
verdict where, “over defense objection and after the administration of an unsuccessful Allen charge, [the court] inquire[s]
into the reasons for a trial jury’s deadlock and then permit[s]
supplemental argument focused on those issues, where the
issues in dispute are factual rather than legal.” ___ F.3d ___,
No. 10-10159, 2011 WL 2619277, at *1 (9th Cir. July 5,
2011). In this case we also address the use of supplemental
closing arguments to assist a deadlocked jury, but under significantly different circumstances: where the district court
never gave an Allen charge and never inquired into the reasons for the jury deadlock. We hold today that under these circumstances, unlike those at issue in Evanston, the district
court’s decision to permit supplemental closing argument did
not result in impermissible coercion and did not constitute an

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abuse of discretion meriting reversal. Nor do we find any
plain error in the district court’s jury instructions.
I.

BACKGROUND

Between 1996 and 2006, Rosa Della Porta worked as a
bookkeeper for the International Longshoremen’s and Warehousemen’s Union Local 26 in Los Angeles. As the union’s
bookkeeper, Della Porta was responsible for maintaining the
union’s receipt books and depositing various cash and check
payments received by the union into its two bank accounts. In
the spring of 2005, the union’s internal auditor discovered that
thousands of dollars in cash payments received by the union
had not been deposited into its bank accounts. A Department
of Labor investigation ensued, and Della Porta was charged
with one count of embezzlement and theft of labor union
assets under 29 U.S.C. § 501(c).
At trial, the government sought to prove that Della Porta
used a dual deposit slip method to conceal her theft of the
union’s cash. Under this system, she prepared two sets of
bank deposit slips when she made deposits into the union’s
accounts—one for the bank and one for the union’s records.
The union’s deposit slips reflected that all of the cash payments had actually been deposited in the union’s bank
accounts, but the deposit slips submitted to the bank showed
that either less or no cash had been deposited. In order to
account for the difference in the cash value between the two
sets of deposit slips, Della Porta substituted dues checks
received from the union members’ employers in place of the
cash missing from the bank deposits. The dues checks did not
appear on the union’s deposit slips. There was a discrepancy
of over $100,000 between the cash received by the union and
the cash deposited into the union’s bank account between
2003 and 2006. The government also presented evidence that,
during the same approximate period, Della Porta deposited
more than $15,000 in cash and more than $13,000 in money
orders into her personal bank account. The government intro-

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duced evidence of both the dual deposit scheme and the cash
and money order deposits into Della Porta’s account through
Roberto Gonzalez, the lead investigating agent from the
Department of Labor.
Della Porta testified in her defense. She admitted using the
above-described dual deposit system but denied taking the
union’s cash for her personal use. She claimed that Luisa
Gratz, the union’s president, instructed her to withhold certain
amounts of cash from the deposits into the union’s bank
accounts so the union could donate the cash to overseas laborrelated charities and organizations. As for the influx of deposits into her personal checking account between 2003 and
2006, Della Porta claimed that her sister gave her some of the
money to help her pay her household expenses, and that she
also earned income on the side through part-time work with
Mary Kay and Avon. When called as a witness by the government, however, Della Porta’s sister denied ever giving Della
Porta cash for any household or related expenses.
After deliberating for approximately three hours over two
separate days, the jury sent the court a note that read as follows:
Jury requests the numbers of the exhibits where the
Government showed the dual deposit slips and then
showed the relationship of deposits into Rosa’s
account. This was done during Roberto Gonzalez’s
testimony. He showed money orders, deposit slips,
into Rosa’s account. We need the numbers of the
exhibits.
The court and the parties debated how to best respond to
the jury’s request. The court stated that it viewed the jury’s
request as “almost asking for a mini closing again” where the
government would juxtapose the evidence of the cash taken
from the union’s bank deposits with the evidence of the cash
and money orders deposited into Della Porta’s bank account,

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and Della Porta would argue that such a relationship could not
be circumstantially inferred. The government offered to stipulate to such a process, but the court concluded that a “mini
closing” wasn’t necessary at that juncture. With both parties’
approval, the court ultimately responded to the jury that it was
“unable to respond to this specific request as worded.” The
jury deliberated for the remainder of the day.
The following morning, the jury sent out a second note asking if it could have copies of “the transcripts of Roberto Gonzalez’s testimony.” With the parties’ approval, the court
responded: “No. However, you may have the testimony of
Roberto Gonzalez read to you in open court.” After the court
reporter read back Gonzalez’s testimony, the jury returned to
deliberations for about three hours. It then sent a third note to
the court that stated: “The jury cannot come to a unanimous
decision.” The court proposed bringing the jurors out to conduct a direct inquiry of the foreperson, and potentially the
other individual jurors, to determine whether it was “hopelessly deadlocked.” Neither party objected to the proposal.
The following exchange between the court and the foreperson
ensued in the courtroom:
THE COURT:

. . . Please listen carefully
and only answer the questions that I ask and don’t
volunteer or give me any
additional information beyond what I ask.
You have indicated that the jury
is deadlocked; is that correct?

THE FOREPERSON: Yes.
THE COURT:

Is there anything the Court
could do to further assist in
the deliberations?

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THE FOREPERSON: What do you mean like providing is [sic] with some
extras?
THE COURT:

I’m sorry?

THE FOREPERSON: Do you mean by providing
us with some other information?
THE COURT:

Let me give you some specific examples to follow up
on that question. For example, would it be helpful to
read a portion—read testimony back to you? Read testimony back to the jurors?

THE FOREPERSON: No, I don’t think so.
THE COURT:

Would it be helpful, for
example, to allow the attorneys five or ten more minutes to argue each particular
side?

THE FOREPERSON: I don’t know if that would
help us.
THE COURT:

All right. Go back to the jury
room and—I don’t know if
you want to discuss any particular issues as to whether
or not something else would
help you come to a decision.
Let me know your view that
you’re still deadlocked.
Thank you.

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After the court excused the jury, it asked the parties
whether they would object if the jury came back and asked for
“five minutes of argument on a point or just five more minutes of argument on either side.” The government stated that
it had no objection. The defense objected to any further argument, arguing that “it’s in [the jurors’] hands at this point.”
About ten minutes later, the jury sent the court a fourth
note. The note stated: “We would like to hear the attorneys’
argument again, just as you suggested.” The government proposed asking the jurors if there was a particular issue they
wanted to hear argument on. Della Porta’s counsel objected
that such an inquiry would invade the process of independent
juror deliberations. The court sided with Della Porta on the
issue and declined to make inquiry of the jury. It ruled that
each side would be allowed fifteen minutes of additional
argument, and that the government could reserve a portion of
that time for rebuttal.
The government argued first, followed by the defense. The
government then closed with a brief rebuttal. The jury
resumed deliberations and reached a unanimous guilty verdict
in less than an hour. Della Porta now appeals that verdict. She
argues that the district court’s employment of supplemental
arguments impermissibly coerced a guilty verdict, and that the
district court committed plain error by failing to instruct the
jury regarding her defense that her actions were authorized by
the union’s president. We have jurisdiction over this appeal
under 28 U.S.C. § 1291.
II.

STANDARD OF REVIEW

We review the district court’s decision to allow supplemental argument for abuse of discretion. Evanston, 2011 WL
2619277, at *2. Under this standard, “ ‘the district judge’s
discretion should be preserved unless its exercise could
deprive the defendant of a constitutional right or otherwise
prejudice defendant’s case.’ ” Id. (quoting United States v.

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Goode, 814 F.2d 1353, 1355 (9th Cir. 1987)). We review de
novo, however, the question “ ‘[w]hether a judge has improperly coerced a jury’s verdict.’ ” Id. (quoting United States v.
Berger, 473 F.3d 1080, 1089 (9th Cir. 2007)).
Because Della Porta never requested a jury instruction on
an authorization defense at trial, we review the district court’s
failure to give such an instruction for plain error. See United
States v. Bear, 439 F.3d 565, 568 (9th Cir. 2006). To reverse
under this standard, “there must be (1) ‘error,’ (2) that is
‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v.
United States, 520 U.S. 461, 466-67 (1997) (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)). If these conditions
are satisfied, we may exercise our discretion to reverse, but
“only if (4) the error seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.” Id. at 467 (internal quotation marks omitted).
III.
A.

DISCUSSION
The District Court Neither Abused Its Discretion Nor
Coerced a Guilty Verdict By Ordering Supplemental
Closing Argument.

In Evanston, we addressed, as a matter of first impression
in this circuit, the use of supplemental closing arguments to
assist a deadlocked jury in a criminal trial. The case involved
charges of assault resulting in serious bodily injury occurring
on an Indian reservation. 2011 WL 2619277, at *1. After a
two-and-a-half day trial, and after deliberating for five hours
over two separate days, the jury advised the district court that
it could not reach a verdict. Id. The court then gave Ninth Circuit Model Jury Instruction 7.7—often referred to as an Allen,
or “dynamite,” charge1—and asked the jury to continue delib1

“The term ‘Allen‘ or ‘dynamite’ charge is used to describe a supplemental instruction given by the court to encourage a jury to reach a verdict
after that jury has been unable to agree after some period of deliberation.
The original form of the instruction was approved by the Supreme Court
in Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157, 41 L. Ed.
528 (1896).” United States v. Nickell, 883 F.2d 824, 828 (9th Cir. 1989).

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erating. Id. After deliberating for almost another three hours,
the jury again advised the court that it could not reach a verdict. Id. The court met with the parties and proposed “bring[ing] in the members of the jury, ascertain[ing] the issue on
which they are deadlocked, and allow[ing] ten more minutes
to each side to argue that point.” Id. The government welcomed the opportunity to reargue, but the defense objected to
the proposed process. Id. The court then called the jury back
into the courtroom. It admonished the jury that “[b]oth parties
have a right to make sure that the judge and others do their
very best to make sure that the jury empanelled [sic] to hear
a case absolutely cannot decide it . . . before they declare a
mistrial or release the jury.” Id. at *9 (first alteration added).
It then asked whether “the procedure of, without adding additional evidence, identifying particular points and rearguing
those points might assist them in resolving the impasse.” Id.
at *2. The jury responded affirmatively and identified two
issues on which it wished to hear further argument: witness
credibility and how the victim’s injuries were caused. Id. The
court then excused the jury and allowed the parties to argue
once more whether supplemental arguments should be permitted. The defense repeated its objections, but the court ultimately decided to allow reargument. Id. The government
presented its argument first, followed by the defense. After
two more hours of deliberation, the jury returned a unanimous
guilty verdict. Id.
[1] We reversed and remanded for a new trial. Specifically
limiting our holding to the circumstances at issue in the case,
we held that the district court’s employment of supplemental
argument “resulted in impermissible coercion, and consequently an abuse of discretion meriting reversal.” Id. at *10
n.15. We reasoned that the use of supplemental closing arguments under the circumstances infringed upon the traditional
fact-finding role of the jury in two important ways: “(1) the
judge’s questioning as to the reasons for the deadlock
required that the jury divulge the state of its unfinished deliberations, thereby violating the jury’s deliberative secrecy,”

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and “(2) the parties’ supplemental arguments, coupled with
the judge’s insistence on continuing after a second deadlock,
injected the court and the attorneys into the jury’s deliberative
process, thereby raising the specter of jury coercion.” Id. at
*5. Furthermore, given the court’s decision to order supplemental arguments after an Allen charge and after the jury
reported a second impasse, “the lawyers’ arguments were of
perhaps increased coercive value: the implication was, as with
a second Allen charge, that the judge believed the jury had not
accorded proper deference to his prior encouragement to
reach a verdict.” Id. (citing United States v. Seawell, 550 F.2d
1159, 1163 (9th Cir. 1977)). In sum, “[t]he compounded coercion resulting from the combined use of the deadlock instruction and supplemental arguments targeted to the jury’s exact
areas of dispute created a broad, impermissible opportunity
for interference with the jury’s role as sole fact-finder.” Id. at
*10.
[2] We also noted as influencing our decision the fact that
the district court had available several less coercive alternatives to ordering supplemental argument, such as re-reading
the original jury instructions relating to the jury’s areas of
concern, providing supplemental instructions regarding the
relevant legal standard for causation, and allowing the jury to
review portions of witness testimony. Id. at *7-8. In reversing
the district court, however, we took pains to note that our
decision was limited to the circumstances presented, id. at *10
n.15, and declined to “foreclose the possibility that supplemental argument treating factual matters could ever be used”
in a permissible fashion, id. at *6. We also left open “the
question of whether the use of supplemental arguments to
address factual matters is necessarily or always an error of
constitutional dimension, whatever the circumstances.” Id. at
*10 n.15.2
2

We limited our holding in such a manner “because the Supreme
Court’s precedent on similar jury coercion issues has generally emanated

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Using Evanston as our guidepost, we hold that the district
court neither coerced a guilty verdict nor abused its discretion
by ordering supplemental arguments under the facts presented
in this case. We so hold because the set of key circumstances
rendering the use of supplemental arguments coercive in
Evanston are simply not present here.
[3] First, unlike in Evanston, the district court in this case
never gave an Allen charge. Nor did it indicate to the jurors
that it had to satisfy itself that they “absolutely” could not
reach a verdict before declaring a mistrial. Id. at *9. These
distinctions are crucial. As we alluded to in Evanston, see id.
at *3, “[a] single Allen charge, without more, stands at the
brink of impermissible coercion.” Seawell, 550 F.2d at 1163.
Although we have upheld the use of the Allen charge under
certain circumstances, “[e]ven slight deviations from the language and procedure approved by this court can result in
reversible error based upon likelihood of coercion.” Evanston,
2011 WL 2619277, at *3 (citing United States v. Mason, 658
F.2d 1263, 1267-68 (9th Cir. 1981)). It is per se error, for
example, to give a second Allen charge where the jury has not
asked for one, because doing so “conveys a message that ‘the
jurors have acted contrary to the earlier instruction as that
instruction was properly to be understood . . .’ and that message serves no purpose other than impermissible coercion.”
Id. (quoting Seawell, 550 F.2d at 1163). It was against these
background “core principles” that we viewed the district
court’s procedure in Evanston. Id. By ordering supplemental
arguments after giving an Allen charge, “the implication was,
as with a second Allen charge, that the judge believed the jury
from its supervisory powers over the federal courts, rather than any mandate from the federal Constitution.” Id. at *10 n.15 (citing Lowenfield v.
Phelps, 484 U.S. 231, 239 n.2, 240 n.3 (1988)). This is so “because the
presence of coercion produced by the trial court’s actions depends on the
circumstances of each case, rather than any inherent coercive feature of
the procedure itself, and due process would not be violated where no
actual or likely coercion occurs.” Id.

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had not accorded proper deference to his prior encouragement
to reach a verdict.” Id. at *5.
Moreover, the likelihood of coercion occasioned by the
Allen charge in Evanston was exacerbated by the district
court’s later admonition to the jury after it reported it was
deadlocked for a second time. Such commentary, coupled
with the supplemental closing arguments, “risked the same
type of coercion and prejudice contemplated by Seawall.” Id.
at *9 (citing 550 F.2d at 1163). It was very likely that, “having been admonished once with the Allen charge, and then
admonished that the district court had to make sure the jury
‘absolutely’ could not reach a verdict before declaring a mistrial, the jurors in the minority might have been swayed to
reach a verdict more readily, and against their honest beliefs,
than if the supplemental arguments had not been given.” Id.
[4] Here, none of the above concerns was implicated when
the district court ordered supplemental closing arguments.
Because an Allen charge was never given, there was no suggestion that “the judge believed the jury had not accorded
proper deference to his prior encouragement to reach a verdict.” Id. at *5. And because the court never made any additional statements to the jury encouraging it to reach a
unanimous verdict, there was no risk that “the jurors in the
minority might have been swayed to reach a verdict more
readily,” as was the case in Evanston. Id. at *9. The district
court in no way pressured the jurors to surrender their
conscientiously-held beliefs for the sake of securing a unanimous verdict, in stark contrast with the court’s actions in
Evanston.
A second key distinguishing feature of this case is that the
district court never asked the jury to identify areas or issues
of disagreement before ordering supplemental arguments. To
the contrary, after the jury indicated it was deadlocked, the
court scrupulously instructed the foreperson to only answer
the questions asked and to not volunteer any additional infor-

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mation, and none was. The court then merely asked the
foreperson if anything would further assist the jury in its
deliberations, such as reading back witness testimony or hearing further argument. After the jury elected to hear further
argument, the court permitted the parties to readdress the jury
without any specific guidance on the content of the argument.
Siding with the defense on the issue, the court expressly
rejected the government’s suggestion to invite the jury to
identify areas of factual disagreement.
All of these facts distance this case from Evanston and
United States v. Ayeni, 374 F.3d 1313 (D.C. Cir. 2004), the
only other reported circuit decision discussing the practice of
supplemental closing argument. In both Evanston and Ayeni,
the district court asked the deadlocked jury to identify areas
of disagreement, the jury identified specific factual matters on
which it disagreed, and the parties were permitted to tailor
their supplemental arguments to the jury’s specific concerns.
See Evanston, 2011 WL 2619277, at *2; Ayeni, 374 F.3d at
1314. This, in turn, “permit[ted] the lawyers to effectively
participate in the jury’s deliberations, almost as if they were
in the jury room itself.” Evanston, 2011 WL 2619277, at *5
(alteration in original) (quoting Ayeni, 374 F.3d at 1320
(Tatel, J., concurring)). Here, there was no such issue. The
district court did not extract from the jury information about
its fact-finding process. Instead, it carefully framed its questions to the foreperson as suggestions of possible forms of
assistance, rather than any requirement that the jury reveal the
nature of the issues impeding deliberations. Although the parties may have speculated about the issue hanging up the jury
based on its earlier notes to the court, the same specter of
coercion present in Evanston is simply not present here
because the court never asked the jury to reveal the nature of
its deadlock in the first instance.
Della Porta argues that the district court in this case, as in
Evanston, “had in its arsenal of permissible actions numerous
less coercive alternatives, including doing nothing at all.” See

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Evanston, 2011 WL 2619277, at *7. But that argument
ignores the fact that the district court in Evanston took the
coercive step of asking the jury to disclose the nature of its
factual disagreement. Because it took that step, it had the
option of re-reading the original jury instructions relating to
each area of concern or fashioning an appropriate supplemental instruction with the parties’ input. Id. at *7-8. Because the
district court here never asked the jury to identify areas of disagreement, it was not clear what, if any, additional or repeated
instructions might have been helpful in breaking the gridlock.
The district court in Evanston also had the option of allowing
the jurors to review witness testimony. Id. at *8. But here the
court had already read back the testimony of the government’s main witness, at the jury’s beckoning. The jury had
also rejected the court’s suggestion of reading back further
witness testimony to assist it in its deliberations. These considerations only further distance the circumstances of this case
from those at issue in Evanston.
[5] We recognize that, as was the case in Evanston, the district court did not issue ameliorative instructions prior to the
presentation of the supplemental arguments. See id. at *10.
We also acknowledge that, as in Evanston, the jury reached
a unanimous verdict relatively quickly after the close of supplemental arguments. See id. at *9. But these factors are by
no means dispositive. See United States v. Beattie, 613 F.2d
762, 765 (9th Cir. 1980) (in evaluating claims of coercion following an Allen charge, “the time elapsed between a charge
and verdict is significant, [but] it is not dispositive of the
issue.”). Furthermore, we considered them in Evanston only
in the context of our discussion as to whether the defendant
was prejudiced by the district court’s error. See 2011 WL
2619277, at *9-10. Just as we did in Evanston, we rest our
holding today on the totality of the circumstances of the case
presented. Given the circumstances in this case—where the
district court never delivered an Allen charge and never asked

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the jury to identify areas of factual disagreement—we find no
improper coercion or abuse of discretion warranting reversal.3
B.

The District Court Did Not Commit Reversible Plain
Error By Failing To Give An Authorization Instruction.

We now turn to Della Porta’s claim that the district court
committed reversible plain error by failing to instruct the jury
on her purported defense that her actions were authorized by
Luisa Gratz, the union’s president.
[6] A district court must instruct the jury on a theory of
defense if the defendant “actually presents and relies” upon
that theory at trial, even when she does not request such an
instruction. Bear, 439 F.3d at 568. Although lack of authorization is not an essential element of § 501(c), it is nevertheless “likely to bear on the essential element of fraudulent
intent.” United States v. Thordarson, 646 F.2d 1323, 1336
(9th Cir. 1981). In a case where lack of authorization is “crucial in determining the defendant’s intent,” a jury instruction
concerning the defense is “likely to be appropriate.” Id.
[7] The district court did not plainly err by failing to
instruct the jury on an authorization defense here. The crux of
Della Porta’s defense was not that Gratz or anyone else authorized her to take the union’s funds. Rather, her defense was
“that it was, in fact, Gratz who had embezzled the union
funds, and that she did so by employing Ms. Della Porta as
an unwitting dupe.” See Appellant’s Brief at 52. A valid
authorization defense required more than just a showing that
3

We also reject Della Porta’s related contention that the district court’s
employment of supplemental closing arguments violated Federal Rule of
Criminal Procedure 29.1. That rule merely sets forth the required order for
closing arguments following a criminal trial. See Fed. R. Crim. P. 29.1
advisory committee’s note (West 2011) (stating that the “rule is designed
to control the order of closing argument.”). It neither sanctions nor prohibits the use of supplemental closing arguments in all cases. Cf. Evanston,
2011 WL 2619277, at *6 n.11.

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Gratz instructed Della Porta to set aside cash payments from
the union’s deposits. In the § 501(c) context, “the owner of
the property is the union itself—its collective membership—
not individual union officials who are not vested with power
to dissipate union funds” unilaterally. See United States v.
Stockton, 788 F.2d 210, 217 (4th Cir. 1986). “An appropriation or expenditure of union funds is therefore unauthorized
if it is done without the permission of the union, even if it is
approved by a superior union official.” Id.4 The evidence
presented at trial did not support a conclusion that the collective union membership ever instructed or authorized Della
Porta to withhold cash from the union’s deposits for the purpose of donating money to overseas charities. Gratz and other
union officials all testified unequivocally at trial that the
union never discussed or authorized donations to overseas
charities. Indeed, even Della Porta testified that no one on the
board (other than Gratz) ever said anything to her about donations to overseas charities, and that Gratz tried to conceal the
union’s alleged donations to overseas charities from the other
trustees. Because the evidence presented did not support a
finding that the union ever authorized Della Porta’s actions,
the district court did not plainly err by failing to instruct the
jury on an authorization defense.5
4

See also United States v. Floyd, 882 F.2d 235, 241 (7th Cir. 1989) (“a
higher ranking union official’s express approval of an appropriation is of
little import to § 501(c) cases because the true owner of union property is
the collective membership, not individual union officers” (citing Stockton,
788 F.2d at 217)); cf. United States v. Mett, 178 F.3d 1058, 1068 (9th Cir.
1999) (“[T]hose who embezzle from ERISA pension funds cannot argue
that their otherwise illegal transactions were ‘authorized’ by the plan participants because the participants themselves lack the legal power to
‘authorize’ such a diversion of pension monies.”).
5
We also reject Della Porta’s related argument that the district court
committed reversible plain error by instructing the jury on fraudulent
intent. In United States v. Ford, we held that the “[c]riminal intent necessary for theft offenses such as those enumerated in [18 U.S.C. § ] 664
exists when a defendant knowingly acts wrongfully to deprive another of
property.” 632 F.2d 1354, 1361 (9th Cir. 1980), overruled on other

Case: 10-50168

08/08/2011

ID: 7847197

DktEntry: 37-1

UNITED STATES v. DELLA PORTA

IV.

Page: 17 of 17

10409

CONCLUSION

The district court neither coerced a guilty verdict nor
abused its discretion by ordering supplemental closing arguments under the circumstances presented in this case. The district court also did not commit reversible plain error by failing
to instruct the jury on an authorization defense, as the evidence presented and relied on by Della Porta at trial did not
support a finding that her actions were authorized by the
union.
AFFIRMED.

grounds by United States v. DeBright, 730 F.2d 1255 (1984). Section 664
contains language identical to § 501(c)’s language on specific intent. See
18 U.S.C. § 664. Because § 501(c), like § 664, is a theft offense, and
because the operative language of § 501(c) is identical to that of § 664, the
district court did not plainly err by instructing the jury that fraudulent
intent “means knowingly acting wrongfully to deprive another of property.”