FILED
NOT FOR PUBLICATION OCT 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10036
Plaintiff - Appellee, D.C. No. 2:09-cr-01040-MHM-4
v.
MEMORANDUM*
CORDAE L. BLACK,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-10037
Plaintiff - Appellee, D.C. No. 2:09-cr-01040-MHM-6
v.
ANGEL MAHON,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-10039
Plaintiff - Appellee, D.C. No. 2:09-cr-01040-MHM-2
v.
KEMFORD J. ALEXANDER,
Defendant - Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
UNITED STATES OF AMERICA, No. 11-10077
Plaintiff - Appellee, D.C. No. 2:09-cr-01040-MHM-3
v.
TERRANCE L. TIMMONS,
Defendant - Appellant.
Appeals from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted January 16, 2013
San Francisco, California
Before: NOONAN, GRABER and FISHER, Circuit Judges.
Defendants appeal their jury convictions of conspiracy to possess cocaine
with intent to distribute cocaine and use of a firearm in furtherance of a drug
trafficking offense.1 We reject their various arguments, and we affirm.
1. Motion to Sever
Defendant Timmons, joined by Mahon, argues that the district court abused
its discretion in denying his motion to sever his trial from that of his codefendants.
Timmons waived this issue by failing to renew his motion to sever at the
close of evidence. See United States v. Alvarez, 358 F.3d 1194, 1206 (9th Cir.
1
Some of the issues raised by these consolidated appeals are addressed in a
concurrently filed published opinion.
2
2004). He has not demonstrated that either of the recognized exceptions to the
renewal requirement applies. See United States v. Decoud, 456 F.3d 996, 1008
(9th Cir. 2006) (“A defendant . . . will not be found to have waived his challenge if
he can show either that he diligently pursued severance or that renewing the
motion would have been an unnecessary formality.”). We reject his argument that
filing a motion to sever and arguing the motion at a hearing constitute diligent
pursuance of severance; such an argument would allow the exception to swallow
the rule of renewal. Timmons’ argument that “it was apparent” the district court
would deny a renewed motion to sever is conclusory and not supported by the
record.
Mahon likewise waived this issue by failing to renew the motion at the close
of evidence.2 See Alvarez, 358 F.3d at 1206. He also did not raise the issue in his
briefs before this court, instead filing a “notice of joinder” in Timmons’ argument
only days before oral argument; nor did he argue why the district court’s failure to
sever his trial from that of his codefendants was an abuse of discretion as to him.
See United States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012) (argument is
waived when it was not raised in an appellant’s opening brief); Milne v. Hillblom,
2
Unlike Timmons, Mahon failed even to file a pretrial motion to sever.
3
165 F.3d 733, 736 n.6 (9th Cir. 1999) (argument is waived when an appellant “fails
to present any argument or pertinent authority to support” it).
2. Entrapment Jury Instructions
a. We reject Black, Alexander and Mahon’s argument that the district
court’s jury instruction on entrapment was erroneous because it articulated the two
elements of entrapment in the disjunctive. The district court properly instructed
the jury that, to disprove entrapment, the government must prove either
predisposition or noninducement. See United States v. Varela, 993 F.2d 686, 689
(9th Cir. 1993); United States v. Hoyt, 879 F.2d 505, 509 (9th Cir. 1989).
b. To the extent Alexander contends that the district court erroneously failed
to use a special verdict form, he waived this argument by failing to specifically and
distinctly raise and argue it in his opening brief. See Miller v. Fairchild Indus.,
Inc., 797 F.2d 727, 738 (9th Cir. 1986). Additionally, Alexander failed to raise this
issue before the district court, and he has not cited any Ninth Circuit authority
requiring the use of a special verdict form. Therefore, he has not demonstrated
plain error. See United States v. Johnson, 626 F.3d 1085, 1088 (9th Cir. 2010).
c. We reject Alexander’s argument that the entrapment jury instruction
overemphasized the predisposition element, was confusing, limited the factors the
jury could consider or constituted improper comment. The district court did not
4
abuse its discretion in its formulation of the entrapment jury instruction, which
mirrored Ninth Circuit Model Jury Instruction 6.2. The instruction as formulated
contained correct statements of the law regarding entrapment and did not mislead
the jury in any way. See United States v. Powell, 955 F.2d 1206, 1210 (9th Cir.
1991). Including legally accurate definitions of “predisposition” and “inducement”
– terms that may not fall within the common knowledge of most jurors – did not
hinder the jury as it deliberated, nor did the definitions improperly limit factors the
jury could consider as predisposition or inducement.
d. We reject Mahon’s argument that the district court erroneously instructed
the jury regarding inducement. The jury instruction regarding the types of rewards
that may constitute government inducement for purposes of entrapment is
consistent with United States v. Spentz, 653 F.3d 815, 819 (9th Cir. 2011), as well
as prior circuit cases upon which Spentz relied.
3. Sufficiency of Evidence Regarding Entrapment Defense
We reject Alexander and Mahon’s argument that the government failed to
disprove entrapment. The government presented sufficient evidence from which
the jury could conclude that the defendants were not induced by government agents
to commit the crimes charged. See United States v. Mejia, 559 F.3d 1113, 1116
(9th Cir. 2009) (government must prove either predisposition or noninducement).
5
Alexander’s argument that the proceeds of the hypothetical stash house
robbery constitute inducement is foreclosed by Spentz, 653 F.3d at 820 n.4 (“[T]he
reward promised cannot be the criminal reward but must be some other, non-
criminal reward that the individual receives for committing the crime.”).
Alexander’s argument that a proposal to steal drugs from drug dealers rather than
innocent people can constitute government inducement is unsupported by citation
to any authority.
Finally, there is no evidence in the record that the government preyed on
Mahon’s purported need for comradeship or that Mahon demonstrated his need for
comradeship to the government such that it could have taken advantage of such a
need, thus distinguishing this case from United States v. Poehlman, 217 F.3d 692
(9th Cir. 2000).
4. Conspiracy Between a Defendant and Government Agent
6
Alexander argues that the government has not established that he conspired
with anyone other than Agent Zayas and thus his conviction must be reversed.3
The government presented sufficient evidence from which a rational trier of
fact could have found the existence of a conspiracy and Alexander’s connection to
that conspiracy. See United States v. Reed, 575 F.3d 900, 923-24 (9th Cir. 2009).
This case is distinguishable from United States v. Paret-Ruiz, 567 F.3d 1 (1st Cir.
2009), in which the court concluded that the government had presented evidence
only that Paret-Ruiz was a middleman who hoped to consummate an agreement
between an undercover agent and other individuals to accomplish an illegal
objective, and that there was no evidence that Paret-Ruiz and the other individuals
were actually a team committed to working together to traffic drugs. Id. at 7.
Here, the government presented ample evidence that a group of individuals, in
addition to Agent Zayas and including Alexander, agreed to and intended to
perform a stash house robbery.
3
Mahon joined Alexander’s argument, which was specific to the evidence
regarding Alexander’s participation in the conspiracy, but Mahon has not made any
arguments regarding the government’s lack of evidence that he conspired with
anyone but an agent. His argument is therefore waived. See Entm’t Research
Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997)
(“We review only issues which are argued specifically and distinctly in a party’s
opening brief. We will not manufacture arguments for an appellant, and a bare
assertion does not preserve a claim . . . . [J]udges are not like pigs, hunting for
truffles buried in briefs.” (internal quotation marks omitted)).
7
5. Sufficiency of the Evidence of Involvement in the Conspiracy
Mahon and Timmons argue that the government presented insufficient
evidence that they were participants in the conspiracy and that the evidence
showed only their “mere presence” by their “association” with conspirators.
Viewed in the light most favorable to the government, it presented the
following evidence pertinent to Mahon:
• Simpson testified that Mahon was present at a July 26 meeting at
Alexander’s house that took place to discuss the home invasion.
• Agent Zayas testified that Mahon attended a July 27 meeting with
him, along with Black, Alexander, Simpson and Marsh. The day
before, Zayas had informed Simpson and Black to bring with them on
July 27 any other individuals who would be participating in the
robbery. When the group arrived, and only Black, Alexander and
Simpson exited the vehicle and began speaking with Zayas about the
robbery, Zayas asked Alexander to get the other two individuals,
including Mahon, from the vehicle if they would be participating in
the robbery, and Alexander did so. Zayas further testified that all of
the meeting attendees were engaged in the discussion and that he
observed Mahon nodding his head during the meeting.
• Simpson testified that Mahon was present at a July 27 meeting at
Alexander’s house, along with Black, Simpson, Marsh and Alexander,
that took place after the meeting with Agent Zayas to discuss the
robbery.
• Simpson testified that at the July 27 meeting at Alexander’s house,
Alexander assigned to Mahon the role of entering the stash house and
carrying a firearm.
8
• Agent Zayas testified that Mahon showed up on July 28, the date of
the fictitious robbery, along with Timmons, Alexander and Black. He
further testified that when the two vehicles with defendants followed
him to the storage facility, Mahon got out of the vehicle and Zayas
showed Mahon the unit in which the crew was to place Zayas’ portion
of the drugs.
This evidence is sufficient for the jury to have reasonably found that Mahon was a
knowing participant in the conspiracy, and the government’s failure to provide
evidence of Mahon’s oral assent to the conspiracy does not undermine his
conviction. See United States v. Perlaza, 439 F.3d 1149, 1177 (9th Cir. 2006)
(“[O]nce the existence of a conspiracy is established, a defendant may be convicted
of knowing participation therein if the evidence establishes, beyond a reasonable
doubt, even a slight connection between the defendants and the conspiracy.”
(internal quotation marks omitted)); United States v. Herrera-Gonzalez, 263 F.3d
1092, 1095 (9th Cir. 2001) (“A connection to the conspiracy may be inferred from
circumstantial evidence.”); United States v. Esparza, 876 F.2d 1390, 1392 (9th Cir.
1989) (“Proof of the defendant’s connection to the conspiracy requires a showing
that the defendant knew of the existence of the conspiracy and acted with the intent
to further its goals.”).
The government also presented sufficient evidence to support Timmons’
conspiracy conviction. Given the evidence that Timmons attended the July 27
9
meeting at Alexander’s house at which the robbery was being discussed and that he
was present in the vehicle as Agent Zayas reiterated that there would be 50
kilograms of cocaine that would be split evenly among the group, a rational trier of
fact could reasonably conclude that Timmons had knowledge of the conspiracy.
Additionally, there was evidence that Timmons was assigned a role in the
conspiracy (as a driver), that he acted in a way consistent with that role (by driving
his vehicle on July 28) and that his vehicle contained the precise number of guns
corresponding to the number of guns that were assigned to the conspirators. This
evidence was sufficient for a rational trier of fact to conclude that Timmons acted
with an intent to further the conspiracy’s goals. See Esparza, 876 F.2d at 1392.
Timmons’ argument that we should disregard Simpson’s testimony because
it was incredible, misleading, inconsistent, unsubstantiated and dishonest is
foreclosed by our precedent. Simpson’s testimony was not facially incredible or
unsubstantiated, and we may not resolve credibility determinations or factual
disputes in his favor. See United States v. Lopez, 803 F.2d 969, 973 (9th Cir.
1986).
6. Sufficiency of the Evidence of Involvement in Weapons Possession
We reject Mahon and Timmons’ argument that there was insufficient
evidence to support their convictions for aiding and abetting the possession of a
10
firearm in furtherance of a drug trafficking offense. The government presented
sufficient evidence to support appellants’ convictions under the co-conspirator
(Pinkerton) liability jury instruction. The four firearms in Timmons’ vehicle –
following Alexander’s instruction that Alexander’s brother-in-law go get four
firearms and Alexander’s assignment of carrying firearms to four of the defendants
– supports a jury finding that at least one of the defendants (all of whom were
found to be members of the conspiracy) possessed firearms in furtherance of a drug
trafficking offense (the robbery of the stash house). Because Simpson testified that
Mahon and Timmons were each present on occasions when guns were discussed in
connection with the robbery, the evidence was also sufficient that the crime of
possession of a firearm fell within the scope of the conspiracy and was foreseeable
to Mahon and Timmons. See United States v. Bingham, 653 F.3d 983, 997 (9th
Cir. 2011) (listing elements of Pinkerton liability).
7. Constructive Amendment of Indictment
Mahon argues that the conspiracy jury instruction constructively amended
the indictment. Mahon failed to object at trial that there was a constructive
amendment to the indictment, so we review for plain error. See United States v.
Choy, 309 F.3d 602, 607 (9th Cir. 2002).
11
a. The jury instructions did not constructively amend the indictment
because count one of the indictment charged defendants with conspiracy to possess
with intent to distribute cocaine, whereas the court instructed the jury that the
government must prove that “there was an agreement . . . to commit at least one
crime as charged in the indictment.” Taking the jury instructions as a whole as we
must, see Panther v. Hames, 991 F.2d 576, 581 (9th Cir. 1993), the district court’s
instructions made clear that the government was required to prove that the crime
agreed to was possession with intent to distribute cocaine.
b. The district court did not plainly amend count one of the indictment
because the indictment charged defendants with “knowingly and intentionally”
conspiring to possess with intent to distribute cocaine whereas the jury instructions
required that defendants only “knowingly” conspired. Viewing the jury
instructions as a whole, we conclude that the district court fairly instructed the jury
that the mens rea required for conspiracy was “knowingly” and “intentionally.”
Additionally, even if the district court had plainly erred, Mahon does not argue or
explain how that error affected his substantial rights or seriously affected the
integrity of his trial. See United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir.
2008) (“Relief for plain error is available if there has been (1) error; (2) that was
12
plain; (3) that affected substantial rights; and (4) that seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.”).
8. May 4, 2010 Jury Admonition
We reject Mahon’s argument that he is entitled to a new trial because the
district court failed to admonish the jury upon evening recess on May 4, 2010. On
that date, immediately before releasing the jury to begin its deliberations after
closing argument, the district court instructed the jury that it was under a
continuing admonition that it must abide by each day that it went home after
deliberating. That the district court thereafter recalled the jury to briefly mention a
minor evidentiary matter does not undermine the continuing admonition that was
imposed shortly before. Even if the district court had plainly erred, Mahon has not
established that any prejudice resulted from the error. See Cannel, 517 F.3d at
1176.
9. Evidentiary Issues
a. Mahon and Timmons waived their argument regarding the admission of
an audio recording of a conversation between Timmons and Black when they were
arrested and placed into a police car by failing to make any argument or cite any
authority in support. See Milne, 165 F.3d at 736 n.6; United States v. Tisor, 96
F.3d 370, 376 (9th Cir. 1996). Even if this argument had not been waived, the
13
district court did not abuse its discretion in admitting the recording, because the
unintelligible portions of the recording were not “so substantial that the recording
as a whole is untrustworthy.” United States v. Abonce-Barrera, 257 F.3d 959, 963
(9th Cir. 2001) (internal quotation marks omitted). Additionally, based on the
context in which the recording was introduced, statements made during the
recording and the other recordings that were played during trial, the jury could
reasonably determine which defendants were speaking on the recording.
b. We reject Mahon and Timmons’ argument that the district court erred in
failing to order a mistrial after the government referred to a “transcript” during
closing argument contrary to the district court’s orders. During trial, the
defendants objected to the government’s statement but did not move for a mistrial.
The district court accepted the objection and provided a clear curative instruction
(as Timmons requested). In light of these curative actions, the district court did not
err, much less do so plainly, in failing to sua sponte declare a mistrial. See United
States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008) (“[W]e review the district
court’s failure to sua sponte declare a mistrial for plain error.”).
c. Mahon and Timmons waived their argument regarding the denial of
testimony impeaching the credibility of Agent Zayas by failing to make any
argument in support, or even make clear on what legal basis they now challenge
14
the district court’s ruling. See United States v. Williamson, 439 F.3d 1125, 1138
(9th Cir. 2006) (“‘We will not manufacture arguments for an appellant’ who has
failed ‘to present . . . specific, cogent argument[s] for [the court’s] consideration,’
especially where ‘a host of other issues are presented for review.’” (alterations in
original) (quoting Entm’t Research Grp., 122 F.3d at 1217)).
d. Mahon and Timmons waived their argument regarding the district court’s
denial of a mistrial after Agent Zayas testified about the dangerousness of using an
actual, rather than hypothetical, stash house in a reverse sting operation. They
failed to make any argument in support, or even make clear on what legal basis
they now challenge the district court’s ruling. See id.
e. Mahon and Timmons waived their argument regarding the admission of
testimony by Simpson that Timmons was an “inmate” by failing to make any
argument or cite any authority in support. See Milne, 165 F.3d at 736 n.6; Tisor,
96 F.3d at 376.
f. We reject Mahon and Timmons’ argument that the district court erred in
denying a motion for mistrial after the government stated during closing argument
that the defendants, who were not charged with murder, were “prepared to kill” on
the date of the robbery. Unlike United States v. Rodrigues, 159 F.3d 439 (9th Cir.
1998), the government did not, through its comments, mislead the jury on the law
15
or effectively slander defense counsel. This case is also distinguishable from
United States v. Wilson, 135 F.3d 291 (4th Cir. 1998), because here there was both
a basis in the evidence for the prosecutor’s statement, and it was relevant to the
government’s burden in proving defendants’ predisposition. The district court
therefore did not abuse its discretion in denying a mistrial following the
government’s statement. See United States v. Allen, 341 F.3d 870, 891 (9th Cir.
2003) (stating that denials of motions for mistrial are reviewed for abuse of
discretion).
g. We reject Mahon and Timmons’ argument that the district court erred in
admitting testimony by Agent Atencio that he observed a struggle between
Timmons and a SWAT team member who was attempting to arrest Timmons
because the statement was unsupported by evidence, irrelevant and prejudicial.
The statement was supported by evidence because Agent Atencio was a percipient
witness, and his testimony is evidence. It was relevant because it was elicited by
Timmons’ counsel in response to questions regarding what Atencio actually
witnessed in terms of Timmons being taken into custody, and for that reason also
was not unduly prejudicial. Finally, defendants did not object to this statement
during the trial, and the district court did not plainly err by not striking it sua
sponte.
16
h. We reject Mahon’s argument under Federal Rules of Evidence 401, 403
and 404(b) that the district court erred in admitting testimony by Simpson
regarding his knowledge about individuals who possessed cocaine. The statement
was relevant under Rule 401 to the government’s burden of showing
predisposition. It was not offered as character evidence, nor does it refer to
evidence of prior bad acts, and thus Rule 404(b) is not relevant. Finally, it was not
unduly prejudicial under Rule 403 given the central role of defendants’ entrapment
defense in this case.
10. Application of Sentencing Guidelines to Drug Trafficking
We reject Black’s argument that the district court abused its discretion in
sentencing him based upon the Guidelines applicable to drug trafficking rather than
those applicable to robbery because his offense factually resembled a robbery more
than drug trafficking. The district court’s adherence to U.S.S.G. § 1B1.2 was not
an abuse of discretion.
17
11. Application of Statutory Minimum Sentencing
Mahon’s argument that a statutory minimum sentence should not bar the
application of a lower sentence if appropriate under the sentencing factors
articulated in 18 U.S.C. § 3553(a) is foreclosed by United States v. Wipf, 620 F.3d
1168, 1170-71 (9th Cir. 2010).
AFFIRMED.
18