FILED
NOT FOR PUBLICATION SEP 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30065
Plaintiff - Appellee, DC No. CR 07-2063 LRS
v.
MEMORANDUM *
MICHAEL ALLEN BRIGGS,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted March 4, 2010
Seattle, Washington
Before: TASHIMA, FISHER, and BERZON, Circuit Judges.
Michael Briggs (“Briggs”) was convicted by a jury of conspiracy to possess
with intent to distribute cocaine and methamphetamine and conspiracy to possess a
firearm in connection with a drug trafficking offense. He now appeals his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conviction and the 132-month sentence that followed. We have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
Briggs is the unfortunate younger brother of Glen Briggs, a drug dealer and
purported gang member in Yakima, Washington.1 In 2007, Briggs was convinced
by his older brother to participate in the robbery of a drug “stash house” in
Tacoma, Washington. Unbeknownst to either of the brothers, neither the stash
house nor the drugs it contained was real; they were part of a “reverse sting”
operation set up by the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”). An undercover ATF agent mentioned the robbery to the Briggs brothers,
they took the bait, and they were ultimately arrested by ATF agents on the day that
the robbery was to take place.
Briggs was charged with two counts of conspiracy and was convicted by a
jury. He was later sentenced to 132 months’ imprisonment. He now appeals his
conviction and sentence, challenging both on a number of different grounds.
1. First, Briggs asserts that he was the victim of “outrageous government
misconduct.” See United States v. Haynes, 216 F.3d 789, 797 (9th Cir. 2000). We
1
In an opinion filed concurrently with this memorandum, we affirm
Glen Briggs’ conviction, but vacate his sentence and remand for resentencing.
United States v. Briggs, Nos. 09-30108, 09-30111, 09-30115, 09-30116.
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review the district court’s denial of this claim de novo, United States v. Williams,
547 F.3d 1187, 1199 n.9 (9th Cir. 2008), and agree that it was properly denied.
To succeed on his claim of outrageous government misconduct, Briggs must
show that the government’s conduct in securing his indictment shocks a “universal
sense of justice.” Haynes, 216 F.3d at 797. We see no such infirmity with the
reverse-sting operation that led to Briggs’ arrest. The government did not
“engineer[] and direct[] the criminal enterprise from start to finish.” Id. Although
the government created a fictitious robbery scenario designed to be attractive to the
Briggs brothers, see United States v. Glen Briggs, No. 09-30108, filed concurrently
with this memorandum, it left the planning to Michael Briggs, his brother Glen
Briggs, and their associates. Our case law makes clear that this does not rise to the
level of outrageous government misconduct. See Williams, 547 F.3d at 1199-1201.
2. Briggs next contends that his conviction must be reversed because the
prosecutor committed misconduct during his trial. Briggs failed to object to much
of this purported misconduct at the time it occurred. Where Briggs raised an
objection before the district court, we review his claim of misconduct de novo;
otherwise, we review for plain error. See United States v. Nobari, 574 F.3d 1065,
1073 (9th Cir. 2009); United States v. Harrison, 585 F.3d 1155, 1158 (9th Cir.
2009).
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We conclude that no prosecutorial misconduct occurred. To begin with, we
see nothing untoward about the prosecutor’s use of the phrase “we believe” in his
opening statement, and certainly see no plain error. We also do not agree with
Briggs’ contention that the prosecutor’s behavior during Briggs’ cross-examination
rose to the level of misconduct. To be sure, the prosecutor’s cross-examination of
Briggs was aggressive, and the prosecutor frequently employed an argumentative
style. The district judge, however, was responsive to defense counsel’s objections,
when those objections occurred, and kept reasonable control over the prosecutor’s
theatrics. Thus, we cannot say that the prosecutor’s behavior warrants reversal of
Briggs’ conviction.
3. Briggs also raises a number of evidentiary challenges to his
conviction. Where Briggs objected to the district court’s evidentiary ruling, we
review for abuse of discretion. United States v. Salcido, 506 F.3d 729, 732 (9th
Cir. 2007). Otherwise, we review for plain error. United States v. Gomez-Norena,
908 F.2d 497, 500 (9th Cir. 1990).
We see no error in any of the evidentiary rulings Briggs has challenged. A
jury would have understood that the prosecution’s references to Glen Briggs’ gang
connections and Julian Mora’s criminal history were to establish that they were
serious about following through with the conspiracy, not as a way of establishing
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Briggs’ guilt by association. Nor do we find that Detective Steadman testified
about an “ultimate issue” in the case; the jury would have understood that he was
testifying about why he believed Briggs was serious about joining the conspiracy,
not that he actually knew Briggs held that intent.
4. We also conclude that there was sufficient evidence to convict Briggs
of the conspiracies with which he was charged. Numerous government agents
testified that Briggs affirmatively and repeatedly indicated that he wanted in on the
robbery at the March 28, 2007, planning meeting. Although Briggs testified that
he did not participate in the planning meeting and that he did not know about the
planned robbery when he was arrested, the jury did not have to believe his
testimony. See United States v. Magallon-Jimenez, 219 F.3d 1109, 1114 (9th Cir.
2000) (“It is the province of the trier of fact to determine the credibility of
witnesses, resolve evidentiary conflicts, and draw reasonable inferences from
proven facts.” (internal quotation marks omitted)).
5. Finally, we affirm Briggs’ sentence, which we review for
reasonableness. See Gall v. United States, 552 U.S. 38, 46 (2007). While we
recognize that “reverse-sting operations” like the one in this case may risk
overstating a defendant’s culpability, the district court’s sentence took such
concerns into account. The court departed downward substantially from the
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recommended Guidelines range of 235-293 months. In fact, its ultimate sentence
of 132 months was just 12 months longer than the 10-year mandatory minimum,
which would have been in place for a quantity of drugs substantially below those
involved in the conspiracy. See 21 U.S.C. §§ 841(b)(1)(A)(ii)(II) (establishing 10-
year mandatory minimum for crimes involving five kilograms of cocaine),
841(b)(1)(A)(vii) (same for crimes involving 50 grams of methamphetamine).
Additionally, Briggs failed to establish that he had neither the intent nor the
resources for completing the transaction involving the quantity of drugs required to
invoke the mandatory minimum. See United States v. Naranjo, 52 F.3d 245, 250
N.13 (9th Cir. 1995).
The difference between the 132-month sentence Briggs received and the 48-
month sentence his co-conspirator, Julian Mora, received is also not grounds for
overturning Briggs’ sentence. Mora pleaded guilty to the charges against him and,
in return, the government dismissed the more serious drug-trafficking conspiracy
charge, which carried a mandatory minimum of 10 years’ imprisonment. See, e.g.,
United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009) (finding that
disparities in sentences among co-conspirators did not make sentences
unreasonable because the defendants were not similarly situated).
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6. We also reject Briggs’ assertion that he should have received the
benefit of the safety valve under 18 U.S.C. § 3553(f). The district court found that
Briggs had not been entirely truthful, as required by § 3553(f)(5). This factual
determination was not clear error. See United States v. Mejia-Pimental, 477 F.3d
1100, 1103 (9th Cir. 2007).
7. The remainder of Briggs’ contentions that his sentence is
unreasonable are largely boilerplate and are unconvincing.
Accordingly, the judgment of the district court is
AFFIRMED.
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