FILED
NOT FOR PUBLICATION JAN 04 2011
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. 08-10539
Plaintiff - Appellee, D.C. No. 1:06-cr-00342-OWW
v.
MEMORANDUM *
RICARDO RUIZ MONTES,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 08-10559
Plaintiff - Appellee, D.C. No. 1:06-vt-00342-OWW-1
v.
LUKE SCARMAZZO,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted August 31, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.
Because the parties are familiar with the facts of the case, we do not repeat
them here. In a companion opinion filed today, we affirm the trial court’s ruling
addressing the issue of alleged jury misconduct. As to the following issues, we
also affirm the judgment of the district court.
The district court did not plainly err by failing to sua sponte dismiss
Appellants’ indictment as a violation of the Tenth Amendment. See Raich v.
Gonzales, 500 F.3d 850, 867 (9th Cir. 2007) (citing Gonzales v. Raich, 545 U.S. 1,
32–33 (2005)).
The district court’s in limine rulings were proper because: (1) “medical
necessity is not a defense to manufacturing and distributing marijuana,” United
States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 494 (2001); (2) specific
knowledge of illegality was not an element of the crimes with which Appellants
were charged, see 21 U.S.C. § 841(a)(1), and therefore a good faith defense did not
apply, see Cheek v. United States, 498 U.S. 192, 199 (1991); and (3) Appellants
proffered no evidence that they reasonably relied on the advice of “a federal
government official empowered to render the claimed erroneous advice, or . . . an
authorized agent of the federal government,” United States v. Brebner, 951 F.2d
1017, 1027 (9th Cir. 1991) (citation omitted). Furthermore, these rulings did not
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deprive Appellants of any recognized liberty interest. See Washington v.
Glucksberg, 521 U.S. 702, 720–21 (1997).
We see no abuse of discretion in the district court’s admission of Appellant
Scarmazzo’s self-aggrandizing music video. See United States v. Verduzco, 373
F.3d 1022, 1029 n.2 (9th Cir. 2004) (“As long as it appears from the record as a
whole that the trial judge adequately weighed the probative value and prejudicial
effect of proffered evidence before its admission, we conclude that the demands of
Rule 403 have been met.” (quoting United States v. Sangrey, 586 F.2d 1312, 1315
(9th Cir. 1978)).
The district court’s jury instruction requiring that all jurors agree on which
offenses were committed by each defendant complied with Richardson v. United
States, 526 U.S. 813, 815 (1999). “A jury is presumed to follow its instructions.”
Weeks v. Angelone, 528 U.S. 225, 234 (2000). As a result, the jury’s guilty verdict
“necessarily means that all twelve jurors found that [Appellants] committed at least
three predicate felonies.” United States v. Montalvo, 331 F.3d 1052, 1059 (9th
Cir. 2003). A special verdict form was unnecessary. In addition, the district court
identified several counts included in the indictment, and on which the jury returned
verdicts of guilty, that qualified as federal felony narcotic offenses. No further
definition of that term was needed.
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Relying on the overwhelming evidence of guilt at trial, and construing that
evidence in the light most favorable to the prosecution, a rational fact finder could
find Appellants guilty of operating a continuing criminal enterprise in violation of
21 U.S.C. § 848, and possessing marijuana with intent to distribute in violation of
21 U.S.C. § 841. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Inconsistent jury verdicts are not a cognizable basis for reversal. United
States v. Powell, 469 U.S. 57, 65 (1984).
On this record, there is no evidence of vindictive prosecution. What charges
to bring is a decision that lies squarely within a prosecutor’s discretion, United
States v. Batchelder, 442 U.S. 114, 123 (1979), and Appellant Montes did not
make a prima facie case of prosecutorial vindictiveness, see United States v. Lopez,
474 F.3d 1208, 1211 (2007).
Nor did Appellant Montes show that his prosecution deprived him of equal
protection. The guarantee of equal protection prohibits selective enforcement
based upon an impermissible classification. Batchelder, 442 U.S. at 125 n.9.
Montes cannot prevail on a discriminatory prosecution claim because he did not
demonstrate that his prosecution “was based on an impermissible ground such as
race, religion or his exercise of his first amendment right to free speech.” United
States v. Scott, 521 F.2d 1188, 1195 (9th Cir. 1975).
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Appellant Montes was sentenced to the statutory minimum of twenty years.
His assertions to the contrary are rejected. Appellant Scarmazzo was sentenced to
just under twenty-two years. Appellants’ sentences are not grossly
disproportionate to their crimes and are, therefore, not unconstitutional. See Hutto
v. Davis, 454 U.S. 370, 374 (1982); United States v. Meiners, 485 F.3d 1211, 1213
(9th Cir. 2007).
AFFIRMED.
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