FILED
NOT FOR PUBLICATION JUN 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10317
Plaintiff - Appellee, D.C. No. 2:07-cr-00014-JCM-RJJ-
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v.
LUIS ANGEL GONZALEZ-LARGO, MEMORANDUM*
AKA Lucho,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 14, 2011
San Francisco, California
Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.
Defendant-Appellant Luis Angel Gonzalez-Largo appeals his jury
conviction of one count of conspiracy to import five kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 963, 952, 960(b)(1)(B). As the facts and procedural
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
history are familiar to the parties, we do not recite them here except as necessary to
explain our decision. We affirm.
The district court did not abuse its discretion when it denied Gonzalez-
Largo’s motion to sever his trial from co-defendant Cobar. See United States v.
Sullivan, 522 F.3d 967, 981 (9th Cir. 2008). Gonzalez-Largo fails to show that
trial objections and witness examinations by co-defendant Cobar’s counsel
manifestly prejudiced Gonzalez-Largo or prevented him from obtaining a fair trial.
See United States v. Johnson, 297 F.3d 845, 855 (9th Cir. 2002). First, Gonzalez-
Largo does not demonstrate prejudicial “spillover” from witness testimony or
exhibits introduced at trial that related only to the charges against co-defendant
Cobar. See United States v. Hanley, 190 F.3d 1017, 1027 (9th Cir. 1999). Second,
the evidence presented against co-defendant Cobar was not so disproportionately
irrelevant to the charges against Gonzalez-Largo that the jury—heeding the trial
court’s instructions to only consider evidence as related to Gonzalez-Largo—could
not make a specific finding against him. See United States v. Nelson, 137 F.3d
1094, 1108 (9th Cir. 1998). Third, the co-defendants’ defenses were not
irreconcilable as the jury could assess Gonzalez-Largo’s defense of
“nonparticipation” in the conspiracy independently of co-defendant Cobar’s
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entrapment defense. See United States v. Buena-Lopez, 987 F.2d 657, 661 (9th
Cir. 1993).
We presume, without deciding, that the district court clearly erred in denying
Gonzalez-Largo’s challenge under Batson v. Kentucky, 476 U.S. 79 (1986), when it
permitted the prosecution to strike the only African-American who would have
served as an alternate juror. However, because the alternate juror was never called
upon to serve as a regular juror, any error was harmless. See Nevius, v. Sumner,
852 F.2d 463, 468 (9th Cir. 1988).
The district court did not err in permitting the admission of Exhibit 22a into
evidence. The reference in Exhibit 22a was not unduly prejudicial under Federal
Rule of Evidence 403 where Gonzalez was not explicitly linked to the mentioned
paramilitary group, and the transcript was highly probative of Gonzalez-Largo’s
participation in the conspiracy. Even if there was error in admitting the evidence,
it was harmless because there was sufficient other evidence of Gonzalez-Largo’s
involvement in the attempted sale of cocaine to the undercover detective and he
has not demonstrated that this one reference to an unidentified “paramilitary
commander” more probably than not affected his guilty verdict. See United States
v. McInnis, 976 F.2d 1226, 1231–32 (9th Cir. 1992).
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The district court did not err when it only instructed the jury as to one
conspiracy. The jury was only charged with determining whether Gonzalez-Largo
engaged in a conspiracy with co-defendant Cobar, not whether Cobar was engaged
in a conspiracy with the other two suppliers. Cf. United States v. Fernandez, 388
F.3d 1199, 1247 (9th Cir. 2004). Even if the instruction was erroneous, Gonzalez-
Largo fails to show that his substantial rights were affected. United States v.
Alghazouli, 517 F.3d 1179, 1188 (9th Cir. 2008).
The district court did not err in denying Gonzalez-Largo’s motion for
judgment of acquittal. United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir.
2008). There was sufficient evidence of Gonzalez-Largo’s intent to import cocaine
into the United States to support his conviction. At trial, there was evidence that
Gonzalez-Largo intended to sell cocaine to co-defendant Cobar’s clients, whom
Gonzalez-Largo knew were located in the United States. From this, a jury could
reasonably infer that Gonzalez-Largo had the requisite intent to engage in a
conspiracy to import cocaine to the United States.
The district court did not commit clear error at sentencing, as the jury made
a threshold determination of the drug quantity. Id. at 1215. The jury made a
threshold finding that Gonzalez-Largo was guilty of conspiracy to import “five
kilograms or more” of cocaine, subjecting him to a statutory minimum term of
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imprisonment “of not less than 10 years” and a maximum of “not more than life.”
21 U.S.C. § 960(b)(1). The district court found, based on a preponderance of the
evidence that Gonzalez-Largo was responsible for his part in the conspiracy for
400 kilograms and sentenced him to 235 months. See Gonzalez, 528 F.3d at 1214;
United States v. Kilby, 443 F.3d 1135, 1142 (9th Cir. 2006). Hence, the district
court did not apply a higher statutory maximum at sentencing than the jury’s
threshold finding. See United States v. Banuelos, 322 F.3d 700, 702 (9th Cir.
2003) (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)).
AFFIRMED.
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