FILED
NOT FOR PUBLICATION JAN 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50081
Plaintiff - Appellee, D.C. No. 2:09-cr-00783-JHN-3
v.
MEMORANDUM*
GALVIN GIBSON,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50090
Plaintiff - Appellee, D.C. No. 2:09-cr-00783-JHN-1
v.
VAGAN ADZHEMYAN,
Defendant - Appellant.
Appeals from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Argued and Submitted December 9, 2014
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GILMAN,** GRABER, and CALLAHAN, Circuit Judges.
Defendants-Appellants Galvin Gibson (“Gibson”) and Vagan Adzhemyan
(“Adzhemyan”) appeal their convictions for kidnapping and conspiracy to kidnap
under 18 U.S.C. § 1201.1 We have jurisdiction pursuant to 18 U.S.C. § 3742 and
28 U.S.C. § 1291, and we affirm.
1. The district court permissibly excluded Defendants’ justification
defense. A party seeking to assert a justification defense must make a pretrial offer
of proof establishing that “(1) he was under unlawful and present threat of death or
serious bodily injury; (2) he did not recklessly place himself in a situation where he
would be forced to engage in criminal conduct; (3) he had no reasonable legal
alternative; and (4) there was a direct causal relationship between the criminal
action and the avoidance of the threatened harm.” United States v. Gomez, 92 F.3d
770, 775 (9th Cir. 1996) (citations and internal quotation marks omitted).
Defendants did not make the required showing because 1) even though there was
evidence of a murder-for-hire plot, Adzhemyan learned about it four or five
**
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
1
Gibson also appealed his conviction for marijuana manufacturing under 21
U.S.C. § 841 but offered no argument on why that conviction should be
overturned. We therefore do not address Gibson’s drug conviction.
2
months before the kidnapping, received no threats, much less any recent and
specific threats, and was not under surveillance; 2) Adzhemyan was reckless when
he and at least one associate confronted the victim in the middle of the night with a
baseball bat and a taser; 3) Adzhemyan did not attempt to contact authorities and
did not show that such contact would be futile; and 4) Defendants offer no
explanation why they needed to hold the victim for four days.
2. The district court erred by failing to include the “for ransom, reward,
or benefit” language from the jury instruction, because the government must allege
and prove that Defendants obtained some benefit through the abduction. See 18
U.S.C. § 1201(a); Gooch v. United States, 297 U.S. 124, 126–28 (1936)
(concluding that addition of phrase “or otherwise” into federal kidnapping statute
extended jurisdiction of statute “to persons who have been kidnaped and held, not
only for reward, but for any other reason”) (citation and internal quotation marks
omitted). Nevertheless, the error was harmless because of the uncontroverted
evidence that Defendants used the victim’s ATM card to obtain cash from the
victim’s bank account. See United States v. Thongsy, 577 F.3d 1036, 1043 (9th
Cir. 2009).
3. There was no constructive amendment of the indictment. The
“complex of facts” proved at trial was not “distinctly different from those set forth
3
in the charging instrument,” and there was no evidence introduced at trial that
would have enabled the jury to convict Defendants for conduct with which they
were not charged. See United States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir.
2012) (citation and internal quotation marks omitted); United States v. Ward, 747
F.3d 1184, 1191 (9th Cir. 2014).
Even if there was a variance, it does not mandate reversal. Any divergence
between the facts alleged in the indictment and those offered at trial were
immaterial or otherwise nonprejudicial because Defendants were on notice of the
shift in the government’s theory and because of the overwhelming evidence of
Defendants’ guilt. See Ward, 747 F.3d at 1190.
4. The district court did not abuse its discretion in excluding evidence on
the alleged murder-for-hire plot and the victim’s alleged ties to organized crime.
In reviewing whether a court abused its discretion in excluding evidence or
limiting testimony, we look to 1) whether the excluded evidence was relevant; 2)
whether other legitimate interests outweighed the defendant’s interest in presenting
the evidence; and 3) whether the exclusion of that testimony left the jury with
sufficient information to assess the witness’s credibility. United States v. Larson,
495 F.3d 1094, 1103 (9th Cir. 2007) (en banc).
4
In light of the district court’s exclusion of Defendants’ justification defense,
the district court did not abuse its discretion in finding that, under Federal Rule of
Evidence 403, the probative value of the testimony in establishing the victim’s bias
was outweighed by the potential confusion of the issues for the jury. Further, even
assuming the district court erred in limiting testimony, any error was harmless in
light of the overwhelming evidence of Defendants’ guilt. See id. at 1107–08.
5. Defendants have not shown a violation of Brady v. Maryland, 373
U.S. 83 (1963), or Napue v. Illinois, 360 U.S. 264 (1959). To establish a Brady
violation, a defendant must show that 1) the evidence at issue was favorable to the
accused; 2) the evidence was suppressed by the government; and 3) the defendant
was prejudiced by the suppression. Strickler v. Greene, 527 U.S. 263, 281–82
(1999). A defendant is not prejudiced under Brady unless the suppressed evidence
is material, meaning that “there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different.” Id. at 280 (citation and internal quotation marks omitted). Because of
the overwhelming evidence of their guilt, Defendants have not shown the required
reasonable probability that the result at trial would have been different absent the
alleged violations.
5
To establish a Napue violation, the defendant must show that the testimony
was “actually false,” the government knew or should have know that the testimony
was actually false, and the false testimony was material. United States v. Houston,
648 F.3d 806, 814 (9th Cir. 2011). Defendants have not shown that the victim
gave “actually false” testimony. Nor have they shown that the alleged false
testimony was material, in light of the overwhelming evidence of their guilt.
AFFIRMED.
6