FILED
NOT FOR PUBLICATION JAN 21 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10574
Plaintiff - Appellee, D.C. No. 2:11-cr-00407-KJM-1
v.
MEMORANDUM*
ERWIN SHANE STAMPER,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted January 15, 2015**
San Francisco, California
Before: O’SCANNLAIN and CLIFTON, Circuit Judges, and ADELMAN, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
Erwin Stamper appeals his jury conviction for conspiracy to commit an
assault resulting in serious bodily injury, in violation of 18 U.S.C. § 371. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
I
Sufficient evidence supports Stamper’s conviction for conspiracy to commit
an assault resulting in serious bodily injury. Such evidence demonstrated that
Stamper spent a majority of his recreation time with his fellow assailants, that the
attackers lulled the victim and the on-site guard into a false sense of security, that
the attackers ensured that their handcuffs were removed before the victim’s, and
that the attack started without any verbal signal. Viewing the evidence in the light
most favorable to the prosecution, a rational juror could have found the existence
of a conspiratorial agreement beyond a reasonable doubt. See United States v.
Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc).
II
The district court did not abuse its discretion in using jury instructions that
mirrored the Ninth Circuit’s model instructions. The jury instructions properly
required that the jury find that the overt act was committed for “the purpose of
carrying out the conspiracy.” Such language naturally requires that the
conspiratorial agreement exist before the overt act occurred.
AFFIRMED.