FILED
NOT FOR PUBLICATION
NOV 06 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10472
Plaintiff - Appellee, D.C. No. 2:07-cr-00145-KJD-
PAL-3
v.
JAMES MILTON WALLIS, MEMORANDUM*
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-10502
Plaintiff - Appellee, D.C. No. 2:07-cr-00145-KJD-
PAL-8
v.
CHARLES EDWARD GENSEMER,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-10503
Plaintiff - Appellee, D.C. No. 2:07-cr-00145-KJD-
PAL-14
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ROBERT ALLEN YOUNG,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-10000
Plaintiff - Appellee, D.C. No. 2:07-cr-00145-KJD-
PAL-7
v.
KENNETH RUSSELL KRUM,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-10125
Plaintiff - Appellee, D.C. No. 2:07-cr-00145-KJD-
PAL-10
v.
MICHAEL WAYNE YOST,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, Senior District Judge, Presiding
Argued and Submitted October 19, 2015
San Francisco, California
2
Before: SILVERMAN and CHRISTEN, Circuit Judges and DUFFY,** District
Judge.
This is a RICO and drug conspiracy case. The government charged James
Wallis, Charles Gensemer, Robert Young, Kenneth Krum, Michael Yost, and eight
others with conspiracy to engage in a racketeer influenced corrupt organization
(RICO), violent crimes in aid of racketeering, drug conspiracy, and illegal
possession of firearms. The indictment followed from a multi-year investigation
into activities of the Aryan Warriors (AW), a gang that operated in Nevada state
prisons. On appeal, defendants claim the district court committed several errors
during the trial and at sentencing that warrant reversal of their convictions or
reduction of their sentences. We have jurisdiction under 28 U.S.C. § 1291. With
one exception, we affirm.1
1. The jury instructions accurately stated the law on RICO conspiracy.
Unlike common law conspiracy, which requires that a participant specifically
intend the object of the conspiracy be accomplished, RICO conspiracy requires
only “that two or more people agreed to commit a[t least two] crime[s] covered by
**
The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
1
The parties are familiar with the facts, so we do not recount them at
length here.
3
the [RICO] . . . statute (that a conspiracy existed) and that the defendant knowingly
and willfully participated in the agreement (that he was a member of the
conspiracy).” Smith v. United States, 133 S. Ct. 714, 719 (2013); see also United
States v. Christensen, 801 F.3d 970, 986 (9th Cir. 2015) (“[A] RICO conspiracy
under § 1962(d) requires only that the defendant was aware of the essential nature
and scope of the enterprise and intended to participate in it.” (internal citation
omitted)). For this reason, the district judge did not err when it declined to instruct
the jury on specific intent. See United States v. Blinder, 10 F.3d 1468, 1477 (9th
Cir. 1993) (reaching the same conclusion on similar facts).
2. We affirm the district court’s denial of Yost’s motion for an evidentiary
hearing pursuant to Lafler v. Cooper. See 132 S. Ct. 1376, 1384 (2012) (the right
to effective assistance of counsel applies at the plea negotiations stage). We agree
with Yost that the district court erred when it found “[w]hether under the sentence
already imposed or under the proffered plea agreement, Yost will receive ten years
custody,” and dismissed Yost’s ineffective assistance of counsel (IAC) claim under
Lafler’s prejudice prong. Id. at 1384–85. In fact, Yost’s sentence is four years
longer than that which the government offered; this four-year difference could be
grounds for a finding of prejudice under Lafler. See id. at 1385. However,
consistent with long-standing circuit preference, we decline to entertain Yost’s
4
IAC claim on direct appeal. United States v. Jeronimo, 398 F.3d 1149, 1155 (9th
Cir. 2005) (“[A]s a general rule, we do not review challenges to the effectiveness
of defense counsel on direct appeal.”), overruled on other grounds by United States
v. Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). Although there are
exceptions to this general rule, none of those exceptions apply here. United States
v. Rahman, 642 F.3d 1257, 1259–60 (9th Cir. 2011) (courts may entertain IAC
claims on direct appeal if, for example, the “record on appeal is sufficiently
developed to permit determination of the issue”). Yost’s claim is better presented
in a 28 U.S.C. § 2255 proceeding in which the district court can properly develop
the record. See 28 U.S.C. § 2255(b) (discussing § 2255’s hearing requirement).
Yost’s co-defendants’ Lafler claim is likewise premature on direct appeal,
but nothing in this disposition prevents them from raising the issue on collateral
review. See id.
3. We affirm the district court’s dismissal of defendants’ motion for a new
trial pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Withheld evidence about
witness Michael Alvarez’s work as a confidential informant with the Nevada
Department of Corrections would have been cumulative of testimony elicited
during direct and cross-examination, and was therefore not “material” under Brady.
See United States v. Rodriguez, 766 F.3d 970, 989 (9th Cir. 2014).
5
4. The district court did not abuse its discretion when it denied defendants’
Federal Rule of Criminal Procedure 33 motion for a new trial based on newly
discovered evidence. See United States v. King, 735 F.3d 1098, 1108 (9th Cir.
2013) (discussing standard of review). Allegations that Officer Yant “[was] a
serial liar known for falsifying affidavits for search warrants” and “Agent Reubart
[had] an addiction to prescription pain medication” do not require a new trial
because such allegations would have been useful merely to impeach these
witnesses. See United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en
banc); United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005) (absent
extreme circumstances not present here, new evidence that would be merely
impeaching does not create grounds for a new trial). Defendants’ motion for a new
trial based on the allegedly fraudulent “Neff Letter” likewise fails: the government
disclosed the Neff Letter during discovery, and defendants had time to interview
Neff before trial. Thus, “the failure to discover the evidence sooner [was] the
result of a lack of diligence on [defendants’] part.” Harrington, 410 F.3d at 601.2
Finally, because the district court properly concluded that defendants’ showing did
not create grounds for a new trial, the court did not abuse its discretion when it
2
Defendants’ motion to supplement the record with evidence of Reubart’s
drug convictions and an affidavit from John Neff is GRANTED. See ECF No. 65.
6
denied defendants’ Rule 33 motion without an evidentiary hearing. See United
States v. Lopez, 762 F.3d 852, 866–67 (9th Cir. 2014).
5. The district court did not err when it admitted dozens of out of court
communications as “statements of a coconspirator” under Federal Rule of
Evidence 801(d)(2)(E). After reviewing the trial transcript, we are satisfied that
each statement admitted by the district court under Rule 801(d)(2)(E) “was made
by the party’s coconspirator during and in furtherance of the conspiracy.” Fed. R.
Evid. 801(d)(2)(E); see also United States v. Bowman, 215 F.3d 951, 960–61 (9th
Cir. 2000). If the district court did err when admitting any of the individual
statements, that error was harmless in light of the overwhelming evidence against
defendants. See United States v. Garza, 980 F.2d 546, 553 (9th Cir. 1992) (Rule
801(d)(2)(E) error subject to harmlessness analysis).
6. Sufficient evidence supports Krum’s drug conspiracy conviction. See 21
U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(viii). From the evidence presented at trial,
a rational juror could conclude the following: Krum knew AW members were
producing methamphetamine outside the prison; those individuals were selling
drugs to support gang activities; as a lieutenant in the AW, Krum benefitted from
this support while incarcerated; and, after his release, Krum agreed to participate
and did participate in this drug manufacturing and distribution operation. This is
7
sufficient to support Krum’s drug conspiracy conviction. See United States v.
Moe, 781 F.3d 1120, 1124 (9th Cir. 2015) (elements of a drug conspiracy include
“(1) an agreement to accomplish an illegal objective, and (2) the intent to commit
the underlying offense” (internal citation omitted)); Jackson v. Virginia, 443 U.S.
307, 319 (1979).
7. Finally, with one exception, the district court did not err when it
calculated defendants’ U.S. Sentencing Guidelines ranges. United States v.
Treadwell, 593 F.3d 990, 999 (9th Cir. 2010) (“Failure to calculate correctly the
Guidelines range . . . constitutes reversible error. . . .”).
(a) Wallis.3 The district court did not abuse its discretion when it
elected to run Wallis’s federal sentence partially consecutive to his undischarged
state sentence. See United States v. Shouse, 755 F.3d 1104, 1108 (9th Cir. 2014);
see also 18 U.S.C. § 3584(a) (“[I]f a term of imprisonment is imposed on a
defendant who is already subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively. . . .” (emphasis added)). The
sentencing judge explained the factors that influenced his decision to run the
3
We GRANT Wallis’s motion to supplement the record with evidence of his
prior Nevada conviction. See ECF No. 65.
8
federal sentence partially concurrent to the state sentence, and his explanation was
sufficient under our sentencing law.
(b) Gensemer. Although the district court likely erred by designating
Gensemer a career offender based on a prior Nevada burglary conviction, United
States v. Edwards, 734 F.3d 850, 853–54 (9th Cir. 2013), that error was harmless
because it did not increase Gensemer’s Guidelines range. See U.S. Sentencing
Guidelines Manual § 4B1.1(b) & sentencing table (U.S. Sentencing Comm’n
2007).4 Nor did the district court err by failing to resolve a factual dispute before
sentencing.
Finally, under any standard of review,5 the district court did not err when it
applied the following enhancements to Gensemer: U.S. Sentencing Guidelines
Manual § 2D1.1(b)(3) (distribution of a controlled substance in a prison) (increase
by two levels); and U.S. Sentencing Guidelines Manual § 2D1.1(b)(10)(C)(ii) (risk
of harm to the environment) (increase by three levels). Substantial record evidence
shows that Gensemer participated in a drug distribution program one object of
4
All citations are to the 2007 version of the Guidelines.
5
“There is an intracircuit split as to whether the standard of review for
application of the Guidelines to the facts is de novo or abuse of discretion.” United
States v. Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014). Because the standard of
review does not alter the outcome of this appeal, we do not undertake to resolve
that conflict here.
9
which was to smuggle drugs into Nevada prisons. Also, the methamphetamine lab
that Gensemer ran for at least four years—and in which police found precursor
chemicals that would yield more than 850 grams of methamphetamine—was
located in a residential neighborhood. U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(10)(C)(ii) & cmt. n.20 (discussing factors to consider for imposition of
this enhancement).
(c) Krum. Krum’s claim that the Sixth Amendment prohibited the
district court from increasing Krum’s Guidelines Range based on a drug amount
larger than that found by the jury is foreclosed by circuit precedent. United States
v. Mercado, 474 F.3d 654, 657 (9th Cir. 2007) (“[T]he district court could
constitutionally consider the acquitted conduct” so long as that conduct is
established by a preponderance of the evidence). And record evidence supports the
district court’s decision to hold Krum responsible for 200–350 grams of
methamphetamine. The jury found Krum “Guilty of Drug Conspiracy as charged
in Count Ten of the Superseding Indictment,” and sufficient evidence supports this
conviction. Krum’s roommate, Kory Crossman, sold between 200 and 350 grams
of methamphetamine to a government informant as part of this drug conspiracy.
Krum lived with Kory Crossman at the Pacific Terrace house where officers seized
evidence of the drug conspiracy, and trial testimony established that Krum and
10
Crossman worked together to facilitate the AW’s street program. This evidence is
sufficient to support the district court’s express finding that the “amount of
methamphetamine that was the subject of the conspiracy was reasonably
foreseeable” to Krum. See United States v. Reyes, 772 F.3d 1152, 1157 (9th Cir.
2014) (a sentencing court properly attributes to defendant the acts of his
coconspirators as long as it finds those acts were: (1) reasonably foreseeable to
defendant, and (2) done “in furtherance of the jointly undertaken criminal
activity”); see also United States v. Kilby, 443 F.3d 1135, 1142 (9th Cir. 2006)
(coming to the same conclusion on similar facts).
The district court did not err when it imposed the following enhancements
on Krum: U.S. Sentencing Guidelines Manual § 2D1.1(b)(10)(C)(ii) (risk of harm
to the environment) (increase by three levels); and U.S. Sentencing Guidelines
Manual § 2D1.1(b)(1) (firearms enhancement) (increase by two levels). Krum
worked with Gensemer to facilitate the AW street program, and witnesses saw him
at a residential methamphetamine lab where officers seized dangerous precursors
to methamphetamine. Trial witnesses also identified Krum as a methamphetamine
cook associated with the AW: “And how [did you know] . . . that Kenny Krum
was cooking methamphetamine?” A: “From his own mouth.” Krum was observed
participating in the cooking process at least one time at the Helm Street house.
11
Based on this evidence, the district court did not err in finding that ongoing drug
production at a methamphetamine lab in a residential Las Vegas community was
foreseeable to Krum and done in furtherance of the drug conspiracy. See U.S.
Sentencing Guidelines Manual § 1B1.3(a)(1)(B). Also, Government witness
Michael Calabrese testified that Krum sold him a .357 pistol when the two were
“cookin’ and . . . usin’ meth” together. This testimony establishes that Krum
possessed a gun, and it does not suggest the weapon was unconnected to the
offense. See U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) cmt. n.3 (noting
that this “adjustment should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense”).
Nevertheless, the district court did err when it increased Krum’s offense
level by two points after finding Krum to be “an organizer, leader, manager, or
supervisor in any criminal activity.” See U.S. Sentencing Guidelines Manual
§ 3B1.1 (aggravating role enhancement). Because the record does not support the
conclusion that Krum had “some degree of control or organizational authority over
others,” United States v. Bonilla–Guizar, 729 F.3d 1179, 1186 (9th Cir. 2013)
(internal citation omitted), imposition of this enhancement was improper. In light
of this error, we vacate Krum’s sentence and remand for resentencing.
12
(d) Yost. Yost’s claim that the district court violated his Sixth
Amendment rights when it used acquitted conduct to increase his Guidelines range
is foreclosed by circuit precedent. Mercado, 474 F.3d at 657.
Yost joins Gensemer in objecting to the district court’s imposition of the
“harm to the environment” enhancement, but Yost does not explain how the
district court erred when it applied this enhancement to him. Thus, for the reasons
outlined above relating to Gensemer, we affirm the district court’s application of
§ 2D1.1(b)(10)(C)(ii) to Yost.
(e) Young. The district court did not err when it used Young’s
Nevada battery-by-a-prisoner-in-lawful-custody conviction, Nev. Rev. Stat.
§ 200.481, as a predicate to impose the “career offender” provision in the
Guidelines. See U.S. Sentencing Guidelines Manual § 4B1.1 (defining “career
offender”). The record makes clear that the conduct underlying Young’s RICO
conviction was his extortion of Michael Alvarez, not his battery of Scott Irvin.
Thus, there is no risk that the district court “double counted” Young’s battery-by-a-
prisoner conviction by relying on it to apply the § 4B1.1 enhancement.
Finally, the district court did not abuse its discretion when it declined to
reduce Young’s sentence under U.S. Sentencing Guidelines Manual § 3E1.1(a)
13
(acceptance of responsibility). Young neither pleaded guilty nor “clearly
demonstrate[d] acceptance of responsibility” at sentencing. See id.
In sum, we AFFIRM each defendants’ convictions; AFFIRM each
defendants’ sentence with the exception of Krum’s; and VACATE and REMAND
Krum’s sentence for resentencing.
14