FILED
NOT FOR PUBLICATION
MAR 22 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50374
Plaintiff - Appellee, D.C. No. 2:13-cr-00706-RGK-2
v.
MEMORANDUM*
PHILLIP LAURENCE COOPER,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted September 1, 2015
Pasadena, California
Before: KOZINSKI, O’SCANNLAIN and BYBEE, Circuit Judges.
1. The government wasn’t required to “establish an intent to defraud as a
separate element” in order to obtain a conviction under 18 U.S.C. § 912. United
States v. Tomsha-Miguel, 766 F.3d 1041, 1050 (9th Cir. 2014). As the public
authority defense would not have negated any of section 912’s elements, Cooper
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
bore the burden of proof on this affirmative defense. See United States v. Doe, 705
F.3d 1134, 1146–47 (9th Cir. 2013). Because Cooper’s proposed public authority
instruction wasn’t supported by law, the district court didn’t err by rejecting it. See
id. at 1144.
2. Because the government didn’t separately have to prove intent to defraud,
the district court properly instructed the jury on the elements of section 912.
See Tomsha-Miguel, 766 F.3d at 1050. Accordingly, Cooper wasn’t entitled to a
good faith instruction. See United States v. Shipsey, 363 F.3d 962, 966–67 (9th
Cir. 2004).
3. Cooper’s motion to sever didn’t demonstrate that any possible prejudice
to him outweighed the interest in judicial economy. See United States v. Nolan,
700 F.2d 479, 482 (9th Cir. 1983). He failed to show that he had “important
testimony” to give on Count Four and a “strong need to refrain from testifying” on
Counts One and Three. Id. at 483. The district court therefore didn’t abuse its
discretion by denying the motion.
4. A reasonable juror could have concluded that Cooper both “pretended” to
be a law enforcement officer (by driving a vehicle that said “law enforcement”)
page 3
and “acted as such” (by stopping forest visitors and recording their personal
information). Tomsha-Miguel, 766 F.3d at 1045–46. Accordingly, the evidence
was sufficient to support the false-impersonation conviction.
5. There was also sufficient evidence to support the false-statement
conviction because reasonable jurors could have found that Cooper made one or
both of the statements that the government attributed to him. The jury could have
credited the testimony of Lomvardias and Ealy that Cooper said he never exited the
vehicle to interact with forest visitors, or Lomvardias’s testimony that Cooper said
he never asked any visitor for his identification. Cooper doesn’t challenge the
sufficiency of the evidence on the other elements of this offense.
AFFIRMED.