FILED
NOT FOR PUBLICATION
NOV 09 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10203
Plaintiff-Appellee, D.C. No.
2:13-cr-00148-JAD-GWF-2
v.
ALEXIS TORRES SIMON, MEMORANDUM*
and
Defendant-Appellant. ORDER
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted October 21, 2016
San Francisco, California
Before: GRABER and MURGUIA, Circuit Judges, and O’CONNELL,** District
Judge.
Defendant Alexis Torres Simon and two co-defendants conspired with a
confidential informant to rob drugs from a delivery van’s driver, by abducting him
and stealing his van. When arrested, en route to commit that crime, Simon was in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Beverly Reid O’Connell, United States District Judge for
the Central District of California, sitting by designation.
possession of a firearm. Simon and a co-defendant also engaged in three earlier
completed thefts. A jury convicted Simon of conspiracy to interfere with
commerce by robbery, in violation of 18 U.S.C. § 1951; possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g); conspiracy to commit theft in an
interstate shipment, in violation of 18 U.S.C. § 371; and three counts of theft from
an interstate shipment, in violation of 18 U.S.C. § 659. The district court then
sentenced him to 192 months’ imprisonment. With the exception of one
sentencing issue, on which we defer ruling, we affirm.
1. Simon challenges the sufficiency of the evidence to support his
conviction on Count 6, which alleged illegal possession of a firearm by a felon.
Having failed to raise this argument in the district court, he did not preserve the
issue. Therefore, we review for plain error. United States v. Sullivan, 797 F.3d
623, 632 n.5 (9th Cir. 2015), cert. denied, 136 S. Ct. 2408 (2016). There was no
error because a reasonable jury could find, beyond a reasonable doubt, that Simon
committed the offense. For instance, Simon was recorded the day before the
robbery, stating that he had a gun and planned to clean it that night so that it
"doesn’t matter if it gets lost," and Simon told "confidential human source" Corona
on the morning of the robbery that he had a gun. The jury was permitted to credit
Corona’s testimony, and we "must respect the province of the jury to ascertain the
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credibility of witnesses." United States v. Stewart, 420 F.3d 1007, 1015 (9th Cir.
2005) (internal quotation marks omitted).
2. Simon argues that the district court erred by excluding certain proffered
evidence concerning Special Agent Christensen and Corona, and by limiting the
opportunity to question Christensen about his compliance with FBI Guidelines.
We review for abuse of discretion the district court’s exclusion of evidence.
United States v. Backman, 817 F.3d 662, 665 (9th Cir. 2016). Simon also argues
that the exclusion of the disputed evidence amounted to a due process violation
because it deprived him of a defense. We review that claim de novo. United
States v. Bahamonde, 445 F.3d 1225, 1228 n.2 (9th Cir. 2006).
After carefully considering all of the proffered evidence and the testimony at
trial, we conclude that the district court did not abuse its discretion in excluding the
evidence under Federal Evidence Rule 403. For example, the probative value of
photographs posted on Corona’s Facebook page was substantially outweighed by
the risk of unfair prejudice. Similarly, the probative value of the state prosecutor’s
recollection about whether Christensen made a formal recommendation of
probation for Corona was substantially outweighed by the potential for juror
confusion, undue delay, and cumulative evidence. Extensive evidence
demonstrated that, because of Christensen’s efforts, Corona received a significant
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benefit in state court from his assistance. Even assuming that the details of what
others recalled about what Christensen said, to whom, and when were probative as
to Christensen’s bias and credibility, the court did not abuse its discretion in
concluding that those details were very far removed from the issues relevant at trial
and, accordingly, caused too great a risk of confusion and delay.
Simon’s constitutional argument also fails:
While the Constitution . . . prohibits the exclusion of defense
evidence under rules that serve no legitimate purpose or that are
disproportionate to the ends that they are asserted to promote,
well-established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other factors
such as unfair prejudice, confusion of the issues, or potential to
mislead the jury. See, e.g., Fed. Rule Evid. 403.
Holmes v. South Carolina, 547 U.S. 319, 326 (2006). Simon was not deprived of a
defense because he and his co-defendants introduced much evidence on the subject
of the relationship between Christensen and Corona and much evidence on the
subject of their lack of credibility. Simon had the opportunity to, and did, cross-
examine both Christensen and Corona, and he could and did argue vigorously to
the jury that they lied.
3. Simon’s challenge to the district court’s failure to strike a particular juror
for cause is foreclosed by precedent. The juror was stricken through a peremptory
strike. The exercise of a peremptory strike precludes an argument that the same
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juror should have been removed for cause. United States v. Martinez-Salazar, 528
U.S. 304, 317 (2000).
4. Next, Simon contends that the prosecutor impermissibly commented
twice, during rebuttal closing argument, on Simon’s silence, in violation of Griffin
v. California, 380 U.S. 609, 615 (1965). As to one of the statements, we review for
abuse of discretion because Simon objected, but as to the other we review for plain
error because there was no objection. United States v. Stinson, 647 F.3d 1196,
1211 (9th Cir. 2011); United States v. Doss, 630 F.3d 1181, 1193 (9th Cir. 2011).
We see no error. Neither statement, when considered in context, is reasonably
understood as having commented on Simon’s silence. Moreover, the court gave an
appropriate instruction following the objection to one of the statements.
5. Simon argues that the district court erred in various ways in its handling
of Agent Easter’s testimony concerning the probable locations of cell phones used
by Simon and his co-defendants during one of the thefts. Because Simon did not
preserve any of the arguments he makes on appeal, we review for plain error. Fed.
R. Crim. P. 52(b). Under the standard for plain error, United States v. Olano, 507
U.S. 725, 734 (1993), we find none, including in the district court’s determination
that the testimony was reliable.
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6. With respect to his sentence, Simon asserts that the district court erred in
applying a two-level enhancement under U.S.S.G. § 3B1.1(c) for being an
organizer or leader of criminal activity. The district court did not err. Among
other acts demonstrating his leadership role, Simon arranged for one of the co-
defendants to be added to the conspiracy in the final hours before the planned
abduction, and he instructed Corona on how to meet up with the co-defendant,
where to park, where to drive, what car to use, and other details.
7. Finally, Simon argues that the district court committed a procedural error
at sentencing by applying U.S.S.G. § 2X1.1. In Simon’s view, the court was
required to apply U.S.S.G. § 2B3.1. The district court applied several
enhancements through operation of § 2X1.1 that likely would not have applied
under § 2B3.1. We defer ruling on that issue.
Convictions AFFIRMED. Future proceedings in this case are stayed until
further order of the court. Petitions for rehearing and petitions for rehearing en
banc may be filed under the ordinary deadlines, but any petition may address only
the issues resolved in this disposition.
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