NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10441
Plaintiff-Appellee, D.C. No.
2:14-cr-01126-GMS-1
v.
KENNETH WAYNE MORGAN, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted May 15, 2017
San Francisco, California
Before: KLEINFELD and WARDLAW, Circuit Judges, and MORRIS,** District
Judge.
Defendant Kenneth Morgan, Jr. appeals his jury conviction and sentence for
assault resulting in serious bodily injury. We have jurisdiction under 28 U.S.C. §
1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
1. The district court did not clearly err when it rejected Morgan’s
assertion that intentional discrimination motivated the government’s peremptory
strike of an Asian-American prospective juror. The judge determined that the
government properly struck the juror because she previously had served on a hung
jury and she had expressed concerns about how fairly the defendant in that case
had been treated. The district court’s determination on discriminatory intent
represents a “finding of fact entitled to deference.” United States v. Steele, 298
F.3d 906, 910 (9th Cir. 2002). Service on a hung jury represents a legitimate
reason to exercise a peremptory strike. See United States v. Changco, 1 F.3d 837,
840 (9th Cir. 1993) (an “inability to relate to other jurors” is a valid, race-neutral
reason for excluding a prospective juror).
Hesitation regarding the fairness of criminal proceedings also provides a
proper basis for a peremptory strike. See Briggs v. Grounds, 682 F.3d 1165, 1174
(9th Cir. 2012) (holding “the prosecution to a higher burden of proof than the law
required” is a valid, race-neutral reason for excluding a juror). Further, concern
about a juror’s feelings regarding the fairness of criminal proceedings corresponds
with a valid for-cause reason to strike a juror—the inability of a juror to be fair to
the defendant. See Hernandez v. New York, 500 U.S. 352, 362–63 (1991). As
noted by the Supreme Court in Hernandez “the reason offered by the prosecutor
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for a peremptory strike need not rise to the level of a challenge for cause, the fact
that it corresponds to a valid for-cause challenge will demonstrate its race-neutral
character.” Id. (internal citations omitted).
2. The district court did not abuse its discretion when it denied Morgan’s
motion to give a self-defense instruction to the jury. A criminal defendant
possesses a constitutional right to have the jury instructed on his defense if the law
supports the requested instruction and it has some foundation in the evidence, even
if that evidence is “weak, insufficient, inconsistent, or of doubtful credibility.”
United States v. Sanchez-Lima, 161 F.3d 545, 549 (9th Cir. 1998) (internal
citations and quotations omitted). The “merest scintilla of evidence” falls short.
United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984). The district judge
correctly found that no record evidence existed to support a self-defense
instruction.
3. The district court did not abuse its discretion when it overruled
Morgan’s objection to the government’s assertion that the defendant “was slashing
at the victim” during closing and rebuttal arguments. The prosecutor’s statements
represented reasonable inferences from the evidence. Prosecutors enjoy
“reasonably wide latitude” in fashioning closing argument. United States v.
Gorostiza, 468 F.2d 915, 916 (9th Cir. 1972) (per curiam). A prosecutor may
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“strike hard blows” based on the evidence and all reasonable inferences derived
therefrom. United States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011) (internal
quotation omitted).
4. The prosecution did not violate Morgan’s Fifth Amendment right to
due process by singling him out for his “Indian blood.” We and the United States
Supreme Court have affirmed that 18 U.S.C. § 1153 does not violate defendants’
rights by singling them out based on their race. See United States v. Antelope, 430
U.S. 641, 645–47 (1977); United States v. Zepeda, 792 F.3d 1103, 1111–13 (9th
Cir. 2015) (en banc), cert. denied, 136 S. Ct. 1712 (2016). “[F]ederal regulation of
Indian affairs is not based upon impermissible classifications. Rather, such
regulation is rooted in the unique status of Indians as ‘a separate people’ with their
own political institutions.” Id. (quoting Antelope, 430 U.S. at 646).
5. The cumulative effect of error did not deprive Morgan of a fair trial.
Because the district court committed no error, there can be no cumulative effect.
6. The district court committed no procedural error and did not abuse its
discretion when it enhanced Morgan’s sentence under the Sentencing Guidelines
based on the allegation that he had possessed a dangerous weapon, although the
jury acquitted him of that charge. No Sixth Amendment violation occurs “when
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sentencing judges consider conduct underlying acquitted counts.” United States v.
Mercado, 474 F.3d 654, 657–58 (9th Cir. 2007).
7. The district court did not plainly err when it imposed supervised
release conditions requiring Morgan to meet “family responsibilities,” “work
regularly,” and permit a probation officer to visit “at any time” and confiscate
“contraband.” The conditions are appropriate given the facts and circumstances of
the case, and are “reasonably related to the goals of deterrence, protection of the
public, or rehabilitation of the offender.” United States v. Watson, 582 F.3d 974,
982 (9th Cir. 2009). No controlling precedent existed reversing the standard and
commonly imposed conditions on the grounds of vagueness or overbreadth at the
time the district court issued its decision. See United States v. Gnirke, 775 F.3d
1155, 1164 (9th Cir. 2015) (quoting United States v. Gonzalez-Aparicio, 663 F.3d
419, 428 (9th Cir. 2011) (“An error ‘cannot be plain where there is no controlling
authority on point and where the most closely analogous precedent leads to
conflicting results.’”)).
AFFIRMED.
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