FILED
NOT FOR PUBLICATION
JUL 03 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10504
Plaintiff-Appellee, D.C. No. 4:15-cr-01387-JAS-BGM-1
v.
MEMORANDUM*
DONNIE RAY JOSE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted March 4, 2019
Phoenix, Arizona
Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.
Donnie Ray Jose appeals his convictions for assault with a dangerous
weapon, in violation of 18 U.S.C. §§ 113(a)(3) and 1153, and assault resulting in
serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. We affirm,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
but remand to the district court to revise one of the written supervised release
conditions to match the oral pronouncement at sentencing.
1. The district court did not abuse its discretion by continuing trial for
fourteen days after the prosecutor discovered a recording of Tohono O’odham
police officers interviewing the victim. In determining whether a continuance is
appropriate, trial courts should consider (1) the requesting party’s diligence, (2) the
utility of the continuance, (3) inconvenience to the court and the other side, and (4)
prejudice. See United States v. Pope, 841 F.2d 954, 956 (9th Cir. 1988). The
majority of those factors supported the trial court’s decision here. The government
made a good faith attempt to meet its discovery obligations. The continuance
opened the door for the potential consideration of relevant evidence. Jose suffered
no prejudice because the two-week continuance allowed him to digest the
recording and make any necessary changes to his defense strategy. See United
States v. Sukumolachan, 610 F.2d 685, 688 (9th Cir. 1980) (per curiam).
Jose contends that he suffered a different form of prejudice: If the recording
had been excluded, Jose could have argued that the victim had recently fabricated
her explanation of how she was able to identify Jose as her attacker. That defense
was thwarted by the recording and the court’s ruling that, even though the
recording could not be introduced in the prosecution’s case-in-chief, it could be
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used to rebut a fabrication claim. “[T]hat is not the sense in which [a defendant]
must demonstrate prejudice.” United States v. Espericueta-Reyes, 631 F.2d 616,
623 n.6 (9th Cir. 1980) (rejecting a similar argument); United States v. Eddy, 549
F.2d 108, 113 (9th Cir. 1976) (same). Jose was not entitled to have the recording
excluded because it “damaged [his] case.” Eddy, 549 F.3d at 113. Consequently,
the majority of the pertinent factors favored continuing trial for two weeks. The
district court did not abuse its discretion by doing so.1
2. We also reject Jose’s assertion that he is entitled to a new trial because
two witnesses violated an in limine ruling by referencing his prior acts of domestic
violence. Because Jose did not object, this court reviews for plain error. United
States v. Hanley, 190 F.3d 1017, 1029 (9th Cir. 1999), superseded on other
grounds by U.S.S.G. 2S1.1. None of the challenged statements directly referenced
Jose’s prior abuse. As a result, it was not “clear-cut” or “obvious” that the
testimony violated the in limine ruling. United States v. Wahid, 614 F.3d 1009,
1015 (9th Cir. 2010). The district court did not plainly err by admitting it. See id.
1
For the same reasons, the district court did not abuse its discretion by
permitting the government to use the recording in rebuttal, or by rejecting Jose’s
proposed solution, which was preclude all references to the scent of his cologne.
See Sukumolachan, 610 F.2d at 688.
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3. Jose’s assertion that he is entitled to a new trial because of three
purported instances of prosecutorial misconduct also lacks merit. The prosecutor
did not act improperly by asking several witnesses how the stabbing affected them
or by responding to defense counsel in her closing argument. Even if the
prosecutor acted improperly by discussing during closing the impact of the
stabbing on several young children, Jose suffered no prejudice. Substantial
evidence established Jose’s guilt. Jose and the victim argued shortly before the
stabbing, several witnesses testified that Jose was the assailant, and Jose did not
identify another credible suspect. Moreover, the prosecutor’s argument would not
have had a significant impact on the jury. The evidence showed that several young
children witnessed the stabbing, and the jury would have understood that to be a
traumatic experience even if the prosecutor had said nothing. Under those
circumstances, the prosecutor’s closing argument did not affect Jose’s substantial
rights. The district court did not plainly err by permitting it. In addition, for same
reasons discussed above, there was no cumulative error.
4. As the Supreme Court recently reaffirmed, prosecutions under the laws of
separate sovereigns do not violate the Double Jeopardy Clause. Gamble v. United
States, 139 S. Ct. 1960, 1964 (2019). Jose was initially prosecuted by the Tohono
O’odham Nation, a government with “inherent and independent sovereignty.” See
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United States v. Male Juvenile, 280 F.3d 1008, 1020 (9th Cir. 2002).
“Accordingly, the subsequent federal prosecution did not violate the Double
Jeopardy Clause.” Id.
5. The district court did not plainly err by imposing a condition of
supervised release that prohibits Jose from contacting the victim’s family
members, some of whom were also related to Jose. The rationale underlying that
condition is apparent from the record: the court reasonably concluded that it was
necessary to protect both the victim and her family. More specific findings were
not necessary, because the condition does not prevent Jose from contacting his own
intimate family members, such as his children or a life partner. See United States
v. Wolf Child, 699 F.3d 1082, 1090, 1093-94 (9th Cir. 2012); United States v.
Napulou, 593 F.3d 1041, 1047 (9th Cir. 2010).
6. Finally, we reject Jose’s challenge to the condition of supervised release
that requires Jose to give his probation officer access to his financial records. A
financial disclosure condition is appropriate when a defendant must pay restitution.
United States v. Garcia, 522 F.3d 855, 861 (9th Cir. 2008). As the government
pointed out, the district court ordered Jose to pay restitution to Indian Health
Services. Jose did not respond to that argument.
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Nevertheless, both parties agree that the district court’s judgment did not
reflect the sentence it orally pronounced. At the sentencing hearing, the district
court required Jose to “provide all financial documentation” that his assigned
probation officer “reasonably requested.” That limitation was not included in the
written judgment. The written judgment also added a clause that permitted the
probation office to share Jose’s financial information with the U.S. Attorney’s
Office. Because the court’s oral pronouncement is controlling, we “remand so that
the district court can make the written judgment consistent with the oral
pronouncement.” United States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015)
(quoting United States v. Hick, 997 F.2d 594, 597 (9th Cir. 1993)).
AFFIRMED in part, VACATED and REMANDED in part.
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