NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10184
Plaintiff-Appellee, D.C. No.
1:18-cr-00034-DAD-BAM-1
v.
CYRUS D.A. BRASWELL, AKA Cyrus MEMORANDUM*
Dennis Braswell,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted May 10, 2021**
San Francisco, California
Before: WALLACE and COLLINS, Circuit Judges, and RAKOFF,*** District
Judge.
Cyrus Braswell has been a federal prisoner since 1997. While incarcerated,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Braswell mailed three threatening letters from the Federal Correction Institute,
Mendota (FCI Mendota) to Alaska in October 2015, December 2015, and August
2016. In the letters, he threatened to murder the federal judge who sentenced him in
1998. Braswell was charged in a superseding indictment in the Eastern District of
California with three counts of mailing threatening communications. Braswell
insisted on proceeding pro se, and he unsuccessfully litigated numerous procedural
and substantive challenges to the proceedings. Braswell went to trial but refused to
participate. The jury found Braswell guilty on all three counts. Braswell appeals
from his conviction. He asserts multiple Sixth Amendment errors, as well as argues
that the district court abused its discretion when it denied his request to obtain and
present witnesses and evidence to attack his underlying conviction.
We have jurisdiction pursuant to 28 U.S.C. §1291. We review Sixth
Amendment claims de novo. See United States v. Yazzie, 743 F.3d 1278, 1288 (9th
Cir. 2014) (citation omitted); see also United States v. Mendez-Sanchez, 563 F.3d
935, 944 (9th Cir. 2009) (“Whether a defendant knowingly and voluntarily waives
his Sixth Amendment right to counsel is a mixed question of law and fact reviewed
de novo”) (citation omitted). We also review venue issues de novo. United States
v. Lee, 472 F.3d 638, 641 (9th Cir. 2006) (citation omitted). Finally, we review the
district court’s evidentiary rulings for abuse of discretion and “uphold them unless
they are illogical, implausible, or without support in inferences that may be drawn
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from the facts in the record.” United States v. Perez, 962 F.3d 420, 434 (9th Cir.
2020) (citation omitted). We affirm the district court and uphold Braswell’s
conviction.
I.
Braswell was convicted in the District of Alaska in 1997 of various counts
related to his drug trafficking enterprise and money laundering activity. Braswell
was sentenced in 1998, and he was eventually detained in FCI Mendota in the
Eastern District of California. From October 2015 through August 2016, Braswell
mailed three threatening letters from FCI Mendota to the federal district court in
Alaska, in which he threatened to murder the federal judge who sentenced him in
1998.
Braswell was charged in a superseding indictment with three counts of
mailing threatening communications, in violation of 18 U.S.C. § 876(c). Braswell
decided to proceed pro se. Braswell challenged the indictment and the procedural
process of the criminal charges on various grounds, as well as the substantive
charges and his underlying conviction. He alleged that the grand jury venire was
racially biased due to the removal of Black jurors, improper venue, and undue delay
in presentment on the initial indictment. Braswell also insisted that he was denied
the assistance of counsel during pretrial preparation — even though he decided to
proceed without counsel, as well as demanded that he be able to attack his underlying
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criminal conviction to present his defenses of false imprisonment and false arrest.
The district court denied Braswell’s motions as irrelevant, factually unsupported,
conclusory, or repetitive.
Braswell proceeded to trial. Yet he refused to participate because he
mistakenly believed that he could not preserve appellate issues if he took part,
despite clarification from the district court. Braswell declined to participate in voir
dire, but he was present. Braswell did not cross-examine government witnesses,
despite prompting from the district court, and he refused to present a defense since
his preferred defenses were not permitted. The jury found Braswell guilty on all
three counts. Braswell was sentenced to 97 months incarceration on each count to
run concurrently to each other, and with all counts running consecutive to the
remaining time on his underlying sentence.
II.
First, Braswell contends that neither his grand jury nor his jury reflected a fair
cross-section of the community. Braswell bears the burden to prove that: (1) the
group allegedly excluded is a “distinctive group;” (2) the group’s representation in
venires is “not fair and reasonable” compared to its community representation; and
(3) “this underrepresentation is due to systematic exclusion.” United States v.
Cannady, 54 F.3d 544, 546–47 (9th Cir. 1995) (citation and quotation marks
omitted); see also Duren v. Mississippi, 439 U.S. 357, 364 (1979). However, he
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failed to present statistical data or evidence to support his conclusory claims. See
United States v. Esquivel, 88 F.3d 722, 726 (9th Cir. 1996) (holding that the second
prong “requires proof, typically statistical data”).
Second, Braswell maintains that the Eastern District of California was not the
proper venue for his prosecution. Braswell’s threatening letters were mailed to
Alaska through FCI Mendota, which is in the Eastern District of California.
Braswell admits that the letters were mailed from FCI Mendota. Regardless, he
implies that he should have been charged in Alaska, where the letters were received,
or in Indiana because he was detained there when he was indicted. This argument
is without support. See 18 U.S.C. § 3237(a) (For “[a]ny offense involving the use
of the mails,” venue is proper in “any district from, through, or into which such . . .
mail matter . . . moves.” (emphasis added)).
Third, Braswell declares that his confrontation rights were violated because
he did not cross-examine the witnesses against him in light of what he claims was
the district court’s ruling that if he participated in the trial, he would be waiving his
right to appeal the court’s earlier orders denying discovery concerning his false-
imprisonment defense. The Sixth Amendment guarantees the accused the right “to
be confronted with the witnesses against him,” including “the right of effective
cross-examination.” United States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007).
Nevertheless, a defendant must at least attempt to use these rights if they are to be
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preserved. The record belies Braswell’s contention that the court led him to believe
that he would forfeit his appellate rights if he participated in the trial. At trial, the
district court repeatedly and clearly explained that Braswell’s belief was wrong and
that he could both fully participate in the trial and preserve the issues he wished to
raise on appeal. Braswell’s confrontation rights, therefore, were not violated
because he chose not to cross-examine government witnesses as a strategic choice
to preserve his appellate rights and, arguably, to create appellate issues. The district
court explicitly held that Braswell “knowingly [and] intelligently” made a “strategic
decision” not to participate in his own trial.
Fourth, Braswell argues that his right to the assistance of counsel was violated.
This argument goes against the record. The Sixth Amendment gives defendants the
right to represent themselves. See Faretta v. California, 422 U.S. 806, 819 (1975).
Braswell explicitly waived his right to counsel, invoked his right to self-
representation, and rejected assistance from the Federal Defender’s Office
throughout pretrial and trial proceedings, including the assistance of standby
counsel. Braswell relies on Milton v. Morris, 767 F.2d 1443 (9th Cir. 1985), to assert
that he was entitled to proceed pro se while still receiving the degree of legal
assistance he requested. This is a misreading of Milton, which stands for the
proposition that incarcerated pro se defendants must have access to legal research
resources or other means of preparing his defense. Id. at 1446. Instead, Braswell
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demanded to proceed pro se while still having full access to the resources of the
Federal Defender’s Office. Milton does not require partial representation, and
Braswell has not provided any legal support for his argument.
Finally, Braswell asserts that he did not receive a fair trial because he could
not present evidence or argument to support his preferred defenses: false
imprisonment and false arrest. The district court was correct to hold that these
proposed defenses were irrelevant to the charged conduct. See United States v.
Perdomo-Espana, 522 F.3d 983, 987 (9th Cir. 2008) (“[W]here the evidence, even
if believed, does not establish all of the elements of a defense, . . . the trial judge
need not submit the defense to the jury”) (alteration in original) (citation omitted);
see also United States v. Sirhan, 504 F.2d 818, 819 (9th Cir. 1974) (discussing the
elements to prove the mailing of threatening communications); Fed. R. Evid. 401.
The district court explained to Braswell that he was entitled to a defense
supported by the facts, the evidence, and the law, but Braswell failed to provide
support for his argument and refused to present any other defense. We also agree
with the district court that it would have been confusing to the jury and caused undue
delay to permit Braswell essentially to relitigate his underlying conviction. See Fed.
R. Evid. 403. As a result, the district court did not abuse its discretion when it denied
discovery concerning, or subpoenas for, witnesses and documents related to his
collateral attack of his underlying conviction.
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In the end, we hold that Braswell’s Sixth Amendment rights were not violated
because he had a fair trial in the proper venue, he chose not to cross-examine the
government witnesses, and he decided to represent himself after being advised by
the district court of the consequences despite the provision of stand-by counsel. We
also hold that the district court did not abuse its discretion when it did not permit
Braswell to present the irrelevant defenses of false imprisonment and false arrest as
an attempt to relitigate his underlying criminal conviction.
AFFIRMED.
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