FILED
NOT FOR PUBLICATION DEC 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50415
Plaintiff - Appellee, D.C. No. 2:09-cr-00380-VAP-1
v.
MEMORANDUM *
CHRISTOPHER INOUE, etc.,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted December 5, 2011
Pasadena, California
Before: PREGERSON and MURGUIA, Circuit Judges, and CONLON, District
Judge.**
Defendant Christopher Inoue (“Inoue”) appeals his conviction and 144-
month sentence for conspiracy to commit an assault with a dangerous weapon,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
with intent to do bodily harm, and to commit an assault resulting in serious bodily
injury, in violation of 18 U.S.C. § 371; assault with a dangerous weapon, with
intent to do bodily harm, in violation of 18 U.S.C. § 113(a)(3); and assault
resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
1. The district court did not abuse its discretion in admitting color
photographs of the victim’s injuries. The photographs were not unfairly
prejudicial and were highly probative of several material issues in dispute. See
Fed. R. Evid. 403; see also United States v. Brady, 579 F.2d 1121, 1129 (9th Cir.
1978) (victim photographs are “inadmissible only when the picture is of such
gruesome and horrifying nature that its probative value is outweighed by the
danger of inflaming the jury.”) (internal citation omitted).
2. The district court did not abuse its discretion in admitting out-of-court
statements into evidence as non-hearsay coconspirator statements. A statement is
not hearsay if it “was made by the party's coconspirator during and in furtherance
of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). A coconspirator’s statement “is
admissible against the defendant if the government shows by a preponderance of
the evidence that a conspiracy existed at the time the statement was made; the
defendant had knowledge of, and participated in, the conspiracy; and the statement
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was made in furtherance of the conspiracy.” United States v. Bowman, 215 F.3d
951, 960-61 (9th Cir. 2000).
The government showed by a preponderance of the evidence that there was a
conspiracy among several inmates that members of their group would not write
notes to prison officials or other inmates that mentioned other group members, and
that failure to adhere to the rules of the group would result in retribution. The
government further showed that Inoue had knowledge of, and participated in, the
conspiracy, and that the out-of-court statements were made in furtherance of the
conspiracy. Thus, the out-of-court statements were properly admitted as non-
hearsay statements by a coconspirator.
3. The district court did not abuse its discretion in dismissing a juror who
had two conversations with Inoue’s girlfriend during the trial and replacing the
juror with a qualified alternate before deliberations began. The district court may
replace a juror with an alternate if the original juror is “unable to perform” or is
“disqualified from performing [his or her] duties.” Fed. R. Crim. P. 24(c)(1).
Even if the district court did err, Inoue has not shown that he suffered any
prejudice. See United States v. Lustig, 555 F.2d 737, 746 (9th Cir. 1977) (“It is
difficult to see what prejudice could result from placing an alternate juror,
approved by the defendants, on the jury in place of a juror who cannot fairly
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perform his duties. The opposite would have been prejudicial.”).
4. Finally, Inoue contends that the district court erred in imposing a two-
level obstruction of justice enhancement under application notes 4(a) and (b) of the
Sentencing Guidelines § 3C1.1. He also argues that the sentence was substantively
unreasonable because of the disparity between his sentence and his coconspirator’s
sentence. A court may only set aside a sentence if it is “procedurally erroneous or
substantively unreasonable.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc).
Under application note 4(a) of the Sentencing Guidelines § 3C1.1, the
obstruction of justice enhancement is triggered where a defendant threatens,
intimidates or otherwise unlawfully influences a witness. Application note 4(b) is
triggered where a defendant willfully gives false material testimony. The record
supports the district court’s conclusion that Inoue threatened, intimidated, or
otherwise unlawfully influenced the victim into writing a note stating that the
victim threatened Inoue the night before the assault. Because we find that the
district court did not err in imposing the obstruction of justice enhancement based
on threats and intimidation, we do not need to reach whether the district court erred
in imposing the obstruction of justice enhancement for willfully giving false
material testimony.
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The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 41 (2007). After calculating the
Guidelines range, the district court considered the 18 U.S.C. § 3553(a) factors and
found that the assault was serious–it was a two-on-one fight with long-lasting and
painful consequences, and it was planned in advance. The district court further
found that the sentence was necessary to protect the safety and lives of others.
Then, the district court correctly found that Inoue did not merit a downward
variance to correct the disparity between his sentence and his coconspirator’s
sentence. Inoue and his coconspirator were not similarly situated. Inoue had a
higher criminal history category, did not accept responsibility for the assault, and
was just as culpable for the assault as his coconspirator. Furthermore, Inoue’s
coconspirator assisted the government in an important murder investigation. Thus,
the district court properly considered the 18 U.S.C. § 3553(a) sentencing factors
and crafted a sentence that was procedurally sound and substantively reasonable.
AFFIRMED.
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