FILED
NOT FOR PUBLICATION APR 12 2012
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. 09-50316
Plaintiff - Appellee, D.C. No. 2:07-cr-01215-SJO-12
v.
MEMORANDUM *
BERNARD BEARD,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-50512
Plaintiff - Appellee, D.C. No. 2:07-cr-01215-SJO-9
v.
DEMOND LEE, AKA D-Boy,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-50187
Plaintiff - Appellee, D.C. No. 2:07-cr-01268-ODW-3
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ROBERT BELL,
Defendant,
v.
BERNARD BEARD,
Movant - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Otis D. Wright, District Judge, Presiding
Argued and Submitted March 6, 2012
Pasadena, California
Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.
Bernard Beard (“Beard”) and Demond Lee (“Lee”) appeal their jury
convictions and sentences for conspiracy to distribute controlled substances from
Los Angeles to St. Louis. Beard also appeals the district court’s order denying his
request to obtain sealed documents subject to a protective order in the criminal
case against Robert Bell (“Bell”). Lee also appeals the district court’s denials of
his motions to substitute counsel prior to trial. This court has jurisdiction under 28
U.S.C. § 1291, and we affirm.
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I. Viewed in the light most favorable to the government, there was
sufficient evidence for a rational jury to find that Beard and Lee were members of a
single conspiracy. To establish a single conspiracy, “the evidence must show that
each defendant knew, or had reason to know, that his benefits were probably
dependent upon the success of the entire operation.” United States v. Duran, 189
F.3d 1071, 1080 (9th Cir. 1999) (internal quotation marks and alteration omitted).
Here, ample evidence, including recorded telephone calls, witness testimony, and
physical evidence, demonstrates that both Lee and Beard benefitted from the
activities of the conspirators in both Los Angeles and St. Louis. The evidence
shows that Beard benefitted by receiving payments from the drug transactions,
while Lee benefitted by contributing to the purchase of the drugs and transporting
the drugs from Los Angeles to St. Louis.
II. The district court did not abuse its discretion by denying Beard’s motion
to sever his trial from his co-defendants. Beard fails to articulate any specific trial
right of which he was deprived due to the district court’s denial of his motion to
sever, and the jury instructions were more than adequate to ameliorate any
prejudicial effects of a joint trial. See United States v. Vasquez-Velasco, 15 F.3d
833, 845–46 (9th Cir. 1993) (establishing that a defendant must show “clear,
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manifest, or undue prejudice from the joint trial, that it violates one of his
substantive rights”) (internal quotation marks and alteration omitted).
III. Beard’s counsel was not objectively deficient in stipulating to a prior
felony conviction during Beard’s bifurcated trial on the felon-in-possession of a
firearm charge, as it is common trial strategy to prevent the jury from hearing
evidence of additional convictions. See Old Chief v. United States, 519 U.S. 172
(1997).
IV. Beard waived the argument that the government’s evidence was
insufficient to prove that he suffered a prior felony drug conviction for purposes of
the mandatory minimum sentence, as Beard did not challenge the “finality” of his
state conviction in the sentencing court and thus waived this argument. 21 U.S.C.
§ 851(b) (“[A]ny challenge to a prior conviction which is not made before sentence
is imposed may not thereafter be raised to attack the sentence.”).
V. Beard was not denied due process and the district court did not abuse its
discretion by refusing to release sealed documents pertaining to Bell’s case.
Although Beard has a First Amendment right to access Bell’s records, the district
court – after giving Beard the opportunity to object – found compelling reasons to
keep the record sealed. Oregonian Pub’g Co. v. United States Dist. Ct., 920 F.2d
1462, 1465–66 (9th Cir. 1990). Further, although Beard has a common law right
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to access Bell’s records, the district court found sufficient countervailing interests
that would be harmed by unsealing Bell’s records and Beard has not articulated
any compelling interest to outweigh that determination. Id. at 1467 (stating that
under the common law right of access to judicial records, the party seeking access
must make a threshold showing that “a compelling interest would be served by
disclosure”) (citation omitted); United States v. Kaczynski, 154 F.3d 930, 931 (9th
Cir. 1998) (stating that upon making the threshold showing, the district court
balances the movant’s “asserted need against any asserted reasons for
confidentiality”).
VI. The district court did not abuse its discretion by denying Lee’s request
to substitute counsel. The court conducted a detailed inquiry into each of his
motions and found that Lee’s contentions did not result in an irreconcilable conflict
or a complete breakdown in communication. See United States v. Mendez-
Sanchez, 563 F.3d 935, 943 (9th Cir. 2009). The record shows that Lee and his
counsel had some productive conversations, and that counsel stated that he was
able to vigorously represent Lee and held no animosity towards Lee.
For the foregoing reasons, the district court is AFFIRMED.
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