NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 12 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50057
Plaintiff-Appellee, D.C. No.
2:13-cr-00484-CAS-6
v.
MANUEL LARRY JACKSON, AKA 49, MEMORANDUM*
AKA Cricket, AKA Arthur Rodriguez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted August 16, 2023
Pasadena, California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.
Manuel Larry Jackson appeals his jury conviction on one count of
possession with intent to distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a) and 841(b)(1)(A) based on a January 31, 2012, transaction. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The district court did not err in denying Jackson’s motion for acquittal on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the methamphetamine possession charge. Where, as here, “a defendant moved for
acquittal before the district court, this court reviews de novo whether sufficient
evidence exists to support a guilty verdict.” United States v. Suarez, 682 F.3d
1214, 1218 (9th Cir. 2012) (citation omitted). Where a record supports “conflicting
inferences,” we “must defer to [the jury’s] resolution” and uphold the jury’s verdict
so long as “any rational trier of fact [could find] the essential elements of the crime
beyond a reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.
2010) (en banc) (quotations omitted).
It was not unreasonable for the jury to infer that the substance Jackson
received on January 31, 2012, was methamphetamine. Jackson’s arguments focus
on the weight and meaning of a handful of recorded conversations about the
January 31 transaction. But he does not dispute that other evidence shows that:
(1) Packages originating from Jackson’s methamphetamine supplier, Freddie
Montes, and recovered before and after January 31, contained methamphetamine.
(2) Jackson negotiated for methamphetamine with Montes multiple times before
the January 31 transaction. (3) On at least one occasion after the January 31
transaction, Jackson told a government informant, Ralph Rocha, that he had
received a two-pound package and did not complain about the quality of the
product received. (4) Montes asked Rocha when he could expect payment from
Jackson after the January 31 transaction. Based on this evidence, a reasonable jury
2
could find that the substance Jackson received on January 31 was
methamphetamine.
2. The district court did not err in admitting certain statements made by
Montes under Federal Rule of Evidence 801(d)(2)(E). We “review for an abuse of
discretion the district court’s decision to admit coconspirators’ statements, and
review for clear error the district court’s underlying factual determinations that a
conspiracy existed and that the statements were made in furtherance of that
conspiracy.” United States v. Moran, 493 F.3d 1002, 1010 (9th Cir. 2007)
(quotation omitted). The party introducing the statement has the burden by a
preponderance of the evidence to “produce some independent evidence which,
viewed in light of the coconspirator statements, establishes the requisite connection
between the accused and the conspiracy.” United States v. Saelee, 51 F.4th 327,
342 (9th Cir. 2022) (quotation omitted). Further, there must be “proof of a
sufficient concert of action to show the individuals to have been engaged in a joint
venture.” United States v. Fries, 781 F.3d 1137, 1151 (9th Cir. 2015) (quotation
omitted). A district court may find there is a joint venture for purposes of Rule
801(d)(2)(E) even if that venture would not constitute a criminal conspiracy under
substantive criminal law. Id.
Jackson’s contention that the government did not meet its burden because it
failed to show sufficient “agreement” between Jackson and Montes, who were
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“mere buyer and seller . . . not co-conspirators,” erroneously conflates the standard
required to establish criminal liability for conspiracy with the standard for
introducing evidence under Rule 801(d)(2)(E). Applying the correct standard here,
the recorded conversations in the record amply support a finding that Jackson and
Montes had embarked in a joint venture to purchase and distribute controlled
substances and that the statements the government sought to admit were made by
Montes in furtherance of that joint venture.
3. The district court did not abuse its discretion in admitting the lay opinion
testimony of law enforcement officer Jose Urita. See United States v. Gadson, 763
F.3d 1189, 1209 (9th Cir. 2014). An officer may provide lay opinion testimony and
interpret “ambiguous conversations based upon [their] direct knowledge of [an]
investigation.” United States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007). An
officer may not, however, “testify based on speculation, rely on hearsay or
interpret unambiguous, clear statements.” United States v. Perez, 962 F.3d 420,
435 (9th Cir. 2020) (quotation omitted).
At trial, the government laid a foundation for Urita’s testimony as an officer
who, over the course of several months, investigated Jackson and Montes and
listened to all the recordings between them. Although Jackson argues that Urita’s
opinion testimony relied at least in part on hearsay, he does not identify any
specific hearsay statements that Urita purportedly relied on for any of his opinions
4
or interpretations, and nothing in Urita’s testimony suggests that he relied on the
truth of the content of prior out-of-court statements to form those opinions.
4. The district court did not violate Jackson’s Sixth Amendment rights under
the Confrontation Clause by allowing the government to present certain out-of-
court recorded statements made by Rocha. “We review de novo alleged violations
of the Confrontation Clause.” United States v. Fryberg, 854 F.3d 1126, 1130 (9th
Cir. 2017) (citation omitted). Where an “informant’s statements were not admitted
for their truth, [but to show context,] the admission of such context evidence does
not offend the Confrontation Clause.” United States v. Barragan, 871 F.3d 689,
705 (9th Cir. 2017) (quotation and citation omitted); see also United States v.
Valerio, 441 F.3d 837, 844 (9th Cir. 2006).
The district court correctly found that Rocha’s testimony was admissible for
the purpose of providing context under Barragan and Valerio. Both cases involved
similar situations where the government recorded the defendants’ conservations
using an informant, and then sought to admit the informant’s out-of-court
statements in the recordings to provide context for the defendants’ statements. See
Barragan, 871 F.3d at 704; Valerio, 441 F.3d at 839. Jackson attempts to
distinguish these cases by arguing that, here, the government admitted a greater
number of recordings and that those recordings were more central to the
government’s case. But the holdings of Barragan and Valerio were not
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conditioned on the number of recordings presented, or the centrality of the
recordings to the government’s case. Accordingly, consistent with Barragan and
Valerio, the district court correctly found that Rocha’s statements were admissible
to show context, and not the truth of the matter asserted.
5. The district court did not violate Jackson’s Sixth Amendment right to
present a defense by barring him from calling Rocha to testify. We review de novo
whether there has been a violation of the Sixth Amendment right to make a
defense. United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). We have
adopted the so-called Miller factors to evaluate “whether evidence erroneously
excluded was so important to the defense that the error assumes constitutional
magnitude.” Id. at 756. These factors include:
[1] the probative value of the evidence on the central issue; [2] its
reliability; [3] whether it is capable of evaluation by the trier of fact; [4]
whether it is the sole evidence on the issue or merely cumulative; and
[5] whether it constitutes a major part of the attempted defense.
Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003) (quoting Miller v. Stagner,
757 F.2d 988, 994 (9th Cir. 1985)).
Here, Jackson argues that it was constitutional error to exclude Rocha’s lay
opinion testimony as irrelevant, because Rocha could have undermined Urita’s lay
opinion testimony by providing alternative interpretations about the meaning of the
words “crumbs” and “nada” in a recorded conversation between Rocha and
Jackson. We need not determine whether the district court erred in excluding this
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testimony, because Jackson has not demonstrated that the purported error assumed
constitutional magnitude under the Miller factors.
First, at trial, Jackson’s counsel did not clearly tell the district court that
Rocha would provide probative lay witness testimony on a central issue to
Jackson’s defense and theory of the case. Although counsel stated that she intended
to call Rocha to provide a lay opinion on the content of certain recorded
conversations, she did not identify which conversations Rocha would interpret or
explain how Rocha’s testimony on the meaning of these conversations was a
“major part of the attempted defense,” Miller, 757 F.2d at 994. Unlike in the
briefing on appeal, counsel did not specifically explain to the district court that
Rocha was needed to provide lay testimony about the meaning of the words
“crumbs” or “nada.” Furthermore, before the district court, counsel equivocated
when explaining the specific purpose and scope of Rocha’s testimony, and
conceded that at least part of the testimony was irrelevant to the issues the jury
would decide.
Second, trial counsel did not explain how Rocha was qualified as a lay
witness to interpret certain words, other than to briefly state that Rocha participated
in certain recorded conversations.
Finally, counsel did not draw a clear distinction between Rocha’s subjective
understanding of certain words, which counsel conceded was “not relevant,” and
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his lay opinion testimony on the meaning of contested words, which counsel
argued was relevant. Accordingly, we conclude that Rocha’s lay opinion testimony
was not central to his defense or a major part of the attempted defense.
Consequently, the exclusion of that testimony did not rise to the level of
constitutional significance under the Miller factors.1
6. The district court did not err in denying Jackson’s motion to dismiss the
indictment based on outrageous government conduct during the criminal
investigation underlying his case. “We review the district court’s decision not to
dismiss the indictment for outrageous government misconduct de novo, viewing
the evidence in the light most favorable to the government.” United States v.
Pedrin, 797 F.3d 792, 795 (9th Cir. 2015) (citing United States v. Black, 733 F.3d
294, 301 (9th Cir. 2013)). In Black, we identified six relevant factors to assess
whether the government’s conduct is outrageous:
(1) known criminal characteristics of the defendants; (2) individualized
suspicion of the defendants; (3) the government’s role in creating the
crime of conviction; (4) the government’s encouragement of the
defendants to commit the offense conduct; (5) the nature of the
government’s participation in the offense conduct; and (6) the nature of
1
Even when error is “not of constitutional magnitude, we must reverse . . . unless it
is more probable than not that the error did not materially affect the verdict.”
United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005) (cleaned
up) (citation omitted). Here, however, Jackson argues only that the district court’s
error was of constitutional magnitude. He does not argue in the alternative that,
even if the purported error was not of constitutional magnitude, it was sufficiently
prejudicial such that reversal is warranted. Because the latter issue was forfeited,
we decline to address it.
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the crime being pursued and necessity for the actions taken in light of
the nature of the criminal enterprise at issue.
733 F.3d at 303. “[T]he first three are most relevant to the way in which the
government set[s] up [an investigation],” “the fourth and fifth look to the propriety
of the government’s ongoing role” in the operation, and the sixth “focuses on the
justification for the operation.” Pedrin, 797 F.3d at 796 (quotations omitted).
Jackson argues that in December 2011, certain government informants
threatened Montes and his brother, and that these threats coerced Montes into
carrying out the January 31, 2012, transaction involving Jackson. This
characterization of the December 2011 events is unsupported by the record, the
district court made no findings to this effect, and it appears Jackson did not even
characterize this incident as involving such threats below. We have no basis to
conclude that the December 2011 operation constituted a threat or coercion for the
purpose of the Black factors, or that the district court otherwise erred in its analysis
of these factors.2
7. Because Jackson has not identified multiple trial errors, his cumulative
error claim also fails.
AFFIRMED.
2
Similarly, Jackson’s assertions about a supposed cover up relating to the
December 2011 operation are unsupported by the record. The district court
considered evidence of this alleged cover up and found no such cover up existed.
Jackson provides no justification to disturb this finding on appeal.
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