FILED
NOT FOR PUBLICATION
DEC 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50181
Plaintiff-Appellee, D.C. No. CR 13-00044-VAP-1
v.
CURTIS HAYS, II, MEMORANDUM*
Defendants-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted December 8, 2016
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and KORMAN,** District Judge.
Curtis Hays (“Hays”) appeals his jury convictions of one count of
conspiracy in violation of 18 U.S.C. § 371, six counts of theft of firearms in
interstate and foreign commerce in violation of 18 U.S.C. § 924(l), six counts of
receipt and possession of stolen firearms in violation of 18 U.S.C. § 922(j) and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
§ 924(a)(2), and two counts of theft, receipt, and possession of interstate and
foreign shipments in violation of 18 U.S.C. § 659. On appeal, Hays argues that
there was insufficient evidence to support the verdicts in this case. He also
contends that the district court erred in admitting evidence of two uncharged thefts
and out-of-court co-conspirator statements. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
I. Sufficiency of Evidence
We review de novo a claim challenging the sufficiency of the evidence
supporting a verdict. See United States v. Webster, 623 F.3d 901, 907 (9th Cir.
2010). In assessing whether the verdicts were supported by sufficient evidence,
“the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). Circumstantial evidence may be
sufficient to sustain a conviction, provided that the inferences drawn from it are
supported by a chain of logic. See United States v. Toro-Barboza, 673 F.3d 1136,
1144 (9th Cir. 2012). Here, overwhelming circumstantial evidence provided a
forceful chain of logic that would permit a reasonable trier of fact to find the
elements of the crime beyond a reasonable doubt on all counts. Hays was one of
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only three United Parcel Service drivers who worked at the facility on every day
the packages were stolen. In each of the thefts, Hays was either the primary driver
for the destination of the stolen goods, or an overflow driver. Evidence from the
stolen packages was found in alleged co-conspirator’s White’s home, car, and
self-storage facility. Telephone records demonstrated that Hays and White spoke
by telephone on each date a theft occurred, and cellular tower data showed that
they came within close proximity of one another on each of these dates. Text
messages between two alleged co-conspirators used Hays’s first name when
referring to the source of the stolen goods, and testimony at trial further identified
the source as a United Parcel Service employee. Viewing this evidence in the light
most favorable to the government, we find that a rational jury could have found
Hays guilty, beyond a reasonable doubt, on all counts.
Hays’s argument that the buyer-seller rule precludes a conviction for
conspiracy is unavailing. Under the buyer-seller rule, mere sales to other
individuals do not establish a conspiracy to distribute or possess with intent to
distribute; rather, “conspiracy requires proof of an agreement to commit a crime
other than the crime that consists of the sale itself.” United States v. Lapier, 796
F.3d 1090, 1095 (9th Cir. 2015) (quoting United States v. Moe, 781 F.3d 1120,
1123 (9th Cir. 2015)). While we have applied the buyer-seller rule in cases where
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the defendant is charged with conspiracy to distribute a controlled substance, the
rule has no application here because the single conspiracy charged in the
indictment was not a conspiracy to distribute the firearms and other goods. See
United States v. Rodman, 776 F.3d 638, 644 (9th Cir. 2015). Moreover, we have
held that “[d]istinguishing between a conspiracy and a buyer-seller relationship
requires a fact-intensive and context-dependent inquiry[,]” and Hays failed to raise
the buyer-seller rule argument before the district court. Moe, 781 F.3d at 1125.
Here, as in Moe, the jury instructions on the conspiracy that was charged properly
explained the elements of conspiracy. See id. at 1128-29 (finding no error where
the district court declined to give a buyer-seller instruction to the jury, where the
instructions properly explained to the jury that a conspiracy involves a criminal
partnership and a plan to commit overt acts).
II. Evidentiary Rulings
Evidentiary rulings are reviewed for an abuse of discretion. United States v.
McFall, 558 F.3d 951, 960 (9th Cir. 2009). Hays first argues that Federal Rule of
Evidence 404(b) prohibited the admission of evidence of two uncharged thefts.
However, this evidence was not subject to Rule 404(b), as both thefts occurred
within the temporal scope of the conspiracy and comprised the conspiracy. See
United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir. 2004).
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Finally, Hays challenges the admission of out-of-court statements by his
alleged co-conspirators. The district court was well within its discretion in
determining that the government had made a sufficient proffer as to the existence
of a conspiracy. See Bourjaily v. United States, 483 U.S. 171, 176 (1987). The
statements were made during the course and in furtherance of the conspiracy, and
accordingly, fell within the hearsay exception of Federal Rule of Evidence
801(d)(2)(E). Thus, the court did not abuse its discretion in admitting these
statements.
AFFIRMED.
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