CORMAC J. CARNEY, District Judge.
On March 9, 2017, after a seven-day jury trial, Defendant Glenn Deshawn Browne was convicted of one count of conspiracy to receive, possess, conceal, store, sell, or dispose of stolen firearms in violation of 18 U.S.C. § 371, two counts of receipt, possession, concealment, storage, sale, or disposal of stolen firearms in violation of 18 U.S.C. § 922(j), and one count of unlawful possession of a firearm and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). Defendant now moves for a new trial pursuant to Federal Rule of Criminal Procedure 33 on the grounds of purported misconduct by the government's case agent, ineffective confrontation and cross-examination, the Court's failure to instruct the jury on "multiple conspiracies or the buyer-seller rule," and ineffective assistance of counsel. (Dkt. 115 [Motion, hereinafter "Mot."].)
Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). A motion for a new trial is "directed to the discretion of the district judge," and should be granted "only in exceptional cases," United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981), such as where "despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred," United States v. Alston, 974 F.2d 1206, 1211-12 (9th Cir. 1992). For the foregoing reasons, Defendant's motion is DENIED.
Defendant's motion focuses on the purported misconduct of the government's case agent, Ryan Stearman, during cross-examination at trial. (See generally Mot.) "To prevail on a motion for new trial based on prosecutorial misconduct, a defendant must show that the conduct more probably than not materially affected the fairness of the trial." United States v. Atcheson, 94 F.3d 1237, 1244 (9th Cir. 1996), as amended on denial of reh'g (Oct. 3, 1996). None of Agent Stearman's actions constituted misconduct nor did they materially affect the fairness of the trial.
First, Defendant argues that Agent Stearman had a "constant and consistent impulse to answer the questions Stearman wanted to answer instead of the questions his examiner wanted answered." (Mot. at 11.) Defendant claims that during the suppression hearing held prior to trial on February 10, 2017, Defense counsel was "attempting to establish standing by crediting Stearman with the foundation for his expert opinion regarding standing," when Agent Stearman "volunteer[ed], non-responsively, that [Los Angeles Police Department, or `LAPD'] officers would be better able to testify to the contents of their reports when any marginally competent law enforcement officer would have known that counsel was 100% uninterested in the contents of any LAPD report." (Id.) Agent Stearman made a comment to this effect three times during the hearing. (Dkt. 71 at 7:15-18, 10:1-3, 10:18-21.) In all three instances, Defense counsel asked Agent Stearman about his personal understanding of the circumstances surrounding Defendant's arrest, which the agent fully answered before stating LAPD might provide better information. (See, e.g., id. at 7:15-18 ("It was my understanding that Mr. Browne was in or around the vehicle. I can review the report again to tell you what Officer Delgadillo reported in his report, but that may be better suited for Officer Delgadillo to report on.").) These remarks do not evidence a "constant and continuous habit of delivering non-responsive and evasive answers to properly framed questions," (Mot. at 12), but rather demonstrated a desire to provide accurate information. Additionally, Agent Stearman provided these responses at the suppression hearing, not the trial. It is therefore not plausible that these off-hand statements at the suppression hearing could in any way materially affect the fairness of the trial.
In his reply brief, Defendant is also critical of many of the responses Agent Stearman gave to Defense counsel's questions during cross-examination, but most of Agent Stearman's responses evidence either a desire on his part to be precise or understandable confusion about the questions that he was being asked. (See, e.g., Reply at 10 (citing Dkt. 118 at 69:6-15 ("Q: Okay. So during the entire conversation you had with her in connection with the gun burglary from ExaTactical, she was telling you that an innocent person by the name of Lexi was involved in that particular crime? A: She never said an innocent person by the name of Lexi. She named a person named Lexi. And then through a review of her cellular telephone, I found text messages indicating that a person Lexi appeared to have been planned to be involved in the burglary, and it never came to fruition that that person showed up.")); id. at 11 (citing Dkt. 118 at 34:11-22 ("Q: Did the defendant provide any explanation for why he had two forms of identification on his person? A: He stated something to me to the effect of he had it—he had Mr. Smith's identification so that he could use it with law enforcement if he—to avoid any outstanding warrants. Q: Did the defendant say anything about the woman in the car? A: Yes. Q: What did he say? A: Stated that her name was Zakiyah, and I believe he stated the car was registered to her; however, the car was not registered to her.")); id. at 16 (citing Dkt. 118 at 93:14-17 ("Q: Are you familiar with the definition of a criminal street gang? A: As it pertains to the California Penal Code, I could not cite it to you verbatim, no.")); id. at 20 (citing Dkt. 130 at 33:9-21 ("Q: Is that Jonhesha White? A: Does not appear to be. Q: How about Kiyah Williams (sic)? We talked about her. A: Zakiyah Williams? Q: Well, she goes by `Zakiyah.' That's her full name, but a lot of times it appears that she's identifying herself as `Kiyah,' which I assume is short for `Zakiyah'; is that correct? A: I don't know if that's correct. Q: Okay. How did she identify herself to you? A: To tell you the truth, I'm not even sure who I've talked to at this point, whether it's Jonhesha White, or Zakiyah Williams.")).)
Defendant's accusations that Agent Stearman purposefully forced Defense counsel "to object multiple times in front of the jury" regarding his non-responsiveness and that the prosecution "put out a toxic message via the answer and forced the [D]efense counsel to look like an obstructionist with repeated objections" are baseless and not true. (See Dkt. 132 ["Reply"] at 7-8, 10.) While the Court did instruct Agent Stearman to provide simple `yes' or `no' answers, that was to streamline proceedings and avoid repetitive questioning by Defense counsel, not because Agent Stearman was engaging in misconduct or purposefully thwarting cross-examination. (Dkt. 118 at 98:9-15 ("Agent, I want to make sure that we get through this testimony in the most efficient way possible, so I'm going to ask you, when Mr. Harley asks you a question, please try to be as responsive as you can to his question. And if Mr. Tenley wants to follow up and ask for an explanation, he'll do it on redirect. But we'll be here a long time if you go beyond a simple `yes' or `no' to his question.").) The exchange between Defense counsel and Agent Stearman occasionally became heated, but usually because the agent was expressing frustration regarding argumentative and repetitive questioning,
Defendant also argues that Agent Stearman "non-responsively accused [Defense] counsel of demeaning him while exercising [D]efendant's constitutional right to confront and cross-examine the witnesses against him." (Mot. at 12.) Defendant is referring to the following exchange between Defense counsel and Agent Stearman, which occurred after several hours of cross-examination:
(Dkt. 130 at 92:9-93:6.) Agent Stearman's statement does not amount to misconduct. Defense counsel's question as to why Agent Stearman was looking at the judge was argumentative and demeaning. The agent gave a truthful and responsive answer to the question. Although Agent Stearman's response did not prejudice Defendant's ability to exercise his right to cross-examination, out of an abundance of caution, the Court also gave a limiting instruction regarding this exchange. (Id. at 105:2-106:8 ("You did hear Agent Stearman say he found Mr. Harley's questions demeaning. I'm going to strike the Agent's statement about Mr. Harley's questions, as it is irrelevant to your decision. Please do not discuss or consider this statement during your deliberations. And one of the instructions I believe I gave you at the beginning of the case—and I'll give it to you again at the end—is: Questions, statements, objections and arguments by the lawyers are not evidence. The lawyers are not witnesses. Although you must consider a lawyer's questions to understand the answers of a witness, the lawyer's questions are not evidence.").) The Supreme Court "presumes that jurors, conscious of the gravity of their task, attend closely to the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them." Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). Agent Stearman's statement "I found the line of questioning demeaning" did not materially affect the fairness of the trial.
Defendant also argues that "Stearman's unwarranted interjection of [D]efendant's membership in the Rolling 30s criminal street gang is equally troubling given the long established prejudicial nature of gangs recently articulated by the Ninth Circuit." (Mot. at 12.) Again, Defendant is referencing statements by Agent Stearman that were directly solicited by Defense counsel. After extensive pre-trial discussions, the Court had ordered the government not to elicit any gang-related testimony in its direct examinations of witnesses, which the government honored. However, the Court also warned Defense counsel that if he opened to door to gang affiliation during cross-examination, the government would be permitted to admit evidence to that effect. During cross-examination of Agent Stearman, Defense counsel published a photograph of Defendant and the Cooperating Witness ("CW") making hand gestures. The following exchange then took place between Defense counsel and Agent Stearman regarding the photograph:
(Dkt. 118 at 90:20-92:3.) Defense counsel chose to publish a picture of Defendant flashing a hand gesture that could be interpreted as a gang sign, (see Dkt. 124-1 [hereinafter "Tenley Decl."] at Ex. 5 (Trial Ex. 82)), and Defense counsel opened the door to such evidence by asking Agent Stearman "what type of sign" it was. The agent was reluctant to explain what he thought the sign meant and asked for clarification because he did not agree with Defense counsel's characterization of the sign. He did not say that he believed the sign was a gang symbol until Defense counsel pressed him further. Accordingly, Agent Stearman's statements were responsive, and they did not amount to misconduct because Defense counsel opened the door to gang evidence. And again, the Court again gave a limiting instruction regarding Agent Stearman's response out of an abundance of caution. (Dkt. 105 at 20 ("The issue of gang membership or association is not relevant to the defendant's guilt or innocence of the crimes for which he is on trial. Therefore, you must not discuss or consider this issue during your deliberations.").
Nor is Defendant correct that Agent Stearman's opinion regarding Defendant's gang affiliation had "no foundational support," (Mot. at 16), since Agent Stearman clearly explained the basis for his belief: CW (who was also in the photograph) told him of the meaning of the hand gesture, LAPD informed him that Defendant was a member of the Rollin' 30s Harlem Crips gang, and Agent Stearman observed Defendant's gang-related tattoos.
Defendant argues that Agent Stearman's "deficient character for truth telling" was also evident because at trial he avoided answering questions about "whether or not he told [CW] that no promises were made in response to [CW's] specific request that her cooperation would `benefit her in some type of way.'" (Mot. at 13.) Defendant is referring to Agent Stearman's testimony regarding his summary report of a post-arrest interview with CW on November 8, 2015, which stated "At 0338 hours, [CW] inquired if any information she provided would `benefit her in some type of way.' SA Stearman advised that any assistance or material information [CW] provided would be considered but no promises were made." (Tenley Decl. Ex. 7.) At trial, Defense counsel spent considerable time questioning Agent Stearman about this report, and repeatedly asked him whether he uttered the specific phrase "no promises" to CW. (Dkt. 130 at 67:7-81:22.) Agent Stearman consistently explained that the report means that he did not in fact make any promises to CW, not that he specifically uttered verbatim the words "no promises."
Defendant claims that he had "rock solid evidence" to attack Agent Stearman's credibility, in that he wanted to present evidence "through his investigator that Stearman never made any such statement regarding no promises," but "apparently, the Court precluded such credibility attack pursuant to [Federal Rule of Evidence] 608(b)."
In sum, while Defense counsel and Agent Stearman had some contentious exchanges during cross-examination, and the agent occasionally offered more than he was asked out of a desire to be precise or as a result of confusion or frustration with argumentative and repetitive questioning by Defense Counsel, Agent Stearman's statements did not constitute, and were nowhere close to constituting, prosecutorial misconduct.
Defendant argues that Agent Stearman's actions "denigrated" Defense counsel and Defendant's constitutional right to cross-examination, "rendering his confrontation and cross-examination meaningless." (Mot. at 7.) "The right to confront witness includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias or self-interest in testifying." United States v. Payne, 944 F.2d 1458, 1469 (9th Cir. 1991). "The right is not unlimited, however, and a trial judge retains wide discretion in limiting the scope of cross-examination." Id. The "Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original).
To the extent Defendant is arguing that Agent Stearman's supposed misconduct prevented meaningful cross-examination, this argument is unavailing since the Court has already determined that there was no such misconduct. Additionally, Defense counsel had ample to time to, and did, effectively cross-examine every witness. For example, Defense counsel cross-examined CW for more than three hours, wherein he spent considerable time admitting evidence and developing the record concerning her past criminal convictions and her purported "crime spree" between May and November 2015, impeaching her about her motivation to testify against Defendant, and depicting her as an unreliable witness. Defense counsel cross-examined Agent Stearman for almost four hours regarding his investigations, handling of evidence, interactions with CW, credibility, the strength of his recollection, and potential biases. For each witness, the Court did not end Defense counsel's cross-examination until it became excessively cumulative and argumentative, at which time the Court was well within its authority to restrain the questioning pursuant to Federal Rule of Evidence 611(a). There is no basis for Defendant to assert that his Confrontation Clause rights were violated.
Defendant also argues that the Court erred in failing to instruct on "multiple conspiracies and a buyer-seller relationship." (Mot. at 18.) "The formulation of jury instructions is within the discretion of the trial court." Gracie v. Gracie, 217 F.3d 1060, 1067 (9th Cir. 2000). "In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation. A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000) (internal citation omitted).
As an initial matter, Defense counsel did not request either instruction at trial. United States v. Lara-Hernandez, 588 F.2d 272, 274 (9th Cir. 1978) ("The presentation of additional evidentiary theories for the first time after the jury has returned its verdict does not comport with the salutary purpose of the timeliness requirement to allow the trial judge to make an informed ruling based on the issues as framed by the parties before the evidence is either introduced or excluded from the pertinent stage of the trial.").
Additionally, the requested instruction regarding multiple conspiracies had no application in this case. "Evidence sufficient to support a multiple conspiracies instruction is present where a jury could reasonably conclude that some of the defendants were only involved in separate conspiracies unrelated to the overall conspiracy charged in the indictment." United States v. Mincoff, 574 F.3d 1186, 1196 (9th Cir. 2009). Here, the indictment only alleged one conspiracy to sell stolen firearms between Defendant and CW, and the evidence presented at trial revealed only that one conspiracy. To the extent Defendant is referring to his lack of involvement in stealing the firearms, this is irrelevant. The government's case never connected Defendant to the initial stealing of the firearms, and Defendant stood trial alone, so there was no risk of "spillover" of guilt regarding those individuals who stole the firearms at issue. United States v. Liu, 631 F.3d 993, 1000 (9th Cir. 2011) ("A multiple conspiracy instruction is not required when a defendant `stands trial alone' because `there is no problem of spillover.'") (quoting United States v. Anguiano, 873 F.2d 1314, 1317-18 (9th Cir. 1989).
Nor was Defendant entitled to a "buyer-seller" instruction that "mere sales to other individuals do not establish a conspiracy to distribute or possess with the intent to distribute" and that "conspiracy requires proof of an agreement to commit a crime other than the crime that consists of the sale itself." United States v. Hays, ___ Fed. Appx. ___, No. 15-50181, 2016 WL 7367843, at *1 (9th Cir. Dec. 20, 2016). Here, the jury was properly instructed on the elements of a conspiracy. (Dkt. 105 at 21-22 ("A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed. . . . It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit. . . . One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of the details of the conspiracy.").) Substantial evidence supported the existence of a conspiracy between Defendant and CW—the government's case did not rest on the mere sale of firearms between CW and Kory White (also known as "White Dogg"). CW testified that on August 30, 2015, she met with Defendant, told him that she had stolen firearms that she wanted to sell, and asked Defendant if he knew anyone who would be interested. As a result, Defendant introduced her to White, a potential buyer. On August 31, 2015, Defendant drove CW to White's residence so that she could complete the sale of the stolen firearms. CW testified that Defendant concealed the firearms in a blanket and carried them from his car to White's apartment. Defendant also kept one of the stolen firearms, a Glock pistol, for himself—the same one he possessed when he was later arrested on August 20, 2016. DNA consistent with Defendant's DNA was found on the trigger and trigger guard of the Glock pistol. The following month, Defendant and CW exchanged several text messages regarding the payment of $250, which CW testified was the money Defendant owed her for the firearm Defendant kept for himself when they visited White's residence. Contrary to Defendant's belated criticism, no buyer-seller instruction was necessary.
A claim for ineffective assistance of counsel requires a defendant to demonstrate that "his counsel's performance was so deficient that it fell below an `objective standard of reasonableness'" and that "the deficient performance prejudiced the defense and made the trial results unreliable." Hensley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995). Defendant's notice of motion argues that he received ineffective assistance of counsel due to "failure of [D]efense counsel to competently establish (a) standing for purposes of asserting defendant's Fourth Amendment rights; [and] (b) failure to present exculpatory evidence from Cydney Clayborn, Kory White's girlfriend, and a percipient witness that no gun transactions between White, CW and Browne ever occurred in the area of White's apartment on or about August 31, 2015,"
Regarding standing, the Court already determined in connection with Defendant's earlier suppression motion that Defendant lacked standing to challenge the search of the car he was found in at the time of his arrest. (Dkt. 57 at 5-8.) After an evidentiary hearing, the Court found that Defendant did not have the requisite possessory interest in the car because he did not own it and did not establish that he had permission to use it. (See id.) There is no indication that any evidence elicited at trial could have altered the Court's decision. Moreover, this purported failure on the part of Defense counsel to establish standing did not prejudice Defendant, because the Court proceeded to the merits of Defendant's suppression motion as an alternative basis to deny the motion. (Id. at 8 n.5.)
Nor has Defendant demonstrated that Cydney Clayborn would have provided exculpatory evidence such that Defendant was prejudiced as a result of counsel's failure to call her. The reasons for this failure are unclear. During trial, Defense counsel had informed the government that Clayborn could be called as a witness, but apparently efforts to issue a trial subpoena had been unsuccessful. (Dkt. 124 at 3 n.2.) In any event, at trial, CW testified that Clayborn helped her, Defendant, and White with the stolen firearms transaction at White's residence by bringing extra blankets to conceal the firearms as they were carried from Defendant's car to White's residence. (Dkt. 117 at 13:6-14:13.) The government points out that records of telephone calls between White and Clayborn around that time corroborate CW's testimony regarding Clayborn, (Dkt. 118 at 54:21-55:25, 56:15-58:17; Trial Ex. 111), so Clayborn would have been "well within her rights to assert her Fifth Amendment privilege" at trial, just as White did, (Dkt. 124 at 6). If Clayborn did testify, she "would have been subject to powerful impeachment evidence," because "[w]hen White Dogg was arrested on December 8, 2015, Clayborn admitted to ATF agents that an associate of White Dogg had instructed her to enter his apartment before law enforcement began searching it and to destroy incriminating evidence inside, which was attempted to do, but was blocked by ATF agents." (Id. (citing Tenley Decl. Ex. 1).) Accordingly, Defendant has not established that Clayborn's testimony would have materially affected the verdict, particularly in light of the substantial evidence of Defendant's guilt, more fully described in the Court's order denying Defendant's accompanying motion for a judgment of acquittal.
Finally, Defendant argues that because of Agent "Stearman's painful cross-examination," Defense counsel decided not to examine Agent Stearman about his potential racial bias, because "one of the quickest ways to shut down any meaningful dialogue between citizens on race is to accuse the other side of being a racist" and "one of the quickest ways to shut down any meaningful dialogue between jurors on race is to accuse the defense of `introducing the race card.'" (Mot. at 14-15.) However, Defendant claims that this decision "was not sound nor was it tactical." (Id. at 14-15.) This argument is unavailing, since there is no indication of any racial bias that could have affected the jury's verdict. Defendant was stopped by the police as a result of a 911 call informing police officers that there was a man matching Defendant's description at Defendant's exact location with a gun, not because he was racially profiled, and there is no evidence of racial bias during any of the police's subsequent investigation or Agent Stearman's handling of the case.
For the foregoing reasons, Defendant's motion for a new trial is DENIED.
