98 F.3d 402 (9th Cir. 1996), 94-10425, United States v. Sherwood

Docket Nº:94-10425, 94-10459.
Citation:98 F.3d 402
Party Name:D.A.R. 10,869, 96 Daily Journal D.A.R. 13,022 UNITED STATES of America, Plaintiff-Appellee, v. Jacob Harold SHERWOOD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ray Marion CUDDY, Defendant-Appellant.
Case Date:September 05, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 402

98 F.3d 402 (9th Cir. 1996)

D.A.R. 10,869,

96 Daily Journal D.A.R. 13,022

UNITED STATES of America, Plaintiff-Appellee,

v.

Jacob Harold SHERWOOD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ray Marion CUDDY, Defendant-Appellant.

Nos. 94-10425, 94-10459.

United States Court of Appeals, Ninth Circuit

September 5, 1996

Argued and Submitted Sept. 14, 1995.

As Amended Oct. 28, 1996.

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Daniel J. Albregts and Mitchell Posin, Las Vegas, Nevada, for defendants-appellants.

Joseph M. Angelo, Camille W. Damm and Thomas M. O'Connell, Assistant United States Attorneys, Las Vegas, Nevada, for plaintiff-appellee.

Appeals from the United States District Court for the District of Nevada, Lloyd D. George, Chief District Judge, Presiding. D.C. No. CR-93-00219-LDG.

Before: KOZINSKI and HAWKINS, Circuit Judges, and SILVER, [*] District Judge.

Opinion by Judge SILVER; Concurrence by Judge HAWKINS; Dissent by Judge KOZINSKI.

SILVER, District Judge:

BACKGROUND

On July 26, 1993, Kevin Wynn, the daughter of Steven Wynn, the Chief Executive Officer of Mirage Resorts, Inc., was confronted by two kidnappers in her Las Vegas townhouse. Ms. Wynn's kidnappers taped her eyes shut, put sunglasses on her, and made her remove her clothes, except her underwear. Ms. Wynn was then forced to pose for pictures, which her kidnappers stated would be publicly disseminated should she or her father go to the police. Ms. Wynn

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was then allowed to get dressed, was put in her car, and was driven to the airport, where she was left tied up. The kidnappers called Mr. Wynn and demanded $1.45 million for Ms. Wynn's return. The ransom was paid with money from the Mirage Hotel & Casino. Upon payment of the ransom, Ms. Wynn was recovered.

On December 8, 1993, a second superseding indictment was filed charging Jacob Harold Sherwood, Ray Marion Cuddy, and Anthony Watkins with (1) Conspiracy in violation of 18 U.S.C. § 1951; (2) Interference with Commerce by Threats or Violence in violation of 18 U.S.C. § 1951; (3) Use of a Firearm During a Crime of Violence in violation of 18 U.S.C. § 924(C) AND (4)1 two counts of Aiding and Abetting in violation of 18 U.S.C. § 2. Cuddy was also charged with Laundering Monetary Instruments in violation of 18 U.S.C. § 1956(a)(1)(B)(i) & (ii), and Sherwood and Watkins were charged with Conspiracy to Launder Monetary Instruments in violation of 18 U.S.C. § 1956(a)(1)(B)(i) & (ii). Watkins entered into a cooperation agreement with the government. Sherwood and Cuddy went to trial and were tried together. Watkins was the government's key witness. On May 12, 1994, Sherwood and Cuddy were convicted on all counts.

Sherwood was sentenced on August 9, 1994, to one hundred sixty-eight months on counts one, two and five, to be served concurrently, and sixty months on count three, to run consecutively with the other sentences, for a total of two hundred twenty-eight months. Cuddy was sentenced on September 2, 1994, to two hundred thirty-five months on counts one, two and four, to be served concurrently, and sixty months on count three, to run consecutively with the other sentences, for a total of two hundred ninety-five months.

Sherwood and Cuddy have timely appealed their convictions and sentences.

DISCUSSION

DEFENDANT SHERWOOD

Voir dire

We review the district court's conduct of voir dire in this case for abuse of discretion. See United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986) (applying abuse of discretion standard where defendant contended that pretrial publicity required voir dire by counsel). Despite its earlier ruling denying Sherwood's request for attorney voir dire, the district court specifically allowed the attorneys to voir dire individual jurors at side bar regarding pretrial publicity. In doing so, the district court judge announced that he would not allow an abuse of the attorney voir dire at sidebar. Sherwood challenges the propriety of this statement, which he contends "chilled" his counsel. We find this statement to be perfectly appropriate and note that the record reveals that Sherwood's counsel took full advantage of the opportunity to voir dire the individual jurors. In addition, Sherwood's contention that the district judge "rehabilitated" the jurors, which stifled their ability to be open and honest, is unsupported by the record.

Finally, Sherwood's contention that his conviction must be reversed because he was not present during the attorney-conducted voir dire at sidebar, and therefore could not assist his attorney in deciding how his preemptory challenges should be used, must fail. Although a defendant charged with a felony has a fundamental right to be present during voir dire, this right may be waived. See Campbell v. Wood, 18 F.3d 662, 672-73 (9th Cir.1994) (en banc) (defendant in a capital case waived his right to be present during voir dire by expressing his desire not to be present). Under the circumstances of this case, Sherwood waived his right to be present by failing to indicate to the district court that he wished to be present at side bar.

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Daubert

Sherwood contends that the district court erred in admitting the testimony of Kenneth Dunn, a fingerprint expert, without engaging in the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Sherwood concedes that because he failed to make a specific objection to the expert testimony regarding the prints on the parking ticket, our review is limited to plain error analysis. United States v. Whitmore, 24 F.3d 32, 34 (9th Cir.1994). Therefore, we will only reverse if the district court committed a clear or obvious error that affected substantial rights or was prejudicial. Id. at 34-35.

We have read the Supreme Court's decision in Daubert as requiring the district court to determine whether the expert's testimony reflects "scientific knowledge derived by the scientific method" and whether his or her work product amounts to "good science." Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995). The district court must then determine whether "the proposed expert testimony is 'relevant to the task at hand,' " meaning that it logically advances a material aspect of the proponent's case. Id.

The following factors may be relevant to the above inquiry: whether the theory or technique the expert employs is generally accepted in the scientific community; whether it has been subjected to peer review and publication; whether it can be and has been tested; and whether the known or potential rate of error is acceptable. Daubert, 509 U.S. at 591-93, 113 S.Ct. at 2796-97.

We consider these factors non-exhaustive and recognize that not every factor will be applicable in every case. Daubert, 43 F.3d at 1316-17. Sherwood admits that Dunn's technique is the generally-accepted technique for testing fingerprints and that fingerprint comparison has been subjected to peer review and publication. Furthermore, Sherwood admits that Dunn's testimony would aid the jury in determining the kidnappers' identity, thereby satisfying the second prong of the Daubert test. Consequently, the district court did not commit actual error in admitting Mr. Dunn's testimony.

Sherwood also contends that the district court erred in allowing the expert to specifically testify that he had no doubt that the prints on the parking stub were Sherwood's because the expert was testifying to the "ultimate issue" of whether it was Sherwood's print. This argument fails in light of Fed.R.Evid. 704, which permits expert testimony on the ultimate issue in a case.

Sufficiency of the Evidence

There is sufficient evidence to support a conviction if, "viewing the evidence in the light most favorable to the government and respecting the jury's ability to judge the credibility of the witnesses, resolve factual conflicts, and draw inferences, a rational jury could have found the elements of the crime beyond a reasonable doubt." United States v. Feldman, 853 F.2d 648, 654 (9th Cir.1988), cert. denied, 506 U.S. 1082, 113 S.Ct. 1054, 122 L.Ed.2d 361 (1993). Sherwood contends that the sole issue for the jury at trial was the identity of the taller individual who kidnapped Kevin Wynn. Sherwood admits that if there was sufficient evidence to support a finding that he was that individual, then there was sufficient evidence to sustain a conviction against him on all four counts.

Sherwood's sole argument is that the credibility of the witnesses implicating him as the kidnapper was suspect. Even if a few of the government's witnesses were somewhat unbelievable, "[w]e 'must respect the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict.' " United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989) (quoting United States v. Ramos, 558 F.2d 545, 546 (9th Cir.1977)). Assuming the jury found the witnesses to be credible, there was more than enough evidence to support the jury's finding that Sherwood was one of the two kidnappers.

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The strongest testimony came from Watkins, who testified that he had pled guilty to all counts of the indictment and that Sherwood and Cuddy participated in those crimes with him. Watkins provided extensive testimony detailing Sherwood's involvement in the crimes. Furthermore, there was evidence that...

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