United States v. Major

• Decision Date: 27 March 2012
• Docket Number: Nos. 10–10147,10–10148.,s. 10–10147
• Citation: United States v. Major, 12 Cal. Daily Op. Serv. 3443, 676 F.3d 803, 2012 Daily Journal D.A.R. 3952 (9th Cir. 2012)
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Marcus MAJOR, Defendant–Appellant.United States of America, Plaintiff–Appellee, v. Jordan Huff, Defendant–Appellant.

12 Cal. Daily Op. Serv. 3443

2012 Daily Journal D.A.R. 3952

676 F.3d 803

UNITED STATES of America, Plaintiff–Appellee,

v.Marcus MAJOR, Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Jordan Huff, Defendant–Appellant.

Nos. 10–10147

10–10148.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 2012.Filed March 27, 2012.

Kimberly A. Sanchez, Assistant United States Attorney, Fresno, CA, for the plaintiff-appellee.

Jerald Brainin, Esq., Los Angeles, CA, for defendant-appellant Marcus Major.

Arthur H. Weed, Esq., Santa Barbara, CA, for defendant-appellant Jordan Huff.Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. Nos. 1:07–cr–00156–LJO–1, 1:07–cr–00156–LJO–2.

Before: J. CLIFFORD WALLACE, JOHN T. NOONAN, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge WALLACE; Partial Concurrence and Partial Dissent by Judge NOONAN.

OPINION

WALLACE, Senior Circuit Judge:

In these consolidated appeals, Marcus Major and Jordan Huff appeal from their convictions under Title 18 U.S.C. §§ 1951 and 924. They also appeal from their sentences pursuant to section 924(c). We have jurisdiction based on 28 U.S.C. § 1291. We affirm their convictions, but vacate their sentences and remand for resentencing.

I.

Between December 24, 2005, and July 24, 2006, retail establishments in Fresno and Madera, California, were plagued by a string of armed robberies. Major and Huff were arrested on July 24, 2006, while attempting to flee from the scene of the robbery of Bulldog Liquor. They were indicted on June 14, 2007, for conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951; conspiracy to use, carry, brandish, and discharge firearms during and in relation to a crime of violence in violation of 18 U.S.C. § 924( o ); six counts of discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); twenty-four counts of brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and thirty counts of interference with commerce by robbery in violation of 18 U.S.C. § 1951.

Major and Huff were tried together with other codefendants, and on December 22, 2009, the jury returned guilty verdicts on all counts against both Major and Huff. The district court sentenced them on March 25, 2010. Huff's sentence included prison terms of: 121 months for each of the conspiracy and robbery counts (Counts 1, 2, and 33 through 62), to be served concurrently; 120 months for the first count of discharging a firearm (Count 3), to be served consecutive to the conspiracy and robbery sentences; and 300 months for each of the remaining 29 discharging and brandishing offenses (Counts 4 through 32), with each term to run consecutively. Major's sentence was identical except that he was sentenced to concurrent terms of 135 months for Counts 1, 2, and 33 through 62. Thus, Huff was sentenced to 8,941 months (745 years, 1 month) and Major to 8,955 months (746 years, 3 months) imprisonment.

II.

Major and Huff contend that they were denied a fair trial because the district court allowed the government to present evidence of other crimes in which they were implicated and evidence of their affiliation with the “High Roller Boyz,” a criminal street gang. They also contend that the district court denied them their Sixth Amendment right to prepare for trial by ordering that they could have no contact with anyone other than their attorneys during the trial. In challenging their sentences, Major and Huff argue that section 924(c) violates the doctrine of separation of powers and resulted in cruel and unusual punishment in violation of the Eighth Amendment. Finally, they argue that the district court erred in using a “discharging” offense, rather than a “brandishing” offense as the first conviction under section 924(c), resulting in sentences three years longer than if the district court had used a “brandishing” offense as the first conviction.

We review the district court's evidentiary rulings for abuse of discretion. United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir.2000). The constitutionality of the district court's order restricting Major and Huff's communication, the constitutionality of section 924(c), and the district court's interpretation of section 924(c), on the other hand, are questions of law, which we review de novo. Ileto v. Glock, Inc., 565 F.3d 1126, 1131 (9th Cir.2009). We reject all but the last of their arguments. Thus, we affirm their convictions but vacate their sentences and remand for resentencing.

III.

Major argues that the district court abused its discretion by permitting the government to present evidence of an uncharged home invasion robbery, three uncharged drive-by shootings, and his affiliation with the High Roller Boyz. Major and Huff had moved to exclude the evidence of the shootings and home invasion under Rules 403 and 404(b) of the Federal Rules of Evidence. They moved to exclude the evidence of gang affiliation under Rules 402 and 403. The government opposed the motions, arguing that the shootings and home invasion showed an association between Major and Huff and established their identities, and that their gang affiliation established identity, association, and motive.

The district court denied both motions. At trial, the government presented evidence of the shootings and the home invasion, and discussed this evidence at some length in the final arguments. The government also elicited testimony showing that Major and Huff were members of a criminal street gang known as the High Roller Boyz. We now discuss whether the district court abused its discretion in denying their motions to exclude this evidence.

A.

Ballistics evidence indicated that the firearms used in the shootings and home invasion were also used in some of the robberies, including the final robbery when Major and Huff were apprehended. Therefore, according to the government's theory, evidence that Major and Huff committed the prior crimes made it more likely that they were the ones who committed the charged robberies.

To support its theory, the government presented evidence that Major, Huff, and their co-defendant, Porcha Neal, committed the drive-by shootings. The evidence suggested that Neal orchestrated the shootings as part of a child custody dispute. Evidence showed that Major's and Huff's cell phones were in the area of the shooting at the time.

With respect to the home invasion, Victor Murray testified that he was involved in that crime with Major and Huff. He described the firearms and how they were used. His testimony also suggested that Major and Huff moved on to robbing retail stores because the home invasion robbery was not very lucrative.

Major argues that the evidence of the drive-by shootings and home invasion was inadmissible under Rule 404(b). That rule forbids the use of evidence of other crimes, wrongs, or acts “to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). However, such evidence may be admissible for other purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. at 404(b)(2). Thus, Rule 404(b) “is a rule of inclusion—not exclusion.” United States v. Curtin, 489 F.3d 935, 944 (9th Cir.2007) (en banc). “Once it has been established that the evidence offered serves one of [the purposes authorized by Rule 404(b)(2) ], ... the only conditions justifying the exclusion of the evidence are those described in Rule 403....” Id. (internal quotation marks omitted).

The government offered the evidence of the shootings and home invasion to prove identity, which was a material element of the charged crimes. Identity was at issue because neither Major nor Huff admitted that they were the perpetrators of the robberies. That the firearms used in the drive-by shootings and home invasion were also used in some of the robberies is relevant to prove that the same individuals who perpetrated the shootings and home invasion also perpetrated the robberies in which those firearms were used. This fact is relevant to prove identity because a jury could reasonably assume that possession of the firearms did not change during the period between each crime.

To be relevant in the Rule 404(b) context, evidence of other acts must be sufficient for a jury to “reasonably conclude that the act occurred and that the defendant was the actor.” Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Here, the evidence was sufficient to establish that the shootings and home invasion took place and that Major and Huff committed those crimes. Because the evidence of their other crimes was offered to prove identity and actually served that purpose, the district court did not abuse its discretion in holding that the evidence was admissible under Rule 404(b).

Major also argues that the district court erred in holding, pursuant to Rule 403, that the probative value of the evidence establishing these crimes was not substantially outweighed by a danger of unfair prejudice or of needlessly presenting cumulative evidence. In support of his argument, Major cites United States v. Curtin, where we held that the district court shirked its duty under Rule 403 when it permitted the government to present highly prejudicial evidence to the jury without first thoroughly reviewing the challenged evidence. 489 F.3d at 956–58. We held that a court “does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh.... One cannot evaluate in a Rule 403 context what one has not seen or read.” Id. at 958.

Major argues that the district court “made no attempt to...