                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 06 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30243

              Plaintiff - Appellee,              D.C. No. 3:09-cr-05466-RJB-4

  v.
                                                 MEMORANDUM*
MARK RANDALL,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Western District of Washington
                 Robert J. Bryan, Senior District Judge, Presiding

                        Argued and Submitted May 5, 2011
                               Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Mark Randall appeals his jury conviction and sentence for conspiracy to

commit an offense against the United States (18 U.S.C. § 371), damage to property

of the United States (18 U.S.C. §§ 1361 and 2), and theft of government property

(18 U.S.C. §§ 641 and 2), in connection with the cutting of two maple trees from



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Olympic National Forest. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      First, there was sufficient evidence adduced at trial to support Randall’s

conviction of conspiracy to damage and steal federal property. See United States v.

Sullivan, 522 F.3d 967, 976 (9th Cir. 2008) (holding that a conspiracy conviction

requires “1) an agreement to engage in criminal activity, 2) one or more overt acts

taken to implement the agreement, and 3) the requisite intent to commit the

substantive crime” (internal quotation marks omitted)). While Randall correctly

contends that a buyer-seller relationship alone is insufficient to establish a

conspiracy to distribute a stolen item, there is sufficient evidence to support the

jury’s finding that Randall was more than a mere buyer of stolen timber. Randall

explicitly and implicitly agreed to lend his harvesting expertise, permits, and

connections to the criminal enterprise. In doing so, he completed a number of overt

acts, including marking a fallen tree for proper cutting and contacting Faith Farm

to allow the three co-defendants to use his permit. Randall also acted with the

intent to damage a tree when he entered the Olympic National Forest and marked it

for cutting, and with the intent to steal when he permitted his co-defendants to use

his permit to cut the wood. Since there was sufficient evidence to support the

conspiracy conviction, the district court did not plainly err in submitting the


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Pinkerton instruction to the jury. See Pinkerton v. United States, 328 U.S. 640

(1946).

      Second, the district court did not plainly err in submitting a deliberate

ignorance or willful blindness instruction as part of the instruction on acting

“knowingly.” See United States v. Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en

banc). While Randall contends that the Jewell instruction infected the jury’s

understanding of different state of mind requirements for other crimes, such as 18

U.S.C. § 1361’s willfulness requirement, the jury was also correctly instructed on

“willfully.” There was no plain error. See United States v. Heredia, 483 F.3d 913,

923–24 (9th Cir. 2007) (en banc). Moreover, this court has previously upheld the

use of a Jewell instruction in a factually similar case. See United States v.

Henderson, 721 F.2d 276, 278–79 (9th Cir. 1983) (upholding the submission of a

Jewell instruction where the defendant contended that he believed that the timber

was on his own property).

      Lastly, the district court did not clearly err in imposing a two-level

sentencing enhancement based on Randall’s role in the conspiracy. The two-level

aggravating role enhancement applies “[i]f the defendant was an organizer, leader,

manager, or supervisor in any criminal activity.” U.S.S.G. § 3B1.1(c). Evidence

that Randall supervised at least one other participant is sufficient under U.S.S.G.


                                           3
§ 3B1.1(c). Here, Randall directed his three co-defendants on how to properly cut

fallen trees, he went to the cutting site to inspect the second tree and mark it for

cutting, directed his co-defendants on how best to profit off the wood, and directed

them to use his permit at Faith Farm. See United States v. Garro, 517 F.3d 1163,

1165 (9th Cir. 2008).

      The conviction and sentence are AFFIRMED.




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