                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 5 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30281

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-00083-RMP-1
 v.

JASON C. BROWN,                                 MEMORANDUM*
                                                   and
                Defendant-Appellant.              ORDER


UNITED STATES OF AMERICA,                       No.    16-30287

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00021-RMP-25
 v.

JASON C. BROWN,

                Defendant-Appellant.

                  Appeals from the United States District Court
                     for the Eastern District of Washington
                Rosanna Malouf Peterson, District Judge, Presiding

                          Submitted December 3, 2018**
                              Seattle, Washington

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.

      Jason Brown appeals his conviction and sentence for conspiracy to obstruct

justice by retaliation against a witness.1 Because the parties are familiar with the

facts, we do not recite them here. We have jurisdiction under 28 U.S.C. § 1291.

We affirm.

                                     Conviction

      Substantial evidence supports the jury’s guilty verdict. Jackson v. Virginia,

443 U.S. 307, 319 (1979). Brown acknowledges that at his earlier trial for

conspiracy to distribute controlled substances, he wrongfully obtained sealed trial

exhibits revealing the identity and expected testimony of an anonymous

cooperator. At the trial for conspiracy to obstruct justice, the Government

presented evidence that Brown learned the cooperator’s identity, harbored ill-will

toward the cooperator, reproduced the information, and disseminated information

on the cooperator to associates, including to his alleged co-conspirator. Brown’s

alleged co-conspirator confirmed that he had received and disseminated the

information. The Government’s gang expert testified at length about Brown’s and

his alleged co-conspirator’s gang membership, contextualized their

communications, and identified the risk they posed to the cooperator. A rational


1
 Brown withdrew his appeal in Case No. 16-30287. That appeal is DISMISSED.
Brown also withdrew his argument that he received ineffective assistance of
counsel, so we do not address that issue.

                                          2
factfinder could have inferred from this circumstantial evidence that Brown and his

alleged co-conspirator agreed to retaliate against the cooperator and took at least

one overt act—most evidently, reproducing and disseminating the cooperator’s

information—to that end.

      The district court did not abuse its discretion by permitting testimony from

the Government’s gang expert under Federal Rules of Evidence 403 and 702. See

United States v. Hankey, 203 F.3d 1160, 1166 (9th Cir. 2000). The expert’s

knowledge and experience qualified him to testify, his testimony stuck to matters

within his expertise and personal knowledge, and the topics he covered were

directly relevant to core factual issues.

      Even assuming that Brown preserved his constructive amendment argument

and reviewing the issue de novo, United States v. Ward, 747 F.3d 1184, 1188 (9th

Cir. 2014), the Government did not constructively amend the indictment to assert

that possession alone constitutes an overt act. The Government did not clearly

identify possession as a standalone overt act when, in commencing its closing

argument, it listed acts that included possession and then made passing reference to

“these . . . overt acts.” The Government later listed and expounded on the overt

acts in a manner faithful to the indictment. At most, the earlier reference was loose

language, and it did not amount to an effective amendment of the indictment.




                                            3
                                      Sentence

       We also affirm the district court’s decision at sentencing to group the

distribution and obstruction of justice offenses. Where, as here, the defendant is

convicted of both an obstruction offense and “the underlying offense (i.e., the

offense that is the object of the obstruction),” the Sentencing Guidelines point to

Section 3D1.2(c). U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2J1.2 cmt.

n.3 (U.S. Sentencing Comm’n 2014). Section 3D1.2 directs the court to group

counts “[w]hen one of the counts embodies conduct that is treated as a[n] . . .

adjustment to[] the guideline applicable to another of the counts,” id. § 3D1.2(c),

and the offenses are “closely related,” id. § 3D1.2 cmt. n.5.

      The district court applied an upward adjustment because Brown’s

obstruction of justice targeted the “investigation, prosecution, or sentencing” of the

distribution charge and was closely related to the distribution offense. Id. § 3C1.1.

The court did not clearly err in finding that Brown took the evidence during the

distribution trial, before reaching a plea agreement and before sentencing. See

United States v. Stoterau, 524 F.3d 988, 997 (9th Cir. 2008) (factual findings at

sentencing are reviewed for clear error). Based on these findings, the prosecution

was ongoing and the sentencing had not occurred when the obstruction began.

U.S.S.G. § 3C1.1. The obstruction and distribution offenses were also closely

related, in that Brown obstructed justice by targeting a witness in his ongoing


                                          4
distribution prosecution. See id. § 3D1.2 cmt. n.5. The district court acted within

its discretion in applying the obstruction enhancement and grouping the offenses.

      AFFIRMED.




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