                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 21 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 08-10250

              Plaintiff - Appellee,               D.C. No. 2:06-cr-00035-MCE-1

  v.
                                                  MEMORANDUM *
ERIC MCDAVID,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                       Argued and Submitted August 9, 2010
                            San Francisco, California

Before: GRABER, CALLAHAN, and BEA, Circuit Judges.

       A jury convicted Eric McDavid of conspiring to bomb one or more targets,

including a federal facility for tree genetics, a federal dam and fish hatchery, and

cell phone towers, in violation of 18 U.S.C. § 844(n). McDavid appeals his




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conviction and his sentence of 235 months’ imprisonment on eight grounds. We

have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.1

1. Jury Instruction Errors

       Primarily, McDavid asserts that he was entrapped by Anna, an undercover

government agent, and that the district court committed reversible error in

instructing the jury on his entrapment defense. During its deliberations, the jury

expressed particular confusion over whether the appropriate time frame for

assessing entrapment was in August 2004, when McDavid first met Anna, or in

June 2005, when McDavid and Anna first discussed the bombing plan. Among

other questions about entrapment, the jury asked “Was Anna considered a

government agent in Aug. 2004? If not, when did she become one?” The district

court orally responded “Yes,” meaning that Anna was considered an agent in

August 2004. The court later provided the jury with a typed copy of its response

that mistakenly stated “No” in answer to the same question.

      The court’s “No” response could have been interpreted as (1) a clerical

mistake, given the court’s prior oral “Yes” response and the fact that the court

neglected to answer the second part of the question as to when Anna became an



      1
        Because the parties are familiar with the facts, we repeat them here only as
necessary to the disposition of the case.

                                          2                                    08-10250
agent; (2) a partial response indicating that Anna was not considered an agent in

August 2004, but leaving unanswered when Anna became an agent; or (3) a

complete response indicating that Anna was not an agent in August 2004 and never

became an agent. McDavid contends that the jury’s interpretation was the last, and

thus the “No” response effectively eliminated his entrapment defense.

      We determine that the jury did not interpret the typed response as indicating

that Anna was never an agent. First, as the district court noted when it denied

McDavid’s motion for a new trial, the jurors would have asked a follow-up

question for clarification if the incorrect typed response confused them. Indeed, it

would be completely inconsistent for the jury to have thought that the incorrect

response meant that Anna was never an agent. The jury would have had to

disregard an overwhelming amount of evidence at trial showing that Anna was

recruited by the FBI, was instructed by them at every step of the way, had her car

wired, arranged for the wired safe house, worried about her cover being blown,

was paid for her undercover work, and talked openly at trial about her undercover

role. Further, the jury would have had to disregard the court’s prior correct oral

response that Anna was an agent in August 2004 and the instructions they received

about entrapment. Moreover, while the prosecution and defense disputed the

proper time frame for entrapment in their closing arguments, neither contended that


                                          3                                    08-10250
Anna was not an agent and both sides agreed that the jury could consider whether

Anna entrapped McDavid after June 2005. Viewing the incorrect typed response

in the context of the instructions and trial as a whole, we are unpersuaded that the

jury was led to believe Anna was never an agent, although the jury may have been

confused as to when she became an agent.2

      To the extent that the typed response confused the jury as to when to

consider Anna an agent for purposes of entrapment, any error was harmless

because a rational jury would have rejected the entrapment defense even if the

typed response had correctly reflected that Anna was an agent as of August 2004.

See United States v. Cherer, 513 F.3d 1150, 1155 (9th Cir. 2008) (“Erroneous jury

instructions constitute harmless error if it is ‘clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the error.’”). If a

defendant is predisposed to commit a crime, then the defendant cannot be

considered entrapped, even if he was induced. United States v. Jones, 231 F.3d

508, 518 (9th Cir. 2000). The five factors we use to determine predisposition

indicate that McDavid was predisposed.



      2
         In determining the effect of the incorrect response, we may not consider
the post-verdict juror declarations relied upon by McDavid. Fed. R. Evid. 606(b);
United States v. Span, 75 F.3d 1383, 1390 n.8 (9th Cir. 1996) (juror statements
inadmissible to show jury would have acquitted if properly instructed).

                                           4                                     08-10250
      The first factor for predisposition is the defendant’s character and reputation.

Id. While the jury heard testimony from McDavid’s sister and friend about

McDavid’s peaceful and gentle nature, the testimony was overwhelmed by more

specific evidence that McDavid had become radicalized, believed that nonviolent

protests were ineffective, and was undaunted by the possibility of accidental deaths

from his actions. The second factor is whether the government suggested the

crime. Id. Anna and the co-conspirators testified that McDavid initiated the

bombing campaign and invited them to join. The third factor is whether there was

a profit motive. Id. McDavid seemed motivated by a strongly held anarchic

ideology, which is arguably a stronger indicator of predisposition than a profit

motive.

      The fourth and most important factor is whether the defendant showed any

reluctance. Id. The evidence shows that McDavid was an active participant, if not

the leader, in targeting the Institute of Forest Genetics (“IFG”), conducting

reconnaissance, and attempting to construct a bomb. At trial, co-conspirator

Zachary Jenson testified that McDavid “seemed most like the brains” of the

operation because he “was coming up with most of the ideas.”

      The final factor for predisposition is the nature of the inducement. Id.

McDavid contends that part of Anna’s inducement was to string him along


                                          5                                      08-10250
romantically, similar to the facts in United States v. Poehlman, 217 F.3d 692, 702

(9th Cir. 2000). This case is distinguishable from Poehlman because there is no

evidence that Anna initiated the idea of the illegal conduct or that McDavid was

reluctant to engage in it. See id. at 704 (noting that the agent repeatedly suggested

the illegal activity, the defendant showed no interest prior to the suggestions, and

the defendant initially resisted).

      Anna’s role in supplying means for the conspiracy did not entitle McDavid

to a jury instruction on his “wherewithal” to commit the crime without Anna. In

Poehlman, we described predisposition as “the defendant’s willingness to commit

the offense prior to being contacted by government agents, coupled with the

wherewithal to do so[,]” id. at 698, but our decisions before and after Poehlman

have not included wherewithal as a factor for predisposition. See, e.g., United

States v. Thickstun, 110 F.3d 1394, 1397-98 (9th Cir. 1997) (rejecting wherewithal

argument); Jones, 231 F.3d at 518 (listing five-factor test for predisposition, which

does not include wherewithal). Even if a wherewithal instruction is available, the

court did not err in not giving such an instruction because there was ample

evidence that the group could have committed the crime without Anna, even if it

would have taken more time or thriftiness.




                                           6                                    08-10250
      McDavid’s other challenges to the jury instructions are unpersuasive, as

well. McDavid contends that the district court erred by defining June 2005 as the

relevant time frame for the jury to decide whether he was predisposed. Even if we

accepted McDavid’s contention, the error would be harmless. The evidence from

August 2004 forward still demonstrates that McDavid was predisposed.

Separately, it was not in error for the district court to answer the jury’s questions

about the time frame for predisposition without consulting the defense because the

court simply reiterated the jury instructions it had already discussed with counsel.

      Finally, McDavid contends that the district court erred in refusing to give an

instruction that adequately defined inducement. McDavid, however, does not

allege how the model instruction given by the court was inadequate to cover his

entrapment defense, and, at trial, failed to proffer a separate inducement

instruction. Accordingly, McDavid’s argument is unpersuasive. See United States

v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990) (failure to instruct on defense

theory is harmless if other instructions adequately cover proposed instructions).

2. Entrapment as a Matter of Law

      To prove that he was entrapped as a matter of law, McDavid must show that,

“viewing the evidence in the light most favorable to the government, no reasonable

jury could have found in favor of the government as to inducement or lack of


                                           7                                     08-10250
predisposition.” Poehlman, 217 F.3d at 698. Here, the evidence shows McDavid

was predisposed, and thus he was not entrapped.

3. Sufficiency of the Evidence

      McDavid contends that there was insufficient evidence to show that he and

the others agreed to at least one of the targets listed in the indictment and to use

explosives. To the contrary, the evidence showed that McDavid suggested

targeting the IFG, and the group discussed and researched the IFG extensively.

McDavid also initiated the idea of using explosives, and the group discussed bomb

types, bought materials, and attempted to make an explosive. Thus, viewing the

evidence in the light most favorable to the prosecution, a rational trier of fact could

have found beyond a reasonable doubt that McDavid was guilty of conspiring to

use explosives against one or more of the targets in the indictment, particularly the

IFG. See United States v. Everett, 692 F.2d 596, 601 (9th Cir. 1982) (reviewing

sufficiency of evidence to support conspiracy conviction).

4. Lesser Included Offense

      McDavid contends that he was entitled to an instruction on conspiracy

against the United States pursuant to 18 U.S.C. § 371, as a lesser included offense

of § 844(n). He was entitled to such an instruction only if the evidence would

permit a rational jury to find him guilty of the lesser included offense, § 371, and


                                            8                                    08-10250
acquit him of the greater, § 844(n). See United States v. Arnt, 474 F.3d 1159, 1163

(9th Cir. 2007). Here, a rational jury could not have done so because it would have

had to find all of the elements necessary for a conviction under § 844(n) in order to

convict McDavid under § 371. Section 371 requires a conspiracy to commit an

offense against the United States. The only type of offense against the United

States described in the indictment and at trial was the group’s plan to use bombs

against the federal targets. Thus, a rational jury would have had to find that

McDavid conspired to bomb federal targets—a violation of § 844(n)—in order to

find him guilty of conspiring to commit an offense against the United States for

purposes of § 371. McDavid was not entitled to an instruction under § 371.

5. Constructive Amendment or Fatal Variance

      McDavid asserts there was constructive amendment of the indictment or

fatal variance because the government failed to prove that he and the others agreed

to at least one of the targets listed in the indictment, including the IFG. This

argument fails because we have determined there was sufficient evidence to

support the finding that the group agreed to at least one of the targets.

6. Denial of Motions to Suppress and Dismiss

      McDavid contends that the warrantless audio-video surveillance recordings

from the safe house should have been suppressed under the Fourth Amendment


                                           9                                       08-10250
because he was living in the house and had a reasonable privacy expectation based

on his relationship with Anna. This argument fails because he and the others were

at the safe house to plan and implement the bombing campaign and bore the risk

that Anna, who arranged for the safe house, was an informant. See United States v.

Shryock, 342 F.3d 948, 978 (9th Cir. 2003) (concluding that warrantless video

surveillance of mafia meetings in hotel rooms rented by an informant did not

violate defendant’s objectively reasonable privacy interests). McDavid also claims

that the government taped conversations while Anna was not in the room;

however, there is no indication that any such evidence was introduced at trial or

reflected in witness testimony. Accordingly, the court did not err in denying

McDavid’s motion to suppress.

      McDavid also contends that the indictment should have been dismissed

based on outrageous conduct by the government. We review de novo whether

McDavid has met the “‘extremely high standard’” of proving “that the

government’s conduct was ‘so excessive, flagrant, scandalous, intolerable, and

offensive as to violate due process.’” United States v. Edmonds, 103 F.3d 822,

825, 826 (9th Cir. 1996) (citation omitted). We have already determined that

Anna’s actions did not amount to entrapment. Accordingly, her actions are

insufficient to meet the higher standard for proving outrageous government


                                         10                                     08-10250
conduct. See United States v. Citro, 842 F.2d 1149, 1152-53 (9th Cir. 1988)

(explaining that the defense of outrageous government conduct is similar to

entrapment but a much higher standard). Further, McDavid contends that it was

outrageous conduct for Anna to ask him about a friend of his who was prosecuted

for burning buildings in the name of the Earth Liberation Front, although Anna

knew McDavid had been advised by an attorney not to discuss the case. McDavid

has not shown how Anna’s questions about his friend prejudiced him. See United

States v. Stringer, 535 F.3d 929, 941 (9th Cir.), cert. denied, 129 S. Ct. 662 (2008)

(to establish outrageous government conduct based on an intrusion into the

attorney client relationship, defendant must show actual and substantial prejudice).

      McDavid’s remaining challenges to the denial of his motion to dismiss are

not meritorious. As noted, the warrantless taping was legal, and McDavid has not

argued why it would be outrageous despite being legal. Moreover, the U.S.

Attorney’s press conferences and resulting media coverage contained fair factual

summaries of the indictment. Finally, the U.S. Attorney’s statements about

defense counsel’s involvement in another case and possible conflict of interest

were neither inappropriate nor prejudicial given that the same attorney has

remained McDavid’s counsel throughout, including on appeal.




                                          11                                   08-10250
7. Cumulative Error

      McDavid asserts as cumulative error that the district court abused its

discretion by (1) admitting testimony from Officer Bruce Naliboff regarding “eco

terror” groups and the anarchist movement, and (2) admitting bad act and

unfavorable character evidence while limiting favorable character evidence to June

2005 forward. Contrary to McDavid’s contention, Naliboff’s non-scientific

testimony was not governed by Daubert v. Merrell Dow Pharms., 509 U.S. 579,

592 (1993), and, in any event, Daubert does not require an admissibility hearing.

Millenkamp v. Davisco Foods Int’l, Inc., 562 F.3d 971, 978-79 (9th Cir. 2009).

Additionally, McDavid has failed to indicate how Naliboff’s testimony was

unfairly prejudicial or how any prejudice outweighed the testimony’s probative

value. See United States v. Blitz, 151 F.3d 1002, 1008-09 (9th Cir. 1998).

Moreover, McDavid has not identified bad act or character evidence that was

admitted or excluded, and, even if he had, “[o]ne error is not cumulative error.”

United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).

8. Sentencing

      McDavid asserts that the district court improperly calculated the Sentencing

Guidelines range and failed to consider the factors set forth in 18 U.S.C. § 3553(a).

Under the Guidelines, the base level for an offense involving arson or explosives


                                         12                                    08-10250
directed at destroying a government or infrastructure facility is 24. U.S.S.G.

§ 2K1.4(a)(1)(B). Although McDavid argues that the jury did not specifically find

that he agreed to the targets or to use explosives, in order to convict McDavid, the

jury had to find that he conspired to damage or destroy, by fire or explosive,

government property or property used in interstate commerce. See 18 U.S.C.

§ 844(f)(1), (i), (n). Thus, the conviction supports the base level of 24.

          Additionally, McDavid contends the terrorism enhancement is inapplicable

because the conspirators’ intention to affect or retaliate against the government was

not established by the evidence. See 18 U.S.C. § 2332b(g)(5)(A) (defining crime

of terrorism); U.S.S.G. § 3A1.4 (enhancement for crime of terrorism). To the

contrary, at sentencing, the district court noted that the group had discussed a

number of different ways to disrupt the government and the economy, that the

object of the conspiracy was federal facilities, and that McDavid had clearly

expressed his goals and objectives in disrupting the government. Viewing the

evidence as a whole, these findings supporting the enhancement were not clearly

erroneous. See United States v. Tankersley, 537 F.3d 1100, 1110 (9th Cir. 2008)

(reviewing the district court’s findings of fact in support of a sentence for clear

error).




                                           13                                      08-10250
      Finally, the record reflects that the district court adequately considered

McDavid’s § 3553(a)(2) arguments for a reduced sentence. Cf. United States v.

Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc) (although the district court

should address defendant’s specific § 3553(a) arguments, it is presumed to have

considered all the factors and “need not tick off” each one). The district court

addressed entrapment, the juror statements, and the probation officer’s

recommendation. The court concluded that even though McDavid had no criminal

history, the nature of the offense was “extremely serious” and overrode evidence of

McDavid’s peaceful qualities. The district court also considered similarly situated

defendants and found that there were comparable, and even substantially longer,

sentences. In sum, McDavid fails to show that the sentence was an abuse of

discretion. See id. at 993 (reviewing sentence for abuse of discretion).

      McDavid’s conviction and sentence are AFFIRMED.




                                          14                                       08-10250
