                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 2 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50441

                Plaintiff-Appellee,             D.C. No. 3:14-cr-02863-W-2

 v.
                                                MEMORANDUM*
JOHN PATRICK VESCUSO,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Thomas J. Whelan, District Judge, Presiding

                       Argued and Submitted April 10, 2019
                              Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District
Judge.

      John Vescuso appeals his conviction and sentence for conspiracy to commit

theft of government property for his role in a conspiracy to remove and sell scrap

metal from Camp Pendleton Marine Corps Base. After a jury trial, Vescuso was



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
convicted of a single count of conspiracy under 18 U.S.C. § 371 and sentenced to

33 months in prison, restitution of $555,640, and forfeiture of $555,640.

      1.     Vescuso raises a series of challenges to limitations the district court

placed on his ability to impeach witnesses and introduce specific testimony at trial.

      First, Vescuso challenges restrictions the district court placed on his ability

to impeach Cecil Garr, a co-defendant and cooperating witness, about a prior

felony conviction. The conviction was more than 15 years-old and did not involve

a crime of dishonesty. The district court did not abuse its discretion in limiting

Vescuso’s ability to impeach Garr, either directly or indirectly, based on this

conviction. See United States v. Bensimon, 172 F.3d 1121, 1125 (9th Cir. 1999).

      Second, Vescuso challenges limitations on his ability to cross-examine Garr

based on Garr’s plea negotiations, which we review for abuse of discretion. United

States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007). As a whole, Vescuso was

able to put before the jury that Garr had pled guilty and agreed to cooperate; and,

in exchange for that guilty plea, Garr had received benefits—a lower loss amount,

a lower amount of restitution, dismissal of one criminal count, and the hope of a

favorable sentencing outcome in exchange for his testimony. Because Vescuso was

able to impeach Garr with the general contours of the benefits conferred through

his plea agreement, we cannot say the district court abused its discretion in limiting

impeachment based on specific details of those benefits. Larson, 495 F.3d at 1101.


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      Third, Vescuso challenges the district court’s decision to exclude Vescuso’s

proposed sentencing expert, which we review for abuse of discretion. United States

v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000). Because Vescuso was able to

introduce the general contours of Garr’s cooperation agreement, the district court

did not abuse its discretion in excluding the expert’s testimony, which the court

determined would waste time and would be cumulative. See United States v.

Johnson, 297 F.3d 845, 862 (9th Cir. 2002).

      Fourth, Vescuso challenges limitations the district court placed on his use of

a videotaped interrogation of Garr by federal investigators. Specifically, Vescuso

sought to introduce videotaped statements by the investigators that a reasonable

jury could have interpreted as the agents strongly pressuring Garr to implicate

Vescuso. Although the district court clearly erred in excluding those statements on

hearsay grounds (since they were not being offered for their truth), Vescuso could

have conveyed their import by more pointed cross-examination of Garr and by

playing for the jury Garr’s videotaped responses to the agents’ questioning.

Although Vescuso’s counsel may have misunderstood the scope of the district

court’s ruling, the district court only excluded the agents’ statements, and Vescuso

was not prevented from using the video to confront Garr with Garr’s own

videotaped statements. Thus, even though the district court’s exclusion of the

agents’ statements was error, the error was harmless. United States v. Torres, 794


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F.3d 1053, 1063 (9th Cir. 2015).

      Fifth, Vescuso challenges the district court’s limitation on Vescuso’s

impeachment of Sylvia O’Brien. Vescuso sought to impeach O’Brien by playing a

recorded telephone conversation she had with Garr. Vescuso sought to introduce

the audio of O’Brien’s call with Garr, during O’Brien’s testimony, because Garr’s

statements, according to Vescuso, were lies. The district court suggested counsel

could ask O’Brien about Garr’s answers, but Garr’s statements could not be played

to impeach O’Brien. The district court did not abuse its discretion in limiting

impeachment in this way. Larson, 495 F.3d at 1101.

      2.     Vescuso next challenges the district court’s decision, over Vescuso’s

objection, to give an “other acts” limiting instruction to the jury. We review the

district court’s formulation of jury instructions for abuse of discretion. United

States v. Lloyd, 807 F.3d 1128, 1165 (9th Cir. 2015). Given that evidence of

Vescuso’s dealings with Garr prior to April 2010—conduct that was allegedly

illegal but uncharged—was introduced at trial, the district court did not abuse its

discretion in giving the “other acts” instruction. See Lloyd, 807 F.3d at 1167;

Comment, Ninth Circuit Model Jury Instruction 2.11 (noting giving instruction,

similar to Model Instruction 4.3, may be appropriate sua sponte).

      3.     Vescuso next challenges the district court’s denial of his motion for a

new trial based on newly discovered evidence—evidence suggesting that Garr


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received a bribe from one of his superiors at the base. We review that denial for an

abuse of discretion. United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009).

The new evidence here would not likely have resulted in an acquittal. See United

States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005). The district court did not

err in denying the motion or counsel’s request for additional CJA funds.

      4.     Finally, Vescuso raises a series of challenges to his sentence, the

restitution imposed, and the forfeiture judgment entered against him.

      First, we conclude that any Apprendi error that occurred was harmless. See

United States v. Hunt, 656 F.3d 906, 913 (9th Cir. 2011). Second, 18 U.S.C. §

3663A imposes a mandatory restitution amount equal to the loss suffered by the

government. This provision controls the amount of restitution imposed on

Vescuso, regardless of the restitution imposed on Garr.

      However, we agree with Vescuso that, based on the record before the district

court, the imposition of a forfeiture judgment for the entirety of the loss suffered

by the government, absent a showing that Vescuso actually acquired the entirety of

that amount, was likely incorrect in light of Honeycutt v. United States, 137 S. Ct.

1626, 1632 (2017). We therefore remand to the district court to determine the

amount of money Vescuso “himself actually acquired as the result of the crime,”

id. at 1635, and to amend the forfeiture judgment, if necessary.

      AFFIRMED in part; REVERSED and REMANDED in part.


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