                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 11 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10572

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00283-RCJ-
                                                 PAL-5
 v.

JACOREY TAYLOR, AKA Mo-B,                        MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                        Argued and Submitted June 8, 2015
                            San Francisco, California

Before: SILVERMAN, GOULD, and HURWITZ, Circuit Judges.

      Jacorey Taylor appeals his convictions for 1) conspiracy to engage in a

racketeering influenced corruption organization, 18 U.S.C. § 1962(d); 2) violent

crime in aid of racketeering, 18 U.S.C. §§ 1959(a)(1) & (2); 3) use of a firearm

during a crime of violence, 18 U.S.C. § 924(c)(1); 4) conspiracy to engage in drug

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                         -2-
trafficking, 21 U.S.C. § 846; and 5) two counts of possession with intent to

distribute a controlled substance, 21 U.S.C. § 841(a)(1) & (b)(1)(C)(iii). We

AFFIRM.

      1.     Motion for Judgment of Acquittal

      Where, as here, the defendant did not renew his Federal Rule of Criminal

Procedure 29 motion for judgment of acquittal following the close of his own case,

we review the denial of that motion for plain error. United States v. Cruz, 554 F.3d

840, 844 (9th Cir. 2009); United States v. Patton, 771 F.2d 1240, 1243 (9th Cir.

1985). Taylor’s main argument is that defense witnesses testified to his innocence.

On a Rule 29 motion, however, the court must construe the evidence in the light

most favorable to the government. United States v. Odom, 329 F.3d 1032, 1034

(9th Cir. 2003).

      Resolving all credibility issues in the government’s favor, it is clear that the

district court did not err in denying Taylor’s motion. Without even looking to

Taylor’s many admissions of guilt during his testimony, the testimony of the

government’s numerous witnesses provided more than sufficient evidence from

which a rational juror could find the Playboy Bloods are a RICO enterprise, Taylor

joined the enterprise with knowledge of its purpose and that at least two predicate

acts would be committed, there was a nexus between the predicate acts and the
                                         -3-
activities of the enterprise, and Taylor was present with a gun when Billy Ray

Thomas was murdered.

      2.     Evidentiary Rulings

      We review a district court’s admission of evidence for abuse of discretion

when the defendant timely objected and for plain error when he raised the

objection for the first time on appeal.1 United States v. Hieng, 679 F.3d 1131,

1135 (9th Cir. 2012).

      Taylor objected to Agent Shields’ testimony that Jessie James Cooper told

him Cooper and Taylor had discussed Taylor’s robbery of the Gold Rush casino in

Henderson and desire to rob other casinos as well. The district court admitted this

evidence not as prior bad acts but rather only as proof of Cooper’s prior

inconsistent statements after Cooper testified he did not know who committed the

Klondike casino robbery with him and that the person he knew as “Corey” was not

Taylor. It was not introduced for the truth of the matter asserted – nor should it

have been – nor does Taylor make a hearsay argument on appeal. Furthermore, the




      1
       Taylor waived any objection to evidence he shot a man named Rendell
Bright by raising the issue first. Ohler v. United States, 529 U.S. 753, 755-56
(2000); McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 954
(9th Cir. 2011).
                                         -4-
judge gave a limiting instruction to the jury that the evidence could only be

considered for impeachment.

      Taylor did not object on Federal Rule of Evidence 404(b) grounds to the rest

of the evidence he now contends was erroneously admitted. None of that evidence

was admitted as character evidence, but rather as direct proof of the existence of

the RICO enterprise, its method of operation, and the predicate acts of racketeering

activity charged in the indictment. The evidence was therefore highly relevant to

the RICO count, not unduly prejudicial, and not unfair character evidence. Its

admission was not in error. United States v. Moorehead, 57 F.3d 875, 878 (9th

Cir. 1995); United States v. Robertson, 15 F.3d 862, 871 (9th Cir. 1994), reversed

on other grounds by 514 U.S. 669 (1995); United States v. Baker, 10 F.3d 1374,

1413 (9th Cir. 1993), overruled on other grounds by Apprendi v. New Jersey, 530

U.S. 466 (2000).

      3.     Jury Instructions

      We review the legal accuracy of a jury instruction de novo. United States v.

Knapp, 120 F.3d 928, 930 (9th Cir. 1997). We review a district court’s precise

formulation of jury instructions for abuse of discretion. United States v. Long, 301

F.3d 1095, 1104 (9th Cir. 2002) (per curiam).
                                           -5-
      Although the district court erred in giving the Pinkerton instruction as to the

substantive drug trafficking offenses charged in Counts 17 and 18 because Taylor

was not charged in those counts with conspiracy, the error was harmless. United

States v. Nakai, 413 F.3d 1019, 1023 (9th Cir. 2005), cert. denied, 546 U.S. 995

(2005); see also Pinkerton v. United States, 328 U.S. 640 (1946). The evidence

overwhelmingly showed that Taylor committed the substantive offenses as a

principal and/or aider and abetter. Taylor admitted Count 18 on the witness stand

and the government presented damning and unrebutted evidence – including audio

recordings from a wire worn by an informant – demonstrating that Taylor at the

very least aided and abetted the drug sale charged in Count 17.

      Taylor abandoned any argument that the district court erred in refusing to

give his four requested instructions by failing to articulate until his reply brief why

he believes the district court erred. Fed. R. App. P. 28(a)(8)(A); United States v.

Berber-Tinoco, 510 F.3d 1083, 1089 n.2 (9th Cir. 2007); United States v. Kimble,

107 F.3d 712, 715 n.2 (9th Cir. 1997).

      4.     Dismissal of Juror

      We review the dismissal of a juror during deliberations for abuse of

discretion. United States v. Symington, 195 F.3d 1080, 1085 (9th Cir. 1999).

“[T]he district court [is] in the ‘best position’ to evaluate the jury’s ability to
                                           -6-
deliberate[.]” United States v. Beard, 161 F.3d 1190, 1193 (9th Cir. 1998) (citing

United States v. Ross, 886 F.2d 263, 267 (9th Cir. 1989)). “Under the abuse-of-

discretion standard, we must affirm unless we are ‘left with the definite and firm

conviction that the [district] court committed a clear error of judgment in reaching

its conclusion after weighing the relevant factors.’” United States v. Egbuniwe,

969 F.2d 757, 761 (9th Cir. 1992) (citing United States v. BNS, Inc., 858 F.2d 456,

464 (9th Cir. 1988)).

      The district court conducted a sufficient inquiry into Juror #3's ability to

deliberate and the evidence showed she could not because she could not understand

the law governing the case. There was no evidence indicating the juror’s conflict

with the other jurors stemmed from her view of the merits of the case and no

evidence before the court regarding what her views of the merits were. The court

did not abuse its discretion in finding good cause existed to dismiss Juror #3. Fed.

R. Crim. P. 23(b)(3); Symington, 195 F.3d at 1085; United States v. Walsh, 75 F.3d

1, 4-5 (1st Cir. 1996).

      In accordance with Federal Rule of Criminal Procedure 24(c)(3), the court

instructed the reconstituted jury to begin its deliberations anew and the fact that the

jury returned a guilty verdict several hours later is no indication it failed to do so.
                                       -7-
“A jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. 225,

234 (2000).

      AFFIRMED.
