                                                                            FILED
                           NOT FOR PUBLICATION
                                                                               DEC 17 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-10212

              Plaintiff-Appellee,                D.C. No.
                                                 3:08-cr-00730-WHA-20
 v.

MANUEL FRANCO, aka Dreamer,                      MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                     Argued and Submitted December 4, 2018
                              Seattle, Washington

Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.

      Defendant Manuel Franco appeals his conviction of conspiracy to commit a

violent crime in aid of racketeering ("VICAR"), specifically, assault with a

dangerous weapon in violation of 18 U.S.C. § 1959(a)(6). We affirm.

      1. The district court did not abuse its discretion by denying further funding

for an expert in FBI practices. The court permissibly concluded that the expert’s


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
services were not necessary for adequate representation. See United States v. Pete,

819 F.3d 1121, 1130 (9th Cir. 2016) (reviewing the district court’s denial of a

request for public funds to hire an expert for abuse of discretion). Defendant

argues that the expert’s advice and testimony would have helped prove that

Defendant lacked criminal intent because he thought that he was functioning as an

informant, not as a member of MS-13. But the expert could not assist in

determining, and could not testify about, what Defendant thought. See United

States v. Nelson, 137 F.3d 1094, 1101 n.2 (9th Cir. 1998) (holding that the district

court did not err in denying funds for an expert witness because the testimony was

not relevant).

      2. The district court did not abuse its discretion by excluding testimony

from a "false confession" expert. See United States v. Christian, 749 F.3d 806, 810

(9th Cir. 2014) (reviewing the exclusion of expert testimony for abuse of

discretion). The court permissibly balanced the probative value of the proposed

testimony against its potential for unfair prejudice and permissibly excluded it

under Federal Rule of Evidence 403. United States v. Anderson, 741 F.3d 938,

950 (9th Cir. 2013).

      3. Reviewing de novo, United States v. Green, 592 F.3d 1057, 1065 (9th

Cir. 2010), we hold that the evidence was sufficient to convict Defendant. First,

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because this was a conspiracy charge, the government did not have to prove that

any assault actually occurred. See United States v. Macias-Valencia, 510 F.3d

1012, 1014 (9th Cir. 2007) ("By definition, conspiracy and attempt are inchoate

crimes that do not require completion of the criminal objective.").

      Second, the evidence suffices under the corpus delicti rule. In just one

example, the government provided extensive evidence that Defendant was

involved in the October 29, 2005 shooting. See United States v. Lopez-Alvarez,

970 F.2d 583, 592 (9th Cir. 1992) (holding that the state must introduce sufficient

evidence to establish that the criminal conduct at the core of the offense has

occurred). Additionally, testimony corroborated some of Defendant’s legally

obtained confessions, demonstrating the trustworthiness of the confessions. See

United States v. Niebla-Torres, 847 F.3d 1049, 1058 (9th Cir. 2017) ("[T]he same

physical and circumstantial evidence that corroborates [Defendant’s] confession to

the core of the offense also verifies the authenticity of his confessed involvement

in the conspiracy.").

      Third, the evidence suffices to show that Defendant acted to maintain his

position in the gang. See United States v. Banks, 514 F.3d 959, 968 (9th Cir.

2008) (holding that the government is not required "to show that the defendant was

solely, exclusively, or even primarily motivated by a desire to gain entry into, or

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maintain or increase his status within, the criminal organization"). Gang members’

testimony shows that Defendant was an active member of MS-13 and put in the

"work" required to both remain a member and earn respect.

      4. The district court did not abuse its discretion in declining to instruct the

jury on a duress defense. United States v. Houston, 648 F.3d 806, 815 (9th Cir.

2011). Defendant did not establish an immediate threat of death or serious bodily

injury and, therefore, did not make the prima facie showing necessary for a jury

instruction on duress. United States v. Chi Tong Kuok, 671 F.3d 931, 948 (9th Cir.

2012).

      5. The district court did not plainly err by declining to give a specific

unanimity instruction. United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir.

2015). The jury, in this case, had to be unanimous as to (1) the existence of a

conspiracy between Defendant and fellow gang members to attack enemies of the

gang with a dangerous weapon, and (2) the commission of an overt act by one of

the members of the conspiracy. United States v. Ruiz, 710 F.3d 1077, 1081 (9th

Cir. 2013). The jury did not have to decide which incidents made up the

conspiracy, as those are "preliminary factual issues" that support the required

elements. Schad v. Arizona, 501 U.S. 624, 632 (1991) (internal quotation marks

omitted).

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      6. Because there were no errors, there was no cumulative error. See United

States v. Martinez-Martinez, 369 F.3d 1076, 1090 (9th Cir. 2004) ("[T]he

‘cumulative error’ analysis is inapposite to this case. Defendant has failed to

demonstrate any erroneous decisions by the trial court.").

      AFFIRMED.




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