                                                                                 FILED
                           NOT FOR PUBLICATION                                    JUL 20 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 07-10367

              Plaintiff - Appellee,              D.C. No. CR-00-00184-HG

  v.
                                                 MEMORANDUM*
JORGE CASAS, aka George aka Jorge
Cano,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                  Helen Gillmor, Senior District Judge, Presiding

                       Argued and Submitted June 14, 2011
                               Honolulu, Hawaii

Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.



       Jorge Casas appeals his conviction and sentence based on a conspiracy to

distribute and possess drugs with intent to distribute them, aiding and abetting

possession with intent to distribute, and use of a communication facility to


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
facilitate various drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 843(b), and

846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1. Sufficiency of the evidence

      The evidence at Casas’s trial, when viewed in the light most favorable to the

prosecution, was sufficient such that a “rational trier of fact could have found the

essential elements of [Counts 13, 15, and 17-20] beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

      The evidence of three intercepted telephone conversations from April 13,

2000 (Count 13), plus testimony from co-conspirators explaining the meaning of

code language used in the calls, was sufficient for the jury to rationally conclude

that Casas had used the telephone to make “easier or less difficult” a plan to

transport cocaine from Los Angeles to Maui. See United States v. Linn, 880 F.2d

209, 215 (9th Cir. 1989), abrogated on other grounds by Florida v. White, 526

U.S. 559 (1999).

      Evidence of intercepted telephone conversations from April 17, April 18,

April 20, April 21, and May 1, combined with testimony from co-conspirators, was

sufficient for the jury to convict Casas on Counts 15 and 17-20. A juror could

have rationally concluded that Casas had used the telephone to plan with co-




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conspirators to evade detection by authorities and thus to make “easier or less

difficult” the conspiracy to continue distributing drugs in the future. See id.

      2. Constructive amendment of the indictment

      Because Casas did not raise the issue before the district court, we review for

plain error his claim that the jury instructions constructively amended his

indictment. United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006).

Constructive amendment of an indictment amounts to reversible error. United

States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002). However, on plain error

review, we may overturn Casas’s conviction only if the district court committed a

plain error that affected his substantial rights. Hartz, 458 F.3d at 1019. Further,

even if we find plain error, “we may correct it at our discretion ‘if the error

seriously affect[ed] the fairness, integrity or public reputation of the judicial

proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

      The district court’s omission of heroin from the jury instructions was not

plain error, because doing so narrowed, rather than broadened, the scope of the

conduct charged in the indictment. See United States v. Miller, 471 U.S. 130, 136

(1985). Likewise, the jury instructions created only a nonfatal variance as to

Counts 13, 15, and 17.




                                           3
      As to Counts 3, 4, 7, 8, and 10, the jury instructions constructively amended

the indictment by allowing the jury to find only an agreement to possess drugs

with intent to distribute them, rather than requiring the jury to find actual

possession or distribution as charged in the indictment. Assuming without

deciding that this was plain error that affected Casas’s substantial rights, see

Adamson, 291 F.3d at 615, we nonetheless exercise our discretion to leave Casas’s

sentence intact. See Hartz, 458 F.3d at 1019. Casas received a sentence of 200

months for Counts 1, 11, and 14, with an additional 48-month sentence for Counts

3, 4, 7, 8, 10, 13, 15, and 17-20, to run concurrently. Even if we were to reverse

Casas’s sentence as to Counts 3, 4, 7, 8, and 10, the separate 200-month sentence

would not be affected. We thus conclude that the error as to Counts 3, 4, 7, 8, and

10 did not “seriously affect the fairness, integrity or public reputation” of Casas’s

trial and sentence. See Olano, 507 U.S. at 736.

      3. Multiple conspiracies jury instruction

      The need for a multiple conspiracies instruction generally arises when

multiple co-defendants stand trial together, and there is a risk of “spillover” of

guilt. See United States v. Anguiano, 873 F.2d 1314, 1317 (9th Cir. 1989).

However, “spillover” is not a concern where, as here, a defendant stands trial

alone. Id. at 1318. Further, although there may have been subgroups within the


                                           4
drug distribution ring, it is not necessary that each conspirator participate in each

facet of a large conspiracy like the one charged here. See United States v. Mincoff,

574 F.3d 1186, 1196 (9th Cir. 2009). Given that the evidence was consistent with

a single conspiracy and that Casas stood trial alone, the jury instructions as a whole

“fairly and adequately” covered the issues at trial. See Anguiano, 873 F.2d at

1317. It was not an abuse of discretion to refuse to instruct the jury concerning

multiple conspiracies. See id.

      4. Hearsay and Confrontation Clause objections

             (a) DEA-7 forms

      Although some of the remarks in the DEA-7 forms constituted hearsay, see

Fed. R. Evid. 801, the relevant information contained in the forms was cumulative

of witnesses’ live testimony such that any error in admitting the DEA-7s was

harmless. Assuming without deciding that the DEA-7 forms are testimonial

statements, admitting the reports did not violate Casas’s rights under the

Confrontation Clause, because the declarants testified at trial and were subject to

cross-examination. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-32

(2009).

             (b) Forensic drug reports




                                           5
       The district court did not violate the Confrontation Clause by admitting the

three forensic drug reports—one concerning the seized methamphetamine and two

concerning the seized cocaine—prepared by Tina Chang. She testified at trial to

the information contained therein and was subject to cross-examination. See id. at

2532. For the same reason, any hearsay error was harmless.

       The single methamphetamine report prepared by John Chappell, who did not

testify at trial, constituted inadmissible hearsay and violated the Confrontation

Clause. See id. However, the district court’s error in admitting the Chappell report

was harmless, because the information in the report was cumulative of that in

Chang’s methamphetamine report and testimony. See United States v. Nielsen, 371

F.3d 574, 581 (9th Cir. 2004) (“Confrontation Clause violations are subject to

harmless error analysis . . . .”).

              (c) Cocaine and methamphetamine

       The seized drugs are physical evidence and constitute neither an out of court

statement nor a testimonial statement. See Fed. R. Evid. 801; Crawford v.

Washington, 541 U.S. 36, 51 (2004). Accordingly, the district court did not violate

either the hearsay rule or the Confrontation Clause in admitting the drugs.

       As to Casas’s objections to the chain of custody for the seized cocaine and

methamphetamine, “gaps in the chain of custody normally go to the weight of the


                                          6
evidence rather than its admissibility.” Melendez-Diaz, 129 S. Ct. at 2532 n.1

(internal quotation marks omitted). The government presented the testimony of

numerous witnesses who had control over the drugs at various points after their

confiscation. Moreover, Casas does not identify any reason to suspect the drugs

were tainted, contaminated, or improperly manipulated in any way.

             (d) Fingerprint evidence

      The district court’s error in admitting hearsay testimony about the seized CD

case containing Casas’s fingerprint was harmless. The government introduced

other evidence linking Casas to the cocaine seized from Brian Jones’s luggage,

including the transcripts of the April 13, 2000 telephone calls and corroborating

testimony from Jones and co-conspirator Felipe Ruiz Castro.

      5. Chief Judge Gillmor’s failure to recuse sua sponte

      Chief Judge Gillmor did not commit plain error by not recusing herself from

presiding over Casas’s trial and sentencing, when she had previously sentenced his

girlfriend as a co-conspirator in a separate trial. At the sentencing hearing, the

judge adopted the four-level leadership enhancement as recommended in Casas’s

Presentence Investigation Report (PSR). Because Casas has not refuted any of the

findings in the PSR, he has not shown that the judge’s failure to recuse affected his

substantial rights. See Olano, 507 U.S. at 736.


                                           7
      6. Criminal History calculation

      The district court’s imposition of a Criminal History category of II, as

recommended in the PSR, did not amount to plain error that affected Casas’s

substantial rights. See id. Had the district court excluded Casas’s two prior

misdemeanor convictions from the Criminal History calculation, Casas would have

qualified for a Criminal History category of I. Because Casas received a sentence

far below the Guidelines range for a Criminal History category of I, he has not

shown that the district court’s inclusion of his prior convictions in its Criminal

History calculation affected his substantial rights.

      AFFIRMED.




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