                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 11 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50138

                Plaintiff-Appellee,             D.C. No.
                                                2:17-cr-00498-FMO-1
 v.

DAVID PHILLIPS, AKA David John                  MEMORANDUM*
Phillips,

                Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                   Fernando M. Olguin, District Judge, Presiding

                       Argued and Submitted June 10, 2019
                              Pasadena, California

Before: WARDLAW, BYBEE, and OWENS, Circuit Judges.

      David Phillips appeals from his jury conviction for conspiracy to use

interstate commerce facilities in the commission of a murder-for-hire in violation

of 18 U.S.C. § 1958. Specifically, Phillips challenges the district court’s decision

to grant the government’s motion in limine to exclude any evidence relating to




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Phillips’ kidney disease.1 As the parties are familiar with the facts, we do not

recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court abused its discretion in excluding all evidence relating to

Phillips’ medical condition as irrelevant and unduly prejudicial. See United States

v. Torres, 794 F.3d 1053, 1059 (9th Cir. 2015) (stating the standard of review); see

also Fed. R. Evid. 402, 403. Phillips sought to rebut the government’s argument

that his muted reaction to his co-conspirator, David Suiaunoa, informing him of the

victim’s (staged) murder demonstrated that he previously entered into a murder-

for-hire agreement. The evidence of Phillips’ kidney disease was relevant to his

defense that he was fatigued and confused during this encounter. The evidence

was also relevant to Phillips’ assertion that he did not confront Suiaunoa, who is

much larger than Phillips and has a history of violence, because he feared that

Suiaunoa would assault him and dislodge the fistula device in his arm that aids

with dialysis, causing serious bodily harm. Any danger that the medical condition

evidence would generate sympathy for Phillips could have been dealt with by

sanitizing the evidence. See United States v. Boulware, 384 F.3d 794, 808 (9th

Cir. 2004).

      However, the error was harmless because the jury had a substantial amount


      1
             In a concurrently filed opinion, we conclude that Phillips’ offer to
forgive a legally unenforceable debt satisfies the pecuniary value requirement of
§ 1958.

                                          2
of additional evidence to convict. See United States v. Stever, 603 F.3d 747, 754

(9th Cir. 2010) (explaining that a defendant must “show a likelihood that the

outcome would have been different if the material had been disclosed” to win

reversal of the conviction).

      Phillips’ constitutional challenges also fail. The evidentiary exclusion did

not violate Phillips’ right to present a complete defense because the evidence was

not his only avenue to present his defense theory. See Torres, 794 F.3d at 1062-63

(determining that a defendant was not denied his right to present a complete

defense where “the district court did not preclude [the defendant] from proffering

an affirmative defense”). In addition, the district court did not deprive Phillips of

his right to testify in his own defense because Phillips could have testified, but

chose not to, and the evidentiary exclusion did not significantly impair his defense.

See United States v. Scheffer, 523 U.S. 303, 315 (1998) (stating that there is

constitutional error only if the exclusion of evidence “significantly undermined

fundamental elements of the defendant’s defense”).

      AFFIRMED.




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