                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 10 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30227

              Plaintiff - Appellee,              D.C. No. 9:12-cr-00050-DLC-1

  v.
                                                 MEMORANDUM*
CURTIS KEITH TICHENOR,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                           Submitted February 3, 2015**
                               Seattle Washington

Before: FISHER, BEA, and MURGUIA, Circuit Judges.

       Curtis Keith Tichenor appeals from his convictions for being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1), robbery in violation

of 18 U.S.C. § 1951(a) and brandishing a firearm in furtherance of a crime of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violence in violation of 18 U.S.C. § 924(c)(1)(A). We have jurisdiction under 28

U.S.C. § 1291, and affirm.

1.    We reject Tichenor’s argument that the felon-in-possession count was

misjoined with the robbery-related charges. See United States v. VonWillie, 59

F.3d 922, 929-30 (9th Cir. 1995) (joinder proper when the indictment charges the

defendant with being a felon in possession of the same weapons used in the

commission of other charged crimes and evidence overlaps).

2.    Tichenor’s argument that the district court abused its discretion by refusing

to sever the felon-in-possession count fails because he cannot establish that the

joint trial was “manifestly prejudicial.” United States v. Lewis, 787 F.2d 1318,

1321 (9th Cir.), opinion amended on denial of reh’g, 798 F.2d 1250 (9th Cir.

1986); see VonWillie, 59 F.3d at 930. The prosecutor stipulated to the prior

conviction and did not present any additional evidence about the crime. Also, as

the district court observed, the evidence related to the felon-in-possession count

overlapped significantly with the robbery charges. Given the overlapping

evidence, the “burden on judicial resources that would have resulted from hearing

the charges and evidence against [Tichenor] in multiple trials outweighs any

limited prejudice that [Tichenor] may have experienced” by having the charges

jointly tried. United States v. Lopez, 477 F.3d 1110, 1117 (9th Cir. 2007).


                                          2
3.    Tichenor argues that the district court erred by denying his motion for a

mistrial because the government, by showing a witness the gun during a pre-trial

meeting, “suggestively persuaded” the witness to identify the gun at trial as the

weapon used during the robbery. Before the allegedly suggestive meeting,

however, the witness had already described the gun in detail, and identified it in a

photograph.1 Tichenor therefore cannot show that the district court abused its

discretion by denying his motion for a mistrial. See Renico v. Lett, 559 U.S. 766,

774 (2010) (“[D]ecision to declare a mistrial is left to the sound discretion of the

judge, but the power ought to be used with the greatest caution, under urgent

circumstances, and for very plain and obvious causes.” (internal quotation marks

omitted)).

4.    We also reject Tichenor’s contention that the district court abused its

discretion when it denied his motion for acquittal. Because Tichenor failed to

object to the admission of Kimes’s prior inconsistent statement (Defense Exhibit




      1
         Tichenor does not challenge the earlier photo identification. He also fails
to provide authority extending the suggestive suspect identification case law to
identifications of physical evidence. See Johnson v. Sublett, 63 F.3d 926, 931-32
(9th Cir. 1995) (“There is no authority holding that a defendant’s due process right
to reliable identification procedures extends beyond normal authenticity and
identification procedures for physical evidence offered by the prosecution.”).

                                          3
500), the jury was free to consider the evidence for any purpose, or reject it in its

entirety. See United States v. Foster, 711 F.2d 871, 877 (9th Cir. 1983).

5.    Lastly, the district court did not abuse its discretion by refusing Tichenor’s

proposed addict instruction. The district court provided the jury with several

cautionary instructions regarding the witness’ credibility, including a general

credibility instruction, an immunity instruction, and an instruction cautioning the

jury about the witness’ prior felony conviction. Taken together, these instructions

adequately cautioned the jury about the witness’ trustworthiness. See United

States v. Burrows, 36 F.3d 875, 878 (9th Cir. 1994) (holding that an addict

instruction is not required where, as here, there was an adequate opportunity for the

adverse party to cross-examine the witness about her addiction and the court’s

reading of other cautionary instructions gave the jury an adequate basis to assess

the witness’ credibility).

      AFFIRMED.




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