                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 23 2013

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


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10036

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01040-MHM-4

       v.
                                                 MEMORANDUM*
CORDAE L. BLACK,

              Defendant - Appellant.

UNITED STATES OF AMERICA,                        No. 11-10037

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01040-MHM-6

       v.

ANGEL MAHON,

              Defendant - Appellant.

UNITED STATES OF AMERICA,                        No. 11-10039

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01040-MHM-2

       v.

KEMFORD J. ALEXANDER,

              Defendant - Appellant.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
UNITED STATES OF AMERICA,                        No. 11-10077

               Plaintiff - Appellee,             D.C. No. 2:09-cr-01040-MHM-3

          v.

TERRANCE L. TIMMONS,

               Defendant - Appellant.

                    Appeals from the United States District Court
                             for the District of Arizona
                     Mary H. Murguia, District Judge, Presiding

                       Argued and Submitted January 16, 2013
                             San Francisco, California

Before: NOONAN, GRABER and FISHER, Circuit Judges.

      Defendants appeal their jury convictions of conspiracy to possess cocaine

with intent to distribute cocaine and use of a firearm in furtherance of a drug

trafficking offense.1 We reject their various arguments, and we affirm.

                                 1. Motion to Sever

      Defendant Timmons, joined by Mahon, argues that the district court abused

its discretion in denying his motion to sever his trial from that of his codefendants.

      Timmons waived this issue by failing to renew his motion to sever at the

close of evidence. See United States v. Alvarez, 358 F.3d 1194, 1206 (9th Cir.


      1
       Some of the issues raised by these consolidated appeals are addressed in a
concurrently filed published opinion.

                                          2
2004). He has not demonstrated that either of the recognized exceptions to the

renewal requirement applies. See United States v. Decoud, 456 F.3d 996, 1008

(9th Cir. 2006) (“A defendant . . . will not be found to have waived his challenge if

he can show either that he diligently pursued severance or that renewing the

motion would have been an unnecessary formality.”). We reject his argument that

filing a motion to sever and arguing the motion at a hearing constitute diligent

pursuance of severance; such an argument would allow the exception to swallow

the rule of renewal. Timmons’ argument that “it was apparent” the district court

would deny a renewed motion to sever is conclusory and not supported by the

record.

      Mahon likewise waived this issue by failing to renew the motion at the close

of evidence.2 See Alvarez, 358 F.3d at 1206. He also did not raise the issue in his

briefs before this court, instead filing a “notice of joinder” in Timmons’ argument

only days before oral argument; nor did he argue why the district court’s failure to

sever his trial from that of his codefendants was an abuse of discretion as to him.

See United States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012) (argument is

waived when it was not raised in an appellant’s opening brief); Milne v. Hillblom,




      2
          Unlike Timmons, Mahon failed even to file a pretrial motion to sever.

                                          3
165 F.3d 733, 736 n.6 (9th Cir. 1999) (argument is waived when an appellant “fails

to present any argument or pertinent authority to support” it).

                         2. Entrapment Jury Instructions

      a. We reject Black, Alexander and Mahon’s argument that the district

court’s jury instruction on entrapment was erroneous because it articulated the two

elements of entrapment in the disjunctive. The district court properly instructed

the jury that, to disprove entrapment, the government must prove either

predisposition or noninducement. See United States v. Varela, 993 F.2d 686, 689

(9th Cir. 1993); United States v. Hoyt, 879 F.2d 505, 509 (9th Cir. 1989).

      b. To the extent Alexander contends that the district court erroneously failed

to use a special verdict form, he waived this argument by failing to specifically and

distinctly raise and argue it in his opening brief. See Miller v. Fairchild Indus.,

Inc., 797 F.2d 727, 738 (9th Cir. 1986). Additionally, Alexander failed to raise this

issue before the district court, and he has not cited any Ninth Circuit authority

requiring the use of a special verdict form. Therefore, he has not demonstrated

plain error. See United States v. Johnson, 626 F.3d 1085, 1088 (9th Cir. 2010).

      c. We reject Alexander’s argument that the entrapment jury instruction

overemphasized the predisposition element, was confusing, limited the factors the

jury could consider or constituted improper comment. The district court did not


                                           4
abuse its discretion in its formulation of the entrapment jury instruction, which

mirrored Ninth Circuit Model Jury Instruction 6.2. The instruction as formulated

contained correct statements of the law regarding entrapment and did not mislead

the jury in any way. See United States v. Powell, 955 F.2d 1206, 1210 (9th Cir.

1991). Including legally accurate definitions of “predisposition” and “inducement”

– terms that may not fall within the common knowledge of most jurors – did not

hinder the jury as it deliberated, nor did the definitions improperly limit factors the

jury could consider as predisposition or inducement.

      d. We reject Mahon’s argument that the district court erroneously instructed

the jury regarding inducement. The jury instruction regarding the types of rewards

that may constitute government inducement for purposes of entrapment is

consistent with United States v. Spentz, 653 F.3d 815, 819 (9th Cir. 2011), as well

as prior circuit cases upon which Spentz relied.

           3. Sufficiency of Evidence Regarding Entrapment Defense

      We reject Alexander and Mahon’s argument that the government failed to

disprove entrapment. The government presented sufficient evidence from which

the jury could conclude that the defendants were not induced by government agents

to commit the crimes charged. See United States v. Mejia, 559 F.3d 1113, 1116

(9th Cir. 2009) (government must prove either predisposition or noninducement).


                                           5
      Alexander’s argument that the proceeds of the hypothetical stash house

robbery constitute inducement is foreclosed by Spentz, 653 F.3d at 820 n.4 (“[T]he

reward promised cannot be the criminal reward but must be some other, non-

criminal reward that the individual receives for committing the crime.”).

Alexander’s argument that a proposal to steal drugs from drug dealers rather than

innocent people can constitute government inducement is unsupported by citation

to any authority.

      Finally, there is no evidence in the record that the government preyed on

Mahon’s purported need for comradeship or that Mahon demonstrated his need for

comradeship to the government such that it could have taken advantage of such a

need, thus distinguishing this case from United States v. Poehlman, 217 F.3d 692

(9th Cir. 2000).

         4. Conspiracy Between a Defendant and Government Agent




                                         6
      Alexander argues that the government has not established that he conspired

with anyone other than Agent Zayas and thus his conviction must be reversed.3

      The government presented sufficient evidence from which a rational trier of

fact could have found the existence of a conspiracy and Alexander’s connection to

that conspiracy. See United States v. Reed, 575 F.3d 900, 923-24 (9th Cir. 2009).

This case is distinguishable from United States v. Paret-Ruiz, 567 F.3d 1 (1st Cir.

2009), in which the court concluded that the government had presented evidence

only that Paret-Ruiz was a middleman who hoped to consummate an agreement

between an undercover agent and other individuals to accomplish an illegal

objective, and that there was no evidence that Paret-Ruiz and the other individuals

were actually a team committed to working together to traffic drugs. Id. at 7.

Here, the government presented ample evidence that a group of individuals, in

addition to Agent Zayas and including Alexander, agreed to and intended to

perform a stash house robbery.

      3
         Mahon joined Alexander’s argument, which was specific to the evidence
regarding Alexander’s participation in the conspiracy, but Mahon has not made any
arguments regarding the government’s lack of evidence that he conspired with
anyone but an agent. His argument is therefore waived. See Entm’t Research
Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997)
(“We review only issues which are argued specifically and distinctly in a party’s
opening brief. We will not manufacture arguments for an appellant, and a bare
assertion does not preserve a claim . . . . [J]udges are not like pigs, hunting for
truffles buried in briefs.” (internal quotation marks omitted)).

                                         7
          5. Sufficiency of the Evidence of Involvement in the Conspiracy

      Mahon and Timmons argue that the government presented insufficient

evidence that they were participants in the conspiracy and that the evidence

showed only their “mere presence” by their “association” with conspirators.

      Viewed in the light most favorable to the government, it presented the

following evidence pertinent to Mahon:

      •       Simpson testified that Mahon was present at a July 26 meeting at
              Alexander’s house that took place to discuss the home invasion.

      •       Agent Zayas testified that Mahon attended a July 27 meeting with
              him, along with Black, Alexander, Simpson and Marsh. The day
              before, Zayas had informed Simpson and Black to bring with them on
              July 27 any other individuals who would be participating in the
              robbery. When the group arrived, and only Black, Alexander and
              Simpson exited the vehicle and began speaking with Zayas about the
              robbery, Zayas asked Alexander to get the other two individuals,
              including Mahon, from the vehicle if they would be participating in
              the robbery, and Alexander did so. Zayas further testified that all of
              the meeting attendees were engaged in the discussion and that he
              observed Mahon nodding his head during the meeting.

      •       Simpson testified that Mahon was present at a July 27 meeting at
              Alexander’s house, along with Black, Simpson, Marsh and Alexander,
              that took place after the meeting with Agent Zayas to discuss the
              robbery.

      •       Simpson testified that at the July 27 meeting at Alexander’s house,
              Alexander assigned to Mahon the role of entering the stash house and
              carrying a firearm.




                                          8
       •      Agent Zayas testified that Mahon showed up on July 28, the date of
              the fictitious robbery, along with Timmons, Alexander and Black. He
              further testified that when the two vehicles with defendants followed
              him to the storage facility, Mahon got out of the vehicle and Zayas
              showed Mahon the unit in which the crew was to place Zayas’ portion
              of the drugs.

This evidence is sufficient for the jury to have reasonably found that Mahon was a

knowing participant in the conspiracy, and the government’s failure to provide

evidence of Mahon’s oral assent to the conspiracy does not undermine his

conviction. See United States v. Perlaza, 439 F.3d 1149, 1177 (9th Cir. 2006)

(“[O]nce the existence of a conspiracy is established, a defendant may be convicted

of knowing participation therein if the evidence establishes, beyond a reasonable

doubt, even a slight connection between the defendants and the conspiracy.”

(internal quotation marks omitted)); United States v. Herrera-Gonzalez, 263 F.3d

1092, 1095 (9th Cir. 2001) (“A connection to the conspiracy may be inferred from

circumstantial evidence.”); United States v. Esparza, 876 F.2d 1390, 1392 (9th Cir.

1989) (“Proof of the defendant’s connection to the conspiracy requires a showing

that the defendant knew of the existence of the conspiracy and acted with the intent

to further its goals.”).

       The government also presented sufficient evidence to support Timmons’

conspiracy conviction. Given the evidence that Timmons attended the July 27



                                         9
meeting at Alexander’s house at which the robbery was being discussed and that he

was present in the vehicle as Agent Zayas reiterated that there would be 50

kilograms of cocaine that would be split evenly among the group, a rational trier of

fact could reasonably conclude that Timmons had knowledge of the conspiracy.

Additionally, there was evidence that Timmons was assigned a role in the

conspiracy (as a driver), that he acted in a way consistent with that role (by driving

his vehicle on July 28) and that his vehicle contained the precise number of guns

corresponding to the number of guns that were assigned to the conspirators. This

evidence was sufficient for a rational trier of fact to conclude that Timmons acted

with an intent to further the conspiracy’s goals. See Esparza, 876 F.2d at 1392.

      Timmons’ argument that we should disregard Simpson’s testimony because

it was incredible, misleading, inconsistent, unsubstantiated and dishonest is

foreclosed by our precedent. Simpson’s testimony was not facially incredible or

unsubstantiated, and we may not resolve credibility determinations or factual

disputes in his favor. See United States v. Lopez, 803 F.2d 969, 973 (9th Cir.

1986).

     6. Sufficiency of the Evidence of Involvement in Weapons Possession

      We reject Mahon and Timmons’ argument that there was insufficient

evidence to support their convictions for aiding and abetting the possession of a


                                          10
firearm in furtherance of a drug trafficking offense. The government presented

sufficient evidence to support appellants’ convictions under the co-conspirator

(Pinkerton) liability jury instruction. The four firearms in Timmons’ vehicle –

following Alexander’s instruction that Alexander’s brother-in-law go get four

firearms and Alexander’s assignment of carrying firearms to four of the defendants

– supports a jury finding that at least one of the defendants (all of whom were

found to be members of the conspiracy) possessed firearms in furtherance of a drug

trafficking offense (the robbery of the stash house). Because Simpson testified that

Mahon and Timmons were each present on occasions when guns were discussed in

connection with the robbery, the evidence was also sufficient that the crime of

possession of a firearm fell within the scope of the conspiracy and was foreseeable

to Mahon and Timmons. See United States v. Bingham, 653 F.3d 983, 997 (9th

Cir. 2011) (listing elements of Pinkerton liability).

                   7. Constructive Amendment of Indictment

      Mahon argues that the conspiracy jury instruction constructively amended

the indictment. Mahon failed to object at trial that there was a constructive

amendment to the indictment, so we review for plain error. See United States v.

Choy, 309 F.3d 602, 607 (9th Cir. 2002).




                                          11
      a. The jury instructions did not constructively amend the indictment

because count one of the indictment charged defendants with conspiracy to possess

with intent to distribute cocaine, whereas the court instructed the jury that the

government must prove that “there was an agreement . . . to commit at least one

crime as charged in the indictment.” Taking the jury instructions as a whole as we

must, see Panther v. Hames, 991 F.2d 576, 581 (9th Cir. 1993), the district court’s

instructions made clear that the government was required to prove that the crime

agreed to was possession with intent to distribute cocaine.

      b. The district court did not plainly amend count one of the indictment

because the indictment charged defendants with “knowingly and intentionally”

conspiring to possess with intent to distribute cocaine whereas the jury instructions

required that defendants only “knowingly” conspired. Viewing the jury

instructions as a whole, we conclude that the district court fairly instructed the jury

that the mens rea required for conspiracy was “knowingly” and “intentionally.”

Additionally, even if the district court had plainly erred, Mahon does not argue or

explain how that error affected his substantial rights or seriously affected the

integrity of his trial. See United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir.

2008) (“Relief for plain error is available if there has been (1) error; (2) that was




                                          12
plain; (3) that affected substantial rights; and (4) that seriously affected the

fairness, integrity, or public reputation of the judicial proceedings.”).

                         8. May 4, 2010 Jury Admonition

        We reject Mahon’s argument that he is entitled to a new trial because the

district court failed to admonish the jury upon evening recess on May 4, 2010. On

that date, immediately before releasing the jury to begin its deliberations after

closing argument, the district court instructed the jury that it was under a

continuing admonition that it must abide by each day that it went home after

deliberating. That the district court thereafter recalled the jury to briefly mention a

minor evidentiary matter does not undermine the continuing admonition that was

imposed shortly before. Even if the district court had plainly erred, Mahon has not

established that any prejudice resulted from the error. See Cannel, 517 F.3d at

1176.

                                9. Evidentiary Issues

        a. Mahon and Timmons waived their argument regarding the admission of

an audio recording of a conversation between Timmons and Black when they were

arrested and placed into a police car by failing to make any argument or cite any

authority in support. See Milne, 165 F.3d at 736 n.6; United States v. Tisor, 96

F.3d 370, 376 (9th Cir. 1996). Even if this argument had not been waived, the


                                           13
district court did not abuse its discretion in admitting the recording, because the

unintelligible portions of the recording were not “so substantial that the recording

as a whole is untrustworthy.” United States v. Abonce-Barrera, 257 F.3d 959, 963

(9th Cir. 2001) (internal quotation marks omitted). Additionally, based on the

context in which the recording was introduced, statements made during the

recording and the other recordings that were played during trial, the jury could

reasonably determine which defendants were speaking on the recording.

      b. We reject Mahon and Timmons’ argument that the district court erred in

failing to order a mistrial after the government referred to a “transcript” during

closing argument contrary to the district court’s orders. During trial, the

defendants objected to the government’s statement but did not move for a mistrial.

The district court accepted the objection and provided a clear curative instruction

(as Timmons requested). In light of these curative actions, the district court did not

err, much less do so plainly, in failing to sua sponte declare a mistrial. See United

States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008) (“[W]e review the district

court’s failure to sua sponte declare a mistrial for plain error.”).

      c. Mahon and Timmons waived their argument regarding the denial of

testimony impeaching the credibility of Agent Zayas by failing to make any

argument in support, or even make clear on what legal basis they now challenge


                                           14
the district court’s ruling. See United States v. Williamson, 439 F.3d 1125, 1138

(9th Cir. 2006) (“‘We will not manufacture arguments for an appellant’ who has

failed ‘to present . . . specific, cogent argument[s] for [the court’s] consideration,’

especially where ‘a host of other issues are presented for review.’” (alterations in

original) (quoting Entm’t Research Grp., 122 F.3d at 1217)).

      d. Mahon and Timmons waived their argument regarding the district court’s

denial of a mistrial after Agent Zayas testified about the dangerousness of using an

actual, rather than hypothetical, stash house in a reverse sting operation. They

failed to make any argument in support, or even make clear on what legal basis

they now challenge the district court’s ruling. See id.

      e. Mahon and Timmons waived their argument regarding the admission of

testimony by Simpson that Timmons was an “inmate” by failing to make any

argument or cite any authority in support. See Milne, 165 F.3d at 736 n.6; Tisor,

96 F.3d at 376.

      f. We reject Mahon and Timmons’ argument that the district court erred in

denying a motion for mistrial after the government stated during closing argument

that the defendants, who were not charged with murder, were “prepared to kill” on

the date of the robbery. Unlike United States v. Rodrigues, 159 F.3d 439 (9th Cir.

1998), the government did not, through its comments, mislead the jury on the law


                                           15
or effectively slander defense counsel. This case is also distinguishable from

United States v. Wilson, 135 F.3d 291 (4th Cir. 1998), because here there was both

a basis in the evidence for the prosecutor’s statement, and it was relevant to the

government’s burden in proving defendants’ predisposition. The district court

therefore did not abuse its discretion in denying a mistrial following the

government’s statement. See United States v. Allen, 341 F.3d 870, 891 (9th Cir.

2003) (stating that denials of motions for mistrial are reviewed for abuse of

discretion).

      g. We reject Mahon and Timmons’ argument that the district court erred in

admitting testimony by Agent Atencio that he observed a struggle between

Timmons and a SWAT team member who was attempting to arrest Timmons

because the statement was unsupported by evidence, irrelevant and prejudicial.

The statement was supported by evidence because Agent Atencio was a percipient

witness, and his testimony is evidence. It was relevant because it was elicited by

Timmons’ counsel in response to questions regarding what Atencio actually

witnessed in terms of Timmons being taken into custody, and for that reason also

was not unduly prejudicial. Finally, defendants did not object to this statement

during the trial, and the district court did not plainly err by not striking it sua

sponte.


                                           16
      h. We reject Mahon’s argument under Federal Rules of Evidence 401, 403

and 404(b) that the district court erred in admitting testimony by Simpson

regarding his knowledge about individuals who possessed cocaine. The statement

was relevant under Rule 401 to the government’s burden of showing

predisposition. It was not offered as character evidence, nor does it refer to

evidence of prior bad acts, and thus Rule 404(b) is not relevant. Finally, it was not

unduly prejudicial under Rule 403 given the central role of defendants’ entrapment

defense in this case.

         10. Application of Sentencing Guidelines to Drug Trafficking

      We reject Black’s argument that the district court abused its discretion in

sentencing him based upon the Guidelines applicable to drug trafficking rather than

those applicable to robbery because his offense factually resembled a robbery more

than drug trafficking. The district court’s adherence to U.S.S.G. § 1B1.2 was not

an abuse of discretion.




                                         17
               11. Application of Statutory Minimum Sentencing

      Mahon’s argument that a statutory minimum sentence should not bar the

application of a lower sentence if appropriate under the sentencing factors

articulated in 18 U.S.C. § 3553(a) is foreclosed by United States v. Wipf, 620 F.3d

1168, 1170-71 (9th Cir. 2010).

      AFFIRMED.




                                         18
