                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 05 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50334

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00825-R-1

  v.
                                                 MEMORANDUM *
ALBERT JUAN ORTEGA,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-50401

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00825-R-2

  v.

MICHAEL MAGANA, AKA Mike,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                        Argued and Submitted May 7, 2013
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW and MURGUIA, Circuit Judges, and RESTANI, Judge.**

      Albert Ortega and Michael Magana appeal their convictions for kidnapping

and conspiracy to kidnap, in violation of 18 U.S.C. §§ 1201(a) and 1201(c). Albert

Ortega also appeals his convictions for possession with intent to distribute

methamphetamine and conspiracy to possess with intent to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 841(b); possession of a

firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924; and

possession of a firearm during a crime of violence, also in violation of 18 U.S.C. §

924. Michael Magana also appeals his sentence of 300 months imprisonment and

five years supervised release. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

                                      I. Ortega

      A.     We decline to reach Ortega’s claim that he received ineffective

assistance of counsel as a result of his counsel’s conflict of interest. We usually

decline to reach ineffectiveness challenges on direct appeal, “because the claim

cannot be advanced without development of facts outside the record. The same

approach has been taken for claims of ineffectiveness due to a conflict of interest.”


       **
             The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.

                                           2
United States v. Hanoum, 33 F.3d 1128, 1131 (9th Cir. 1994); see also United

States v. Wagner, 834 F.2d 1474, 1483 (9th Cir. 1987) (“The record before us

illustrates precisely why ineffective assistance claims cannot generally be

evaluated on direct appeal.”). The record demonstrates that Ortega’s trial counsel

simultaneously represented Ortega and an unindicted coconspirator and that

Ortega’s oral waiver of this conflict was deficient. See Lockhart v. Terhune, 250

F.3d 1223, 1232-33 (9th Cir. 2001) (explaining that, for a defendant to “knowingly

and intelligently” waive his right to conflict-free counsel, he must be informed “of

the specific ramifications of his waiver”). However, the record is insufficiently

developed at this stage to determine whether this conflict made it “likely” that

there was “some effect on [Ortega’s counsel’s] handling of particular aspects of the

trial.” United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992) (quoting

Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir. 1988)). Ortega remains free to raise

these claims in a collateral attack on his conviction under 28 U.S.C. § 2255. See

Hanoum, 33 F.3d at 1131 (“The customary procedure in this Circuit for

challenging the effectiveness of defense counsel in a federal criminal trial is by

collateral attack on the conviction under 28 U.S.C. § 2255, and this Court has been

chary of analyzing insufficiency of counsel claims on direct appeal.”).




                                           3
       B.     The district court did not abuse its discretion when it refused to grant

Ortega’s motions for a continuance on the eve and morning of trial. “[B]road

discretion must be granted trial courts on matters of continuances.” United States

v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999) (quoting Morris v. Slappy, 461

U.S. 1, 11 (1983)). The district court, already having granted multiple

continuances, also granted Ortega’s motion to substitute his counsel less than a

month prior to trial on the condition that the substitution not delay the trial. Given

this, the district court acted well within its discretion when it refused to grant an

additional continuance on the ground that Ortega’s counsel felt unprepared for

trial. See Garrett, 179 F.3d at 1147 (concluding that a district court had not abused

its discretion when denying a continuance, despite failing to adequately explain its

reasons for doing so, when the defendant moved to replace his counsel shortly

before trial). However, even if the district court had abused its discretion by

refusing to continue the trial, any error would have been harmless in light of the

overwhelming evidence of Ortega’s guilt produced at trial. See United States v.

Kloehn, 620 F.3d 1122, 1130 (9th Cir. 2010) (“An arbitrary denial of a continuance

is subject to the harmless error test.”).

                                       II. Magana




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      A.     The district court did not err by refusing to suppress the kidnapping

evidence that was intercepted pursuant to the wiretap authorization. See United

States v. Lynch, 367 F.3d 1148, 1159 (9th Cir. 2004). While kidnapping was not

listed as one of the target offenses in the wiretap authorization, the kidnapping

evidence does not fall within 18 U.S.C. § 2517(5) as evidence of “offenses other

than those specified in the order of authorization” because the kidnapping “arose

out of and was closely related to” the targeted narcotics and money laundering

offenses. United States v. Homick, 964 F.2d 899, 904 (9th Cir. 1992).

Accordingly, it was not necessary for the prosecution to seek authorization for the

interception or disclosure of the kidnapping evidence under § 2517(5).1 See id.

      B.     The district court did not err by joining for trial the conspiracy and

kidnapping charges against Ortega and Magana with the conspiracy, narcotics, and

firearms charges against Ortega under Federal Rule of Criminal Procedure 8(b).

See United States v. Vasquez-Velasco, 15 F.3d 833, 843 (9th Cir. 1994). Joinder

was proper because the kidnapping was performed to settle a drug debt owed to

Ortega, and thus the charges were “logically related.” United States v. Sarkisian,

197 F.3d 966, 976 (9th Cir. 1999) (explaining that joinder is appropriate where the


      1
        We therefore need not reach the district court’s alternative basis for its
ruling—that another district court judge actually authorized the use of the wiretap
kidnapping evidence.

                                           5
charges are “logically related,” and that Rule 8(b) “is construed liberally in favor of

joinder”). Whether Magana participated in or even was aware of all of the offenses

that were joined under Rule 8(b) does not change this analysis. See United States

v. Golb, 69 F.3d 1417, 1426 (9th Cir. 1995) (holding that joinder of multiple

charges was appropriate where one defendant was unaware of some of the offense

conduct because the offenses were “[o]bviously” related to one another).

      Nor did the district court abuse its discretion when it denied Magana’s

motion to sever his and Ortega’s trials. See United States v. Sullivan, 522 F.3d

967, 981 (9th Cir. 2008). Magana argues that he presented a sufficiently

antagonistic defense at trial to justify severance—that it was Ortega acting alone

who beat Vince with a baseball bat. However, battery is not an element of

kidnapping under 18 U.S.C. § 1201, and both Ortega and Magana could be found

guilty of kidnapping Vince regardless of who had actually beaten him.

Accordingly, Magana’s defense was not sufficiently antagonistic to merit

severance. See United States v. Hanley, 190 F.3d 1017, 1028 (9th Cir. 1999)

(superseded by statute on other grounds) (“A criminal defendant is entitled to a

separate trial on the ground of mutually antagonistic defenses only if the core of

the co-defendant’s defense is so irreconcilable with the core of his own defense

that the acceptance of the co-defendant’s theory by the jury precludes acquittal of


                                           6
the defendant.” (internal quotations omitted)). Moreover, the district court’s

limiting instruction cured any potential spillover effect from the evidence of

Ortega’s drug charges to the kidnapping charges against Magana. See Sullivan,

522 F.3d at 981-82.

      C.     The district court did not abuse its discretion when it refused to

provide the jury with a written copy of the jury instructions. See United States v.

Jones, 353 F.3d 816, 818 (9th Cir. 2003). “While providing the jury with written

instructions has become increasingly common in the past decades, it is not

automatically required.” Id. at 819. The district court’s decision, while somewhat

perfunctory, was sufficiently “well-considered and appropriate, given the relative

simplicity of the case, the court’s observations of the jurors’ understanding, and

[the defendants’] lack of objection to the content of the oral instructions.” Id.

      D.     Viewing the evidence presented at trial in the light most favorable to

the prosecution, a “rational juror could have found beyond a reasonable doubt” that

Magana was guilty of the crimes as charged. United States v. Bennett, 621 F.3d

1131, 1133 (9th Cir. 2010). The prosecution presented overwhelming evidence of

Magana’s guilt, including wiretap transcripts which chronicled Vince’s

kidnapping, physical evidence, and witness testimony by Vince, Abby, and the




                                           7
officers. There is no basis to conclude on this record that there was insufficient

evidence to support Magana’s conviction.

      E.     The district court did not abuse its discretion when it sentenced

Magana to 300 months imprisonment followed by five years of supervised release

and 20 hours of weekly community service. See Gall v. United States, 552 U.S.

38, 49 (2007). Magana does not point to any procedural or substantive error which

would merit reversal and the district court adequately considered the 18 U.S.C. §

3553(a) factors during sentencing. See United States v. Valencia–Barragan, 608

F.3d 1103, 1108 (9th Cir. 2010). Magana’s sentence represented a downward

departure from the advisory Guidelines range of 360 months to life, and in light of

the totality of the circumstances, this below-Guidelines range was substantively

reasonable. See Gall, 552 U.S. at 51.

                    III. Evidentiary Rulings and Other Issues

      A.     Ortega and Magana were given the opportunity to fully and

effectively cross examine the prosecution’s witnesses, and the district court did not

abuse its discretion when it limited further questioning. See United States v. Long,

706 F.2d 1044, 1054 (9th Cir. 1983) (explaining that district courts have “wide

discretion in determining whether evidence is supported by proper foundation,




                                          8
whether it is relevant and whether its probative value substantially outweighs any

danger of unfair prejudice”).

      B.     Regardless of whether the impeachment testimony against Tina

Ramirez was admissible to prove bias, see United States v. Abel, 469 U.S. 45

(1984), Magana and Ortega failed to object to this testimony under either Federal

Rule of Evidence 403 or 608, and its admission does not amount to plain error.

See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990) (explaining

that plain error review applies where a party fails to “timely object and state the

specific grounds for his objection”).

      C.     Agent Gutierrez’s testimony concerning the criminal investigation and

wiretaps in this case was not overly extensive as to the application and

authorization of the wiretaps and investigation and thus did not amount to

vouching. See United States v. Brooks, 508 F.3d 1205, 1210-11 (9th Cir. 2007)

(concluding that extensive and unnecessarily detailed testimony concerning the

wiretap application process by government agents constituted impermissible

vouching). Moreoever, even if Agent Gutierrez’s testimony had constituted

vouching, neither defendant objected on these grounds during trial, and the district

court’s error in allowing the testimony, if any, was not plain. See id. at 1211




                                           9
(concluding that admission of impermissible vouching testimony did not constitute

plain error in part due to the strength of the case against the defendant).

      D.     Magana and Ortega also failed to object to Agent Gutierrez’s

testimony as to the meaning of phrases intercepted by the wiretap. They now

argue that this testimony was improper opinion testimony under Federal Rule of

Evidence Rule 701. Even if the district court erred by permitting Agent Gutierrez

to give expert testimony without first being qualified as an expert witness, see

United States v. Greeman, 498 F.3d 893, 904 (9th Cir. 2007), this error does not

rise to the level of plain error. See Gomez-Norena, 908 F.2d at 500.

      AFFIRMED.




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