                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                      JAN 7 2019
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA                         Nos. 17-10349, 17-10351

            Plaintiff-Appellee,                  D.C. No.
                                                 3:15-cr-00134-VC
     v.

JUVENAL MONDRAGON and                            MEMORANDUM*
LENY ROMERO MOYA

            Defendants-Appellants.

                     Appeal from the United States District Court
                       for the Northern District of California
                      Vince Chhabria, District Judge, Presiding

                      Argued and Submitted December 19, 2018
                              San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and BLOCK,** District Judge.

          Defendants Juvenal Mondragon and Leny Moya appeal their convictions and

sentences for possession with intent to distribute 500 grams or more of

methamphetamine under 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). A jury found


*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
      The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
the defendants guilty after a joint trial. They argue on appeal that the district court

violated their rights in multiple ways during the trial. We affirm.

      First, the district court did not abuse its discretion by denying the

defendants’ motions to sever their trials. See United States v. Throckmorton, 87

F.3d 1069, 1071 (9th Cir. 1996) (“We review for abuse of discretion a district

court’s decision denying a motion to sever trials.”). The defendants’ defenses were

not necessarily mutually exclusive. The jury could have found that there was

insufficient evidence to prove that either of them knew what was in the Target bag,

thereby acquitting them both. See United States v. Tootick, 952 F.2d 1078, 1081

(9th Cir. 1991) (“Mutually exclusive defenses are said to exist when acquittal of

one codefendant would necessarily call for the conviction of the other.”). Further,

the facts in Zafiro v. United States, 506 U.S. 534, 536 (1993) are indistinguishable

from those here, confirming that the district court here similarly did not abuse its

discretion.

      Second, the district court did not violate Mondragon’s Confrontation Clause

rights by precluding his lawyer from questioning Moya about the 10-year

mandatory-minimum sentence he faced. In determining whether a defendant has

suffered a Confrontation Clause violation when the judge limits his lawyer’s

inquiry into the sentencing exposure of an adverse witness, “the reviewing court

must inquire whether: (1) the excluded evidence was relevant; (2) there were other


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legitimate interests outweighing the defendant’s interest in presenting the evidence;

and (3) the exclusion of evidence left the jury with sufficient information to assess

the credibility of the witness.” United States v. Beardslee, 197 F.3d 378, 383 (9th

Cir. 1999) (citation omitted), opinion amended on denial of reh’g, 204 F.3d 983

(9th Cir. 2000). A district court’s decision to limit the scope of cross-examination

is reviewed for abuse of discretion. United States v. Larson, 495 F.3d 1094, 1102

(9th Cir. 2007) (en banc).

      Here, the district court did not abuse its discretion in concluding that, on

balance, permitting Mondragon’s lawyer to question Moya about the “serious

federal conviction” he faced and the consequences it would have in his life

sufficiently protected his Confrontation Clause rights. The jury had enough

information about the magnitude of the punishment to assess Moya’s credibility:

the difference in magnitude between a 10-year mandatory-minimum sentence and

an undefined prison sentence for a serious federal drug crime does not amount to a

Confrontation Clause violation, particularly where the jury was already aware that,

as a codefendant also standing trial, Moya had a strong motive to lie to avoid

conviction. See Larson, 495 F.3d at 1107 (holding that the defendant suffered a

Confrontation Clause violation when the magnitude of a witness’s incentive to

testify was not adequately conveyed to the jury).




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      Third, Mondragon did not suffer a violation of his Fifth Amendment right to

remain silent when Moya’s lawyer stated that the “only person that came on this

witness stand to tell you whether he did or did not possess it was Leny Moya

himself. Nobody else said that he did.” See United States v. Lopez, 500 F.3d 840,

844 (9th Cir. 2007) (“We review de novo whether references to a defendant’s

silence violate his Fifth Amendment privilege against self-incrimination.” (citation

omitted)). In context, it was clear that Moya’s lawyer was not highlighting

Mondragon’s silence but, instead, contrasting Moya’s testimony with the

government’s lack of testimony or other direct evidence demonstrating that Moya

knew about the methamphetamine.

      Lastly, the district court did not err by prohibiting Moya’s lawyer from

highlighting Moya’s willingness to testify in contrast to Mondragon’s silence.

Moya has not demonstrated that his defense probably would have benefited from

the ability to comment on Mondragon’s silence. See United States v. De La Cruz

Bellinger, 422 F.2d 723, 727 (9th Cir. 1970) (“Unless a defendant can show that

his defense probably would have benefited from commenting on a co-defendant’s

refusal to testify, denial of the motion to sever is not prejudicial.”).

      AFFIRMED.




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