                                                                             FILED
                           NOT FOR PUBLICATION                                DEC 02 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 13-30171

              Plaintiff - Appellee,             D.C. No. 2:11-cr-00383-RSL-1

  v.
                                                MEMORANDUM*
JACK PERSHING SEXTON,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                       No. 13-30172

              Plaintiff - Appellee,             D.C. No. 2:11-cr-00383-RSL-2

  v.

RONALD CLAUDE KETTELLS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert S. Lasnik, District Judge, Presiding

                    Argued and Submitted November 17, 2014
                               Portland, Oregon

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.

      Jack Sexton and Ronald Kettells were convicted of three counts of armed bank

robbery, three counts of using a firearm during and in relation to a crime of violence,

and one count of conspiracy. On appeal, they challenge the denial of their motions

to sever counts, to suppress evidence, and to exclude evidence of drug use, and the

district court’s refusal to instruct the jury on the effect of drug use on witness

credibility. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      1. Regardless of whether it is viewed as invoking Rule 8 or Rule 14 of the

Federal Rules of Criminal Procedure, the motion to sever was properly denied.

      a. The indictment alleges that the substantive counts were committed in

furtherance of a single, overarching conspiracy. The substantive counts were

therefore part of a “common scheme or plan” for joinder purposes. Fed. R. Crim. P.

8(a). The defendants do not challenge the sufficiency of the evidence supporting the

guilty verdict on the conspiracy count. Thus, the conspiracy count was not added in

bad faith. See United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir. 1982).

      b. The defendants have not shown “‘clear,’ ‘manifest,’ or ‘undue’ prejudice

from the joint trial.” United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir. 1980)

(noting that establishing prejudice under Rule 14 requires more than a showing that

separate trials would have yielded “a better chance for acquittal”).


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      2. The searches conducted on the property where the defendants lived were

within the scope of valid warrants.

      a. The first warrant satisfied the particularity requirement even though the

address on it stated the name of the wrong town. The address was otherwise correct,

and the warrant listed other features of the property that permitted the searching

officers to confirm they were at the right location. Moreover, the property was under

surveillance when the defendants arrived in a car identified as the getaway vehicle

from a bank robbery, and the defendants admitted that they lived at the property.

There was therefore no “reasonable probability . . . that the officers [would]

mistakenly search another premise.” United States v. Mann, 389 F.3d 869, 876 (9th

Cir. 2004).

      b. The district court did not clearly err in determining that any omissions from

the warrant application were at most negligent. See United States v. Castillo, 866 F.2d

1071, 1078 (9th Cir. 1988). Moreover, given the strength of the other evidence in the

application, inclusion of the omitted information would not have undermined probable

cause. See United States v. Reeves, 210 F.3d 1041, 1046 (9th Cir. 2000).

      c. The first warrant authorized the search of the property where the defendants

lived, and the abandoned Chevrolet Cheyenne on the property was within the scope

of that authorization regardless of whether it is viewed as a vehicle or a structure. See


                                           3
United States v. Cannon, 264 F.3d 875, 880 (9th Cir. 2001) (“[T]he Fourth

Amendment is not violated by a search of the grounds or outbuildings within a

residence’s curtilage where a warrant authorizes a search of the residence.”); United

States v. Duque, 62 F.3d 1146, 1151 (9th Cir. 1995) (“[A] search warrant authorizing

a search of a particularly described premises may permit the search of vehicles owned

or controlled by the owner of, and found on, the premises.”).

      d. It strains common sense to read the phrase, “to include all travel trailers and

buildings”—which appears after the address on the warrant—as excluding the

Cheyenne from the scope of the warrant. See United States v. Traylor, 656 F.2d 1326,

1331 (9th Cir. 1981).

      e. The defendants make no arguments relating specifically to the second

warrant.

      3. The district court did not abuse its discretion by allowing testimony

regarding the defendants’ drug use.       Evidence of a defendant’s drug habit is

admissible to prove motive to commit a bank robbery. See United States v. Miranda,

986 F.2d 1283, 1285 (9th Cir. 1993) (collecting cases). Nor did the district court err

by failing to explicitly mention the Federal Rule of Evidence 403 balancing

requirement in admitting this evidence. Rule 403 is satisfied if, as here, it appears

from the record as a whole that the court was aware of its requirements and adequately


                                          4
considered the question of prejudice. United States v. Verduzco, 373 F.3d 1022, 1029

n.2 (9th Cir. 2004).

      4. A “witness using drugs” instruction was not required because the drug

addiction of the testifying witness was disputed, defense counsel cross-examined the

witness on this subject, and the court gave a general instruction on witness credibility.

See United States v. Vgeri, 51 F.3d 876, 881 (9th Cir. 1995).

      AFFIRMED.




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