                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 04 2011

                                                                        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. 08-10539

              Plaintiff - Appellee,              D.C. No. 1:06-cr-00342-OWW

  v.
                                                 MEMORANDUM *
RICARDO RUIZ MONTES,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 08-10559

              Plaintiff - Appellee,              D.C. No. 1:06-vt-00342-OWW-1

  v.

LUKE SCARMAZZO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                      Argued and Submitted August 31, 2010
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.

      Because the parties are familiar with the facts of the case, we do not repeat

them here. In a companion opinion filed today, we affirm the trial court’s ruling

addressing the issue of alleged jury misconduct. As to the following issues, we

also affirm the judgment of the district court.

      The district court did not plainly err by failing to sua sponte dismiss

Appellants’ indictment as a violation of the Tenth Amendment. See Raich v.

Gonzales, 500 F.3d 850, 867 (9th Cir. 2007) (citing Gonzales v. Raich, 545 U.S. 1,

32–33 (2005)).

      The district court’s in limine rulings were proper because: (1) “medical

necessity is not a defense to manufacturing and distributing marijuana,” United

States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 494 (2001); (2) specific

knowledge of illegality was not an element of the crimes with which Appellants

were charged, see 21 U.S.C. § 841(a)(1), and therefore a good faith defense did not

apply, see Cheek v. United States, 498 U.S. 192, 199 (1991); and (3) Appellants

proffered no evidence that they reasonably relied on the advice of “a federal

government official empowered to render the claimed erroneous advice, or . . . an

authorized agent of the federal government,” United States v. Brebner, 951 F.2d

1017, 1027 (9th Cir. 1991) (citation omitted). Furthermore, these rulings did not


                                           2
deprive Appellants of any recognized liberty interest. See Washington v.

Glucksberg, 521 U.S. 702, 720–21 (1997).

      We see no abuse of discretion in the district court’s admission of Appellant

Scarmazzo’s self-aggrandizing music video. See United States v. Verduzco, 373

F.3d 1022, 1029 n.2 (9th Cir. 2004) (“As long as it appears from the record as a

whole that the trial judge adequately weighed the probative value and prejudicial

effect of proffered evidence before its admission, we conclude that the demands of

Rule 403 have been met.” (quoting United States v. Sangrey, 586 F.2d 1312, 1315

(9th Cir. 1978)).

      The district court’s jury instruction requiring that all jurors agree on which

offenses were committed by each defendant complied with Richardson v. United

States, 526 U.S. 813, 815 (1999). “A jury is presumed to follow its instructions.”

Weeks v. Angelone, 528 U.S. 225, 234 (2000). As a result, the jury’s guilty verdict

“necessarily means that all twelve jurors found that [Appellants] committed at least

three predicate felonies.” United States v. Montalvo, 331 F.3d 1052, 1059 (9th

Cir. 2003). A special verdict form was unnecessary. In addition, the district court

identified several counts included in the indictment, and on which the jury returned

verdicts of guilty, that qualified as federal felony narcotic offenses. No further

definition of that term was needed.


                                           3
      Relying on the overwhelming evidence of guilt at trial, and construing that

evidence in the light most favorable to the prosecution, a rational fact finder could

find Appellants guilty of operating a continuing criminal enterprise in violation of

21 U.S.C. § 848, and possessing marijuana with intent to distribute in violation of

21 U.S.C. § 841. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

      Inconsistent jury verdicts are not a cognizable basis for reversal. United

States v. Powell, 469 U.S. 57, 65 (1984).

      On this record, there is no evidence of vindictive prosecution. What charges

to bring is a decision that lies squarely within a prosecutor’s discretion, United

States v. Batchelder, 442 U.S. 114, 123 (1979), and Appellant Montes did not

make a prima facie case of prosecutorial vindictiveness, see United States v. Lopez,

474 F.3d 1208, 1211 (2007).

      Nor did Appellant Montes show that his prosecution deprived him of equal

protection. The guarantee of equal protection prohibits selective enforcement

based upon an impermissible classification. Batchelder, 442 U.S. at 125 n.9.

Montes cannot prevail on a discriminatory prosecution claim because he did not

demonstrate that his prosecution “was based on an impermissible ground such as

race, religion or his exercise of his first amendment right to free speech.” United

States v. Scott, 521 F.2d 1188, 1195 (9th Cir. 1975).


                                            4
      Appellant Montes was sentenced to the statutory minimum of twenty years.

His assertions to the contrary are rejected. Appellant Scarmazzo was sentenced to

just under twenty-two years. Appellants’ sentences are not grossly

disproportionate to their crimes and are, therefore, not unconstitutional. See Hutto

v. Davis, 454 U.S. 370, 374 (1982); United States v. Meiners, 485 F.3d 1211, 1213

(9th Cir. 2007).

      AFFIRMED.




                                          5
