                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 13 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50406

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-00569-GHK-1
 v.

BYRON DREDD,                                    MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    George H. King, District Judge, Presiding

                      Argued and Submitted February 8, 2018
                               Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and BATAILLON,**
District Judge.

      Byron Dredd, a former Los Angeles County Sheriff’s Department (“LASD”)

Deputy, appeals the denial of his motion to dismiss a charge of making false

statements to the Federal Bureau of Investigation (“FBI”) in violation of 18 U.S.C.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
§ 1001 (“Count Three”). After a trial on offenses related to an alleged cover-up of

an unlawful use of force incident, a jury acquitted Dredd of conspiracy against

rights, in violation of 18 U.S.C. § 241 (“Count One”), and falsification of records,

in violation of 18 U.S.C. § 1519 (“Count Two”). The jury deadlocked on the false

statements charge and the district court declared a mistrial. Dredd asserts that the

Fifth Amendment’s Double Jeopardy clause prohibits his retrial on Count Three.

We have jurisdiction over this appeal under 28 U.S.C. § 1291 and affirm.1

      We review the district court's ruling de novo. United States v. Castillo–

Basa, 483 F.3d 890, 895 (9th Cir. 2007). Retrial following a hung jury does not

constitute double jeopardy, Richardson v. United States, 468 U.S. 317, 324-26

(1984), but the issue preclusion component of the Double Jeopardy clause will

apply and a jury’s acquittal will have preclusive force if “the same jury in the same

proceeding fails to reach a verdict on a different count turning on the same critical

issue[.]” Bravo-Fernandez v. United States, 137 S. Ct. 352, 357 (2016). A jury

verdict that “necessarily decide[s]” a critical issue of ultimate fact in a defendant’s

favor “protects [the defendant] from prosecution for any charge for which that fact

is an essential element.” Yeager v. United States, 557 U.S. 110, 123 (2009). The

burden is on the defendant to demonstrate that the issue he seeks to shield from

1
 On February 7, 2017, we found the district court’s denial of Dredd’s motion to
dismiss was an appealable order. See United States v. Cejas, 817 F.2d 595, 596
(9th Cir. 1987).


                                           2
reconsideration was actually decided by a prior jury's verdict of acquittal. Bravo-

Fernandez, 137 S. Ct. at 359.

      Given the prosecution's evidence, the parties’ closing arguments, and the

jury instructions, Dredd has failed to meet his burden to demonstrate that the issue

he seeks to foreclose from relitigation—his knowledge of the falsity of the

statements he made to the FBI—was actually decided in his trial. After a realistic

examination of the record, we agree with the district court’s conclusion that a jury

could have rationally determined that Dredd did not have knowledge of the

statements’ falsity in 2011. We find no error in the district court's determination

that the elements of the Count Three false-statement charge were not “necessarily

decided” in Dredd’s favor when the jury acquitted him on the Count Two

falsification-of-records charge. See Yeager, 557 U.S. at 123.

      Further, collateral estoppel does not bar retrial if the jury could have

realistically and rationally acquitted Dredd on a different ground. See Ashe v.

Swenson, 397 U.S. 436, 444 (1970). The jury may have acquitted Dredd of Count

2 because it did not believe beyond a reasonable doubt that he intended to obstruct

a federal investigation, which was an element of the falsification of records charge.

See 18 U.S.C. § 1519. Though the district court did not reach this issue, “[w]e may

affirm for any reason supported by the record.” Travelers Prop. Cas. Co. of Am. v.

ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir. 2008).


                                          3
       Finally, even if we have jurisdiction to reach Dredd’s claim that a retrial on

Count Three would improperly constructively amend the indictment, we decline to

do so because Dredd can raise his arguments in the district court once the

government initiates proceedings to retry him.

      AFFIRMED.




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