                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 01 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 13-50445

              Plaintiff - Appellee,              D.C. No. 8:11-cr-00121-AG-1

 v.
                                                 MEMORANDUM*
AARON SCOTT VIGIL,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50630

              Plaintiff - Appellee,              D.C. No. 8:11-cr-00121-AG-2

 v.

LAWRENCE ANTHONY WITSOE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                     Argued and Submitted November 2, 2015
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and GOULD, Circuit Judges and CHRISTENSEN,** Chief
District Judge.

      Defendants Vigil and Witsoe appeal from their bribery-related convictions.

We affirm.

      It is not clear that the government committed prosecutorial misconduct when

it referred to Witsoe’s incriminating statements as a “confession” during closing

argument. See United States v. Scott, 267 F.3d 729, 742 (7th Cir. 2001); United

States v. Goodlow, 105 F.3d 1203, 1207 (8th Cir. 1997). But see United States v.

Morsley, 64 F.3d 907, 913 (4th Cir. 1995). Although Witsoe did not specifically

use the word “bribe,” his statements were nonetheless incriminating, and

prosecutors are free “to ask the jury to draw inferences from the evidence that the

prosecutor believes in good faith might be true.” United States v. Reyes, 660 F.3d

454, 462 (9th Cir. 2011) (quoting United States v. Blueford, 312 F.3d 962, 968 (9th

Cir. 2002)). Even if the government’s conduct was improper, the defendants have

failed to show that the “misconduct materially affected the fairness of the trial” in

light of the brevity of the government’s statements and the district court’s specific




       **
             The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.

                                          -2-
curative instruction. United States v. Cabrera, 201 F.3d 1243, 1246 (9th Cir.

2000) (citation omitted).

      The government did not breach any so-called “Bruton stipulation” because

no stipulation existed. The email discussion between the prosecutor and defense

counsel was merely an exchange about the possibility of a stipulation. The parties

never subsequently consummated an actual agreement. While defense counsel did

refer to the Bruton memorandum as “what’s been stipulated to” in front of the

district court, the prosecutor made clear during the same colloquy that he had a

different understanding of the meaning and scope of his Bruton obligations.

      No Bruton violation occurred. See Bruton v. United States, 391 U.S. 123

(1968). Agent Murray’s statements did not facially refer to Vitsoe or any other

third party, and any incrimination of Vigil was merely inferential. See Richardson

v. Marsh, 481 U.S. 200, 209–11 (1987); cf. United States v. Mayfield, 189 F.3d

895, 990 (9th Cir. 1999) (finding Bruton violation when the confession stated that

the codefendant had sold drugs for “an individual”).

      We find no Brady violations. See Brady v. Maryland, 373 U.S. 83 (1963).

We agree with the defense that the reason for the dismissal of Gillis’s misdemanor

charges was favorable and that the government did not reveal it. The defense

failed, however, to show a reasonable probability of a different outcome had this


                                         -3-
information been disclosed. Kyles v. Whitley, 514 U.S. 419, 433 (1995).

Notwithstanding the government’s failure to disclose the information, the jury

learned the essential substance of it through both of the defendants’ opening

statements and through Deputy District Attorney Hess’s testimony.

      There was also no Brady violation with respect to Gillis’s medical

conditions. Defense counsel appears to have known before trial that Gillis suffered

from epilepsy and that he used OxyContin. To the extent defense counsel may not

have known all of the information regarding Gillis’s medical conditions, the

defendants have failed to show materiality. The government had a strong case.

Witsoe essentially explained the bribery scheme to Gillis in the undercover

recordings, and the government had an extensive paper trail showing the transfer of

money from Witsoe to Vigil. A few questions about Gillis’s medical conditions

would not likely have changed the outcome.

      Finally, there was no Brady violation with respect to the Teleconference

Notes and Timeline. Even if the government’s claims that it took absolutely no

notes during any of its multiple interviews with Gillis was unusual, the defendant

bore the “initial burden of producing some evidence” that the government failed to

disclose favorable information in its possession. United States v. Price, 566 F.3d

900, 910 (9th Cir. 2009). The defense has failed to show that the Teleconference


                                         -4-
Notes or Timeline contained any favorable information, let alone information that

created a reasonable probability of an acquittal.

      The government’s destruction of the Teleconference Notes and Timeline did

not violate the Jencks Act. 18 U.S.C. § 3500. The district court correctly found

that the documents were not “statements” within the meaning of the Act. Although

Gillis does appear to have “made” the Timeline, there is no evidence that he

“signed or otherwise adopted or approved” either the Teleconference Notes or

Timeline. 18 U.S.C. § 3500(e)(1); see also United States v. Reed, 575 F.3d 900,

921 (9th Cir. 2009) (holding that there was no Jencks Act violation when a

government agent “had taken handwritten notes of interviews, converted them into

a typed report, and then destroyed the original notes” because there was no

evidence that the notes were “adopted or approved by any of the witnesses”).

      The district court did not abuse its discretion in its response to Jury Note 2.

The district court’s original instructions were not misleading, unresponsive,

incorrect, or ambiguous, and thus the district court did not err by simply referring

the jury back to the entire instructions. Arizona v. Johnson, 351 F.3d 988, 995 (9th

Cir. 2003).

      Finally, the district court did not violate the defendants’ Confrontation

Clause rights by limiting defense counsel’s cross-examination of Gillis regarding


                                          -5-
inconsistencies in his statements about being “threatened” and his willingness to

distribute OxyContin to Witsoe. The district court correctly determined that there

were legitimate interests — specifically the interests contained in Federal Rules of

Evidence 403 and 404 — outweighing the defendants’ need to present the

evidence. United States v. Larson, 495 F.3d 1094, 1103 (9th Cir. 2007) (en banc).

      AFFIRMED.




                                         -6-
