                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 16 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50081

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00783-JHN-3

  v.
                                                 MEMORANDUM*
GALVIN GIBSON,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50090

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00783-JHN-1

  v.

VAGAN ADZHEMYAN,

              Defendant - Appellant.


                   Appeals from the United States District Court
                       for the Central District of California
                  Jacqueline H. Nguyen, District Judge, Presiding

                     Argued and Submitted December 9, 2014
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GILMAN,** GRABER, and CALLAHAN, Circuit Judges.

      Defendants-Appellants Galvin Gibson (“Gibson”) and Vagan Adzhemyan

(“Adzhemyan”) appeal their convictions for kidnapping and conspiracy to kidnap

under 18 U.S.C. § 1201.1 We have jurisdiction pursuant to 18 U.S.C. § 3742 and

28 U.S.C. § 1291, and we affirm.

      1.       The district court permissibly excluded Defendants’ justification

defense. A party seeking to assert a justification defense must make a pretrial offer

of proof establishing that “(1) he was under unlawful and present threat of death or

serious bodily injury; (2) he did not recklessly place himself in a situation where he

would be forced to engage in criminal conduct; (3) he had no reasonable legal

alternative; and (4) there was a direct causal relationship between the criminal

action and the avoidance of the threatened harm.” United States v. Gomez, 92 F.3d

770, 775 (9th Cir. 1996) (citations and internal quotation marks omitted).

Defendants did not make the required showing because 1) even though there was

evidence of a murder-for-hire plot, Adzhemyan learned about it four or five


          **
            The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
      1
       Gibson also appealed his conviction for marijuana manufacturing under 21
U.S.C. § 841 but offered no argument on why that conviction should be
overturned. We therefore do not address Gibson’s drug conviction.

                                           2
months before the kidnapping, received no threats, much less any recent and

specific threats, and was not under surveillance; 2) Adzhemyan was reckless when

he and at least one associate confronted the victim in the middle of the night with a

baseball bat and a taser; 3) Adzhemyan did not attempt to contact authorities and

did not show that such contact would be futile; and 4) Defendants offer no

explanation why they needed to hold the victim for four days.

      2.      The district court erred by failing to include the “for ransom, reward,

or benefit” language from the jury instruction, because the government must allege

and prove that Defendants obtained some benefit through the abduction. See 18

U.S.C. § 1201(a); Gooch v. United States, 297 U.S. 124, 126–28 (1936)

(concluding that addition of phrase “or otherwise” into federal kidnapping statute

extended jurisdiction of statute “to persons who have been kidnaped and held, not

only for reward, but for any other reason”) (citation and internal quotation marks

omitted). Nevertheless, the error was harmless because of the uncontroverted

evidence that Defendants used the victim’s ATM card to obtain cash from the

victim’s bank account. See United States v. Thongsy, 577 F.3d 1036, 1043 (9th

Cir. 2009).

      3.      There was no constructive amendment of the indictment. The

“complex of facts” proved at trial was not “distinctly different from those set forth


                                           3
in the charging instrument,” and there was no evidence introduced at trial that

would have enabled the jury to convict Defendants for conduct with which they

were not charged. See United States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir.

2012) (citation and internal quotation marks omitted); United States v. Ward, 747

F.3d 1184, 1191 (9th Cir. 2014).

      Even if there was a variance, it does not mandate reversal. Any divergence

between the facts alleged in the indictment and those offered at trial were

immaterial or otherwise nonprejudicial because Defendants were on notice of the

shift in the government’s theory and because of the overwhelming evidence of

Defendants’ guilt. See Ward, 747 F.3d at 1190.

      4.     The district court did not abuse its discretion in excluding evidence on

the alleged murder-for-hire plot and the victim’s alleged ties to organized crime.

In reviewing whether a court abused its discretion in excluding evidence or

limiting testimony, we look to 1) whether the excluded evidence was relevant; 2)

whether other legitimate interests outweighed the defendant’s interest in presenting

the evidence; and 3) whether the exclusion of that testimony left the jury with

sufficient information to assess the witness’s credibility. United States v. Larson,

495 F.3d 1094, 1103 (9th Cir. 2007) (en banc).




                                          4
      In light of the district court’s exclusion of Defendants’ justification defense,

the district court did not abuse its discretion in finding that, under Federal Rule of

Evidence 403, the probative value of the testimony in establishing the victim’s bias

was outweighed by the potential confusion of the issues for the jury. Further, even

assuming the district court erred in limiting testimony, any error was harmless in

light of the overwhelming evidence of Defendants’ guilt. See id. at 1107–08.

      5.     Defendants have not shown a violation of Brady v. Maryland, 373

U.S. 83 (1963), or Napue v. Illinois, 360 U.S. 264 (1959). To establish a Brady

violation, a defendant must show that 1) the evidence at issue was favorable to the

accused; 2) the evidence was suppressed by the government; and 3) the defendant

was prejudiced by the suppression. Strickler v. Greene, 527 U.S. 263, 281–82

(1999). A defendant is not prejudiced under Brady unless the suppressed evidence

is material, meaning that “there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been

different.” Id. at 280 (citation and internal quotation marks omitted). Because of

the overwhelming evidence of their guilt, Defendants have not shown the required

reasonable probability that the result at trial would have been different absent the

alleged violations.




                                           5
      To establish a Napue violation, the defendant must show that the testimony

was “actually false,” the government knew or should have know that the testimony

was actually false, and the false testimony was material. United States v. Houston,

648 F.3d 806, 814 (9th Cir. 2011). Defendants have not shown that the victim

gave “actually false” testimony. Nor have they shown that the alleged false

testimony was material, in light of the overwhelming evidence of their guilt.

      AFFIRMED.




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