                           NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                             FILED
                          FOR THE NINTH CIRCUIT                                JUN 12 2015

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

UNITED STATES OF AMERICA,                        No. 13-50433

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00351-ODW-9

 v.
                                                 MEMORANDUM*
JUAN DIAZ, AKA Swifty,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Otis D. Wright II, District Judge, Presiding

                      Argued and Submitted January 8, 2015
                              Pasadena, California

Before:       KOZINSKI, WARDLAW and W. FLETCHER, Circuit Judges.

      1. The district court didn’t abuse its discretion in denying Diaz’s request for

new counsel. The district court pressed Diaz to explain his reasons for changing

counsel, even though his request came on the eve of trial, see United States v.

Franklin, 321 F.3d 1231, 1238–39 (9th Cir. 2003), and there was no evidence of



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                              page 2
intractable conflict between Diaz and his lawyer, see United States v. Adelzo-

Gonzalez, 268 F.3d 772, 779–780 (9th Cir. 2001).


      2. Because David Navarro used knowledge gained from firsthand

experience to decode the Black Angels’ conversations, he properly testified as a

lay witness. See United States v. Gadson, 763 F.3d 1189, 1209–10 (9th Cir. 2014).


      3. Viewed cumulatively, the alleged hearsay statements were harmless.

Taped conversations between Diaz and then-kingpin Juan Gil established that Diaz

was a Black Angels member with significant responsibility. And Navarro’s

testimony directly connected Diaz to drug sales, assaults and stabbings and the

collection of extortion payments. Excluding the hearsay statements might have

meant excluding a single murder or drug sale, but other testimony indisputably

connected Diaz to the Black Angels’ criminal operations. Because none of the

statements challenged are testimonial, Diaz’s hearsay objections raise no

constitutional concerns. See Davis v. Washington, 547 U.S. 813, 821 (2006).


      4. Diaz wasn’t entitled to a multiple-conspiracy instruction because “there is

no problem of spillover when . . . the defendant stands trial alone.” United States

v. Anguiano, 873 F.2d 1314, 1318 (9th Cir. 1989). Further, while jury instruction
                                                                              page 3
13 was improper, Diaz suffered no prejudice. He didn’t take the stand, so his

credibility as a witness was immaterial.


      5. The allegedly improper reference to drug quantities in Navarro’s plea

agreement during closing argument wasn’t plain error. The actual drug quantities

referenced weren’t important to the government’s argument; the government’s

main point was that Diaz would have known everything that Navarro knew. Plus,

the actual quantity of drugs moved by Diaz wasn’t seriously in dispute at trial.


      6. Diaz’s supervised release conditions don’t amount to plain error. A

condition that bars association with a gang member satisfies due process. United

States v. Vega, 545 F.3d 743, 749–50 (9th Cir. 2008). Barring Diaz from

associating with both gang members and “others known to him to be participants in

the Black Angels gang’s criminal activities” is only marginally more restrictive,

and it serves to keep Diaz away from the activities that landed him in prison. Any

error therefore wasn’t plain.


      AFFIRMED.
