                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 27 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30128

              Plaintiff - Appellee,              D.C. No. 1:12-cr-00001-TMB-1

 v.
                                                 MEMORANDUM*
RICHARD CORUM,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                      Argued and Submitted August 13, 2015
                               Anchorage, Alaska

Before: SCHROEDER, RAWLINSON, and MURGUIA, Circuit Judges.

      A jury found Defendant-Appellant Richard Corum guilty of one count each

of conspiracy to distribute oxycodone in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(C), and 846, and threatening a witness with intent to influence his testimony

in violation of 18 U.S.C. § 1512(a)(2)(A) and (a)(3)(B). The district court



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentenced Corum to terms of imprisonment of 120 months on the conspiracy count

and 36 months on the witness tampering count, to run concurrently. Corum

appeals his conviction on both counts. We have jurisdiction under 28 U.S.C.

§ 1291, and affirm.

      Corum argues that the district court abused its discretion in failing to order

separate trials on the conspiracy and tampering counts for two reasons. First,

Corum argues that a video depicting Corum attacking a coconspirator in an

Anchorage jail was admissible only as to the tampering count, and sufficiently

prejudicial as to the conspiracy count to require severance. Corum waived this

argument by failing to raise it in the district court before trial. See Fed. R. Crim. P.

12(b)(3)(D); United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002). And

even if we may review Corum’s contention for plain error, no such error occurred.

The jail video did not cause sufficient prejudice to require severance because it was

relevant to both counts—it tended to show both that Corum attacked his

coconspirator to prevent the coconspirator from testifying and that Corum was

conscious of his guilt in the oxycodone conspiracy. See United States v. Mitchell,

502 F.3d 931, 963 (9th Cir. 2007).

      Second, Corum argues that severance was required because he had important

testimony to give regarding the tampering count and a strong reason to refrain from


                                            2
testifying concerning the conspiracy count. See United States v. Nolan, 700 F.2d

479, 483 (9th Cir. 1983). Corum does not explain his reason for wishing not to

testify as to the conspiracy charge, except to say that he would invoke his Fifth

Amendment privilege against self-incrimination. But Corum’s tactical desire to

testify as to one count and shield himself from damaging cross-examination on the

other is not a sufficiently “strong” reason to refrain from testifying. See United

States v. Yarbrough, 852 F.2d 1522, 1529–30 (9th Cir. 1988); Nolan, 700 F.2d at

483. The district court did not abuse its discretion in denying severance. See

United States v. Stinson, 647 F.3d 1196, 1205 (9th Cir. 2011).

      Corum next argues that the district court violated Corum’s confrontation

right by refusing to strike the direct testimony of a witness who invoked the

privilege against self-incrimination during cross-examination. However, the

questions against which the witness invoked the privilege concerned a matter that

was “purely collateral” to the witness’s direct testimony, see United States v.

Norman, 402 F.2d 73, 76–77 (9th Cir. 1968)—Corum’s questions on cross aimed

to impeach the witness based on unrelated charges the witness faces in California.

In addition, Corum was able to attack the witness’s credibility in other ways; for

example, by suggesting that the witness had a motive to favor the Government, and

eliciting that the witness had lied to police officers investigating the oxycodone


                                           3
conspiracy. Because Corum had ample opportunity to impugn the witness’s

credibility, the witness’s invocation of the privilege against self-incrimination in

response to questions concerning a collateral matter did not require the district

court to strike the witness’s direct testimony. See Norman, 402 F.2d at 76–77.

      AFFIRMED.




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