                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                                      FILED
                            FOR THE NINTH CIRCUIT
                                                                                       AUG 24 2015
                                                                                   MOLLY C. DWYER, CL
                                                                                     U.S. COURT OF APPEA
 UNITED STATES OF AMERICA,                    No. 13-50521

               Plaintiff-Appellee,            D.C. No. 2:12-cr-00221-DSF

   v.                                         MEMORANDUM*

 RICKY DAVID HITSMAN,

 AKA Rick David Hitsman,

               Defendant-Appellant


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                         Argued and Submitted July 6, 2015
                               Pasadena, California

Before: FERNANDEZ and CLIFTON, Circuit Judges, and MUELLER,** District
Judge.

        Ricky David Hitsman was convicted of five violations of 18 U.S.C.

§ 2320(a) for trafficking in counterfeit Viagra. He appeals his conviction on five


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
        The Honorable Kimberly J. Mueller, District Judge for the U.S. District
Court for the Eastern District of California, sitting by designation.
grounds: (1) the evidence against him was constitutionally insufficient; (2) his

prior recorded statements were improperly excluded as hearsay; (3) a photograph

comparing real and fake Viagra pills was improperly admitted; (4) the government

unconstitutionally exercised a peremptory strike to excuse a black juror; and (5) a

government witness improperly testified Hitsman had invoked his right to counsel.

                             I. Sufficiency of Evidence

      Appellant challenges the sufficiency of the evidence showing that Hitsman

sold counterfeit pills and knew those pills were counterfeit. Evidence is

constitutionally sufficient if, viewed in the light most favorable to the prosecution,

“any rational trier of fact” could have found the essential elements of the crime

beyond a reasonable doubt. United States v. Nevils, 598 F.3d 1158, 1163–65

(2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))

(emphasis in original).

      First, although the government presented relatively weak evidence to

establish a chain of custody between the pills Hitsman sold and the pills confirmed

by lab testing to be counterfeit, viewed in the light most favorable to the

government, this evidence was sufficient. Moreover, Hitsman’s counsel conceded

throughout trial and in closing argument that the pills were counterfeit. See United

States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991).




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       Second, the evidence was sufficient to show Hitsman knew the mark on the

pills was counterfeit based on his recorded statements played to the jury, the

photograph comparing genuine pills with the pills Hitsman sold, in-person

demonstrations at trial comparing genuine pills and the pills Hitsman sold, and

other evidence presented at trial.

                                     II. Hearsay

       A district court’s constructions of the hearsay rules are reviewed de novo,

and decisions to admit or exclude evidence under those rules are reviewed for

abuse of discretion. United States v. Morales, 720 F.3d 1194, 1199 (9th Cir.

2013). The district court correctly concluded that each of Hitsman’s excluded

statements was hearsay because Hitsman intended to introduce each as evidence of

his stated belief, and either (1) the statement’s relevance for that purpose depended

on whether he had truthfully stated his belief; or (2) the statement evidenced his

belief only if its component factual assertions were true. See Fed. R. Evid. 801,

802.

       Despite their status as hearsay, Hitsman intended to offer some of his

statements as evidence of his false belief, not of the truth of any underlying factual

assertion. See Fed. R. Evid. 803(3). For example, he sought to introduce his prior

statement that authentic drugs were coming out “the back door” of a Pfizer factory.

Nevertheless, any district court error in failing to recognize the hearsay exception



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was harmless. See United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997).

The government introduced some of the same and several equivalent statements,

which the district court properly admitted. Other evidence of Hitsman’s guilt was

strong.

                   III. Admission of a Comparison Photograph

      The district court admitted a photograph comparing two authentic and two

counterfeit Viagra pills. Decisions to admit evidence are reviewed for abuse of

discretion. Morales, 720 F.3d at 1199. The district court did not abuse its

discretion in admitting the photograph. It was introduced after testimony by the

photographer, who described where he obtained the pills and how and when he

took the picture. Hitsman has only speculated regarding the potential for

distortion.

                      IV. Discriminatory Peremptory Strike

      The Equal Protection Clause prohibits prosecutors from intentionally

striking a potential juror on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89

(1986). To challenge a peremptory strike under Batson, the defendant must first

make out a prima facie case of discrimination. Id. at 96–97. Second, if the

defendant satisfies his burden at the first step, the government must put forward a

neutral explanation for its decision to strike. Id. at 97–98. Third, the trial court




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must determine whether the defendant has proven purposeful discrimination. Id.

at 98.

         Here, Hitsman objected after the government struck Juror No. 4, who was

black. The premise of the objection as stated by defense counsel was that Juror

No. 4 was the only black member of the panel, “leaving the jury with not a single

African American member.” That was, in fact, not the case. The district court

noted that there was at least one other African American member of the panel. The

district court concluded Hitsman had not made out a prima facie case of purposeful

discrimination, but still invited the prosecutor to explain. The district court then

denied the challenge without explanation. This court’s precedent suggests that

once a prosecutor explains a challenged strike, the district court must proceed to

step three of Batson, “evaluate meaningfully the persuasiveness” of the

prosecutor’s explanation, and create “a clear record” of its “deliberate decision on

the ultimate question of purposeful discrimination.” United States v. Alanis,

335 F.3d 965, 968–69 & n.2 (9th Cir. 2003). The district court’s step-three

decision is typically reviewed for clear error. Snyder v. Louisiana, 552 U.S. 472,

477 (2008). Here, because the district court did not explain on the record its

reasons for denying the challenge, this court has nothing to which it can defer. See

id. at 479; Alanis, 335 F.3d at 969 & n.3.




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      Under these circumstances, applying a de novo standard of review, the

record on appeal shows the prosecutor’s explanation was race neutral and not

pretext for racial discrimination. The prosecutor explained Juror No. 4 had

attended the last day of her brother’s trial, at which he was convicted of a drug

offense, had indicated she was emotionally affected by the conviction, and had a

cousin who was involved in a gun crime, who was also serving a custodial

sentence. Only Juror No. 4 described attending a family member’s trial. Juror No.

4 was one of two jurors who requested to discuss charges and convictions at the

sidebar, and the government struck both. Although Juror No. 4 did not say she was

emotionally affected, her request to discuss the matter privately was consistent

with an indication of emotion.

                       V. Invocation of the Right to Counsel

      The government may not impeach a criminal defendant with his decision to

remain silent, Doyle v. Ohio, 426 U.S. 610, 619 (1976), or to hire a lawyer, United

States v. Kallin, 50 F.3d 689, 693 (9th Cir. 1995). During cross examination, one

of the government’s witnesses responded to a question by saying Hitsman had

“lawyered up” and “seeked [sic] counsel.” The district court promptly allowed a

sidebar at defense counsel’s request, and the court denied a motion for mistrial.

The line of questioning ceased, and no one mentioned the answer again until the

next morning, when the district court firmly instructed the jury not to consider it.



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      If the witness’s statement violated the rule of Doyle, the error was harmless.

See United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991). The

circumstances suggest the statement was not calculated to imply Hitsman’s guilt.

Although the district court’s curative instruction came the next morning, neither

party stressed the statement or suggested Hitsman’s guilt could or should be

inferred from it, and the statement was very brief.

                                   VI. Conclusion

      Given the nature of any errors, as discussed above, the cumulative effect was

not prejudicial. See United States v. Ruiz, 710 F.3d 1077, 1080 n.1 (9th Cir.)

(noting isolated errors do not justify reversal), cert. denied, 134 S. Ct. 488 (2013).

      AFFIRMED.




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