                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             MAR 4 2020
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50112

              Plaintiff-Appellee,                D.C. No.
                                                 2:14-cr-00442-DSF-1
 v.

ALCEU JOHNNY ANDREIS,                            MEMORANDUM*

              Defendant-Appellant.


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

                            Submitted March 2, 2020**
                               Pasadena, California

Before: KLEINFELD and CALLAHAN, Circuit Judges, and CHRISTENSEN,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Dana L. Christensen, United States Chief District
Judge for the District of Montana, sitting by designation.
      Alceu Johnny Andreis was convicted of two counts of bank burglary and

sentenced to 240 months in prison (120 months on each count to be served

consecutively) followed by a three-year term of supervised release. On appeal, he

challenges his convictions and his sentence. For the following reasons, we affirm.

      1. Usually, under the extrajudicial source rule, “[o]pinions formed by the

judge on the basis of facts introduced or events occurring in the course of the

current proceedings, or of prior proceedings” do not constitute a basis for a recusal

motion unless “they display a deep-seated . . . antagonism that would make fair

judgment impossible.” United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir.

1997) (per curiam) (internal quotation marks omitted) (quoting Liteky v. United

States, 510 U.S. 540, 554–56 (1994)). None of the district court’s rulings against

Andreis in his prior trial display this level of antagonism. Nor do any of her

comments about Andreis made at his prior sentencing, which have a reasonable

basis in Andreis’s own testimony made during that proceeding. Moreover, these

comments were made during sentencing at which time the district court was

required under 18 U.S.C. § 3553(a) to consider “the history and characteristics of

the defendant” and “the need for the sentence imposed . . . to protect the public

from further crimes of the defendant . . . .” Therefore, it was not an abuse of




                                          2
discretion to deny Andreis’s recusal motion. See United States v. Johnson, 610

F.3d 1138, 1147–48 (9th Cir. 2010).

       2. The district court’s decision to admit evidence and its balancing of

probative value against prejudicial effect are reviewed for abuse of discretion.

United States v. Flores-Blanco, 623 F.3d 912, 919 n.3 (9th Cir. 2010); United

States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989). But, we “consider[ ] de novo

whether evidence is directly relevant to the crime charged or relevant only to ‘other

crimes.’” United States v. Rrapi, 175 F.3d 742, 748 (9th Cir. 1999) (quoting

United States v. Jackson, 84 F.3d 1154, 1158–59 (9th Cir. 1996)). Under Rule

404(b)(1) of the Federal Rules of Evidence, “[e]vidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.” However,

“[t]his evidence may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Id. 404(b)(2). And under Rule 403, a court “may exclude

relevant evidence if its probative value is substantially outweighed by a danger

of . . . unfair prejudice . . . .”

       We have held that Rule 404(b) “precludes the admission of prior bad act

evidence offered only to show criminal propensity,” but “[s]o long as the evidence


                                           3
is offered for a proper purpose, such as to prove intent, the district court is

accorded wide discretion in deciding whether to admit the evidence, and the test

for admissibility is one of relevance.” United States v. Johnson, 132 F.3d 1279,

1282 (9th Cir. 1997).

      Because the Government’s burden to prove every element of a crime beyond

a reasonable doubt “is not relieved by a defendant’s promise to forgo argument on

an issue,” Andreis “cannot preclude the government from proving [one element]

simply by focusing his defense on other elements of his crime.” United States v.

Hadley, 918 F.2d 848, 852 (9th Cir. 1990). Therefore, Andreis’s argument that the

404(b) evidence should not have been admitted for purposes of preparation, plan,

or intent because he did not dispute those issues in this case fails.

      Moreover, the evidence of other burglaries was offered to prove identity,

which is a proper purpose under Federal Rule of Evidence 404(b). So then, the test

is whether “the evidence tends to prove a material point” and whether “the

evidence is sufficient to support a finding that the defendant committed the other

act . . . .” United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005) (internal

quotation marks omitted) (quoting United States v. Verduzco, 373 F.3d 1022, 1027

(9th Cir. 1994)). Such rooftop robberies were rare occurrences and involved a

number of very unusual characteristics. And lack of credibility of a cooperating


                                            4
witness “goes to the weight of the evidence, not its admissibility,” United States v.

Hollis, 490 F.3d 1149, 1153 (9th Cir. 2007), abrogated on other grounds by

DePierre v. United States, 564 U.S. 70 (2011). It was not an abuse of discretion

for the district court to find that this evidence of other burglaries was sufficient to

support the verdict that Andreis committed the rooftop burglary at issue in this

case. Given the substantial deference we are required to give to the district court’s

balancing of evidence’s prejudicial effect and probative value, we cannot say the

district court abused its discretion under Rule 403 by admitting the other-burglaries

evidence. United States v. Lindsay, 931 F.3d 852, 868 (9th Cir. 2019).

      3. Andreis did not object below to the court’s failure to instruct the jury as to

an expert’s dual-capacity testimony, the 404(b) jury instruction that he challenges

now, or the court’s answer to the note from the jury. Therefore, his claims are

reviewed for plain error. United States v. Teague, 722 F.3d 1187, 1190 (9th Cir.

2013); United States v. Hofus, 598 F.3d 1171, 1175–76 (9th Cir. 2010). This

standard requires a showing that (1) there was error, (2) the error was plain, (3) the

error affected Andreis’s substantial rights, and (4) the error seriously affected the

fairness, integrity, or public reputation of the judicial proceedings. Teague, 722

F.3d at 1190.




                                            5
      Even assuming the expert’s testimony regarding the holes in the bank vault

being made by the same tool was an expert opinion, it was not plain error for the

district court to fail to issue a contemporaneous instruction about dual-capacity

expert witnesses at the time. It did not affect Andreis’s substantial rights—given

all the other evidence against him—nor did it affect the fairness, integrity, or

public reputation of the judicial proceedings. Teague, 722 F.3d at 1190.

Therefore, this argument fails.

      4. In the context of the other jury instructions, it is unlikely that either the

district court’s instruction on Rule 404(b) or the district court’s response to the

jury’s question misled the jury. We review the formulation of jury instructions for

abuse of discretion. United States v. Amlani, 111 F.3d 705, 717 (9th Cir. 1997).

Andreis has not shown that the instruction or the response to the jury’s question

was an abuse of discretion, id., or error, much less that it was plain error. Hofus,

598 F.3d at 1175–76.

      5. Limitations on the scope of cross-examination are reviewed for abuse of

discretion. United States v. Shryock, 342 F.3d 948, 980 (9th Cir. 2003). The

limitations imposed on Andreis’s cross-examinations of Isaia and Soto were

reasonable. What is more, the probative aspects of the testimony that was limited




                                            6
were mostly admitted through other means. Therefore, it was not an abuse of

discretion to limit these cross-examinations.

      Nor was it an abuse of discretion for the district court below to admonish

Andreis’s counsel to ask questions of Soto on cross-examination rather than make

declarative statements. This is especially true given Soto’s statements that he did

not understand what Andreis’s counsel was asking him.

      The “decision to declare a mistrial is left to the ‘sound discretion’ of the

judge, but ‘the power ought to be used with the greatest caution, under urgent

circumstances, and for very plain and obvious causes.’” Renico v. Lett, 559 U.S.

766, 774 (2010) (quoting United States v. Perez, 22 U.S. 579, 580 (1824)). The

district court denied Andreis’s motion for a mistrial despite Soto’s testimony for

the first time at trial that he felt Andreis had threatened him. The district court’s

determination that this single assertion by one of the alleged members of Andreis’s

crew did not warrant a new trial was reasonable, and the district court therefore did

not abuse its discretion by failing to grant a mistrial.

      Under Holbrook v. Flynn, 475 U.S. 560, 569 (1986), it is possible for the

deployment of security officers in a courtroom to create the impression in the

jury’s minds that a defendant is dangerous or untrustworthy. But the placement of

a single marshal in Andreis’s vicinity did not rise to the level of denying Andreis a


                                            7
fair trial.

        None of these alleged trial errors constituted clear errors, if indeed they were

errors at all. Neither do they individually or cumulatively require a new trial.

        6. The Sentencing Guidelines provide for a two-level sentencing

enhancement if the defendant used “a special skill, in a manner that significantly

facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3.

“[A]s a general rule, a district court’s application of the Sentencing Guidelines to

the facts of a given case should be reviewed for abuse of discretion.” United States

v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). Here, the district

court’s application of the enhancement was reasonable. It was not an abuse of

discretion to classify Andreis’s employment of the tools he used to commit

sophisticated rooftop bank robberies as a “special skill.”



        AFFIRMED.




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