                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 26 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-10211

              Plaintiff - Appellee,              D.C. No. 1:06-CR-00198-SOM

  v.
                                                 MEMORANDUM*
MICHA TERRAGNA,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-10212

              Plaintiff - Appellee,              D.C. No. 1:06-CR-00198-SOM

  v.

KEVIN BRUNN,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-10230

              Plaintiff - Appellee,              D.C. No. 1:06-cr-00198-SOM-1

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
DOUGLAS GILMAN, Sr.,

           Defendant - Appellant.



UNITED STATES OF AMERICA,                  No. 09-10248

           Plaintiff - Appellee,           D.C. No. 1:06-cr-00198-SOM-2

  v.

DOUGLAS GILMAN, Jr.,

           Defendant - Appellant.



UNITED STATES OF AMERICA,                  No. 09-10257

           Plaintiff - Appellee,           D.C. No. 1:06-cr-00198-SOM-8

  v.

WILLIAM GILMAN,

           Defendant - Appellant.


                Appeal from the United States District Court
                         for the District of Hawaii
             Susan Oki Mollway, Chief District Judge, Presiding

                    Argued and Submitted June 17, 2010
                            Honolulu, Hawaii

Before: B. FLETCHER, PREGERSON, and CLIFTON, Circuit Judges.


                                     2
      This is the consolidated appeal of several convictions related to a

cockfighting and gambling operation. There are five appellants: Micha Terragna,

Kevin Brunn, Douglas Gilman, Sr., Douglas Gilman, Jr., and William Gilman.

Each raises several arguments. We affirm on most issues, but we vacate William

Gilman’s sentence and remand for resentencing because the district court imposed

a “manager or supervisor” enhancement in calculating the appropriate advisory

guidelines range without resolving the factual dispute over the PSR’s assertion that

William Gilman supervised another participant in the gambling business.

I. Brunn’s and Terragna’s Motions to Suppress

      Terragna and Brunn argue that the district court should have suppressed

certain statements that each made while the FBI was conducting a search of their

home. As all parties agree, they had not been given warnings in accordance with

Miranda v. Arizona, 384 U.S. 436 (1966). We review de novo the denial of a

motion to suppress statements that may have been obtained in violation of Miranda

and review any underlying factual determinations for clear error. See United States

v. Rodriguez-Rodriguez, 393 F.3d 849, 855 (9th Cir. 2005). We give special

deference to a district court’s credibility determinations where, as in this case, a

suppression hearing was held. See United States v. Craighead, 539 F.3d 1073,

1082 (9th Cir. 2008).


                                           3
      Neither Brunn nor Terragna were in custody when they made the statements

at issue. While the number of law enforcement personnel that were present weighs

in favor of determining that they were in custody, the remainder of the Craighead

factors do not. See id. at 1084. Brunn and Terragna were repeatedly told that they

were not under arrest and would not be placed under arrest at the conclusion of the

search. Brunn, himself a police officer, was allowed to spend time freely at the

scene with someone he knew. Neither Terragna nor Brunn was physically

restrained. And Terragna freely walked in and out of the house during the search

and was able to feed her child. These circumstances are far different from those in

Craighead, where Craighead was “escorted to a back room and the door was

closed behind him,” an armed and armored detective appeared to be blocking

Craighead’s exit from the room, and Craighead’s “emotional support” was

excluded from the room. See id. at 1084–89.

II. The Sufficiency of the Indictment as to Brunn

      Brunn challenges the sufficiency of Counts 4–8 of the indictment. We

review de novo. See United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004).

An indictment “must be a plain, concise, and definite written statement of the

essential facts constituting the offense charged. An indictment is sufficient if it

contains the elements of the charged crime in adequate detail to inform the


                                           4
defendant of the charge and to enable him to plead double jeopardy.” United States

v. Awad, 551 F.3d 930, 935 (9th Cir. 2009) (citation and internal quotation marks

omitted). The relevant counts of the indictment were sufficient in this case. They

adequately informed Brunn of the elements of the charge—indeed, they

reproduced those elements almost verbatim—and they would have enabled him to

plead double jeopardy if such a plea were appropriate.

      Brunn makes four specific arguments, but none are persuasive. First,

Brunn’s reliance on United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979), is

misplaced. In Cecil, the only specific allegations in the indictment were that the

defendants were conspirators and that the conspiracy took place in Arizona,

Mexico, and elsewhere. Id. at 1296–97. Brunn’s indictment, in contrast, specified

who took what from whom, and how and when, with detail.

      Second, it does not matter whether Brunn said, “whatever you like give me”

or, “whatever you like imagine” when he was speaking to Charles Gilman. The

threatening part of his statement was when he said, “just rememba, as you sitting in

OCCC, you cannot do nothing, right?” Besides, liability for conspiracy requires

only that one of the conspirators perform an overt act. See United States v. Mincoff,

574 F.3d 1186, 1198 (9th Cir. 2009). No matter what Brunn said to Gilman, the

indictment charged that Brunn and Terragna entered into a conspiracy and listed


                                          5
several overt acts that Terragna performed in furtherance of that conspiracy. Even

without the challenged statement, the indictment would have been sufficient, so

Brunn suffered no prejudice from any transcription error.

      Third, that the indictment did not detail exactly which official acts Brunn did

not perform after extorting money did not make it insufficient. An indictment need

not set forth all of the evidence to be proved at trial; both implication and common

sense may serve to fill any gaps. See United States v. Blinder, 10 F.3d 1468, 1476

(9th Cir. 1993); United States v. Buckley, 689 F.2d 893, 899 (9th Cir. 1982). The

indictment was sufficient in that it alleged that Brunn was a police officer, that he

knew of Charles Gilman’s criminal activity, and that he both threatened Gilman

and, in exchange for money, omitted some act that a police officer with knowledge

of criminal activity would ordinarily perform.

      Finally, the indictment was sufficient despite not giving details about other

conspirators who were “known and unknown to the Grand Jury.” First, a

conspiracy in which only Terragna and Brunn were involved would still be a

conspiracy. Second, the Government’s “concession” that only Brunn and Terragna

were involved was no such thing. The statements that “just Terragna and Brunn are

charged” and that “just the two are charged” meant only that those two (and not the

Gilmans) were charged. It did not mean that no one else was involved. The


                                           6
Government is not required to indict every conspirator. See, e.g., United States v.

Sangmeister, 685 F.2d 1124, 1127 (9th Cir. 1982).

III. The Batson Challenges

      All five defendants challenge the district court’s acceptance of the

Government’s race-neutral justifications for its peremptory strikes of three

prospective jurors. “[I]f the prosecutor offers a race-neutral explanation, the trial

court must decide whether the defendant has proved the prosecutor’s motive for the

strike was purposeful racial discrimination.” United States v. Guerrero, 595 F.3d

1059, 1062 (9th Cir. 2010). After a prosecutor has advanced a race-neutral

explanation, “the issue comes down to whether the trial court finds the prosecutor’s

race-neutral explanations to be credible.” Miller-El v. Cockrell, 537 U.S. 322, 339

(2003). This decision requires a “sensitive inquiry into such circumstantial and

direct evidence of intent as may be available.” Batson v. Kentucky, 476 U.S. 79, 93

(1986) (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266

(1977)). We review the district court’s acceptance of a race-neutral justification for

clear error. See Miller-El, 537 U.S. at 341.

      In this case, as in most cases, the best evidence of the prosecutor’s intent is

his demeanor. See id. at 339. The district court explicitly found the prosecutor

credible. That finding is entitled to “great deference” by this court, id. at 341,


                                           7
because “evaluation of the prosecutor’s state of mind based on demeanor and

credibility lies peculiarly within a trial judge’s province.” Id. at 339 (internal

quotation marks omitted). Defendants offered no evidence to impugn the

prosecutor’s credibility, and we conclude that the district court did not clearly err

in crediting the prosecutor’s race-neutral explanations for his peremptory strikes.

IV. The Timing of Brady Disclosures

      Under Brady v. Maryland, 373 U.S. 83 (1963), the Government must

disclose to the defense any “information in the possession of the prosecutor and his

investigating officers that is helpful to the defendant.” United States v. Price, 566

F.3d 900, 903 (9th Cir. 2009) (emphasis omitted). “The three elements of a Brady

violation are: (1) the evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; (2) that evidence must have

been suppressed by the State, either willfully or inadvertently; and (3) prejudice

must have ensued.” United States v. Williams, 547 F.3d 1187, 1202 (9th Cir. 2008)

(internal quotation marks and alterations omitted). “We review de novo claims of

Brady violations.” Id. at 1202 n.12.

      Defendants claim that the Government committed a Brady violation by

disclosing too late certain FBI interview reports (“302s”) revealing that John

Saguibo, a key Government witness, worked as a confidential informant or


                                            8
confidential source for local police officers in an arguably related precursor

investigation. We assume without deciding that the relevant reports were

impeachment material that the Government should have disclosed. See generally

United States v. Ochoa-Sanchez, 676 F.2d 1283, 1288 (9th Cir. 1982)

(“[D]efendant conducted a meaningful cross-examination using impeaching

information that the witness was an informant and had assisted the government in

other cases.”).

      Although we do not condone the piecemeal manner in which the prosecution

disclosed the evidence, we conclude that defendants were not prejudiced in this

case by the timing of the disclosure. The only specific prejudice defendants

identified was their inability to consider an entrapment defense, but any such

defense would have been highly implausible based on the evidence in this case.

Even if defendants could have put on such a defense, they were not prejudiced by

the delayed disclosure of the FBI’s reports. For more than two years before trial,

defendants had recordings of Saguibo’s wiretapped phone conversations that made

clear he was a police informant. Defendants were provided with transcripts of

those conversations more than a year before trial. At least one defense attorney

stated before trial that Saguibo had gathered intelligence for the police. In light of

these facts, the district court’s finding that defendants had knowledge of Saguibo’s


                                           9
cooperation with the police before trial started was not clearly erroneous. The

delayed production of cumulative evidence of that cooperation was not prejudicial.

See Rhoades v. Henry, 598 F.3d 495, 504 (9th Cir. 2010).

      Moreover, when the Government turned over the evidence under court

order, defendants still had time to prepare for cross-examination. The Government

need not turn over Brady evidence before trial as long as the disclosure is “made at

a time when [the] disclosure would be of value to the accused.” United States v.

Aichele, 941 F.2d 761, 764 (9th Cir. 1991). In this case, the last of the FBI reports

was turned over two weeks before Saguibo was cross-examined. We conclude that

there was no Brady violation because defendants were not prejudiced by the timing

of the disclosure in this case. See Rhoades, 598 F.3d at 504.

V. The Jencks Act Challenge

      Defendants argue that under the Jencks Act, 18 U.S.C. § 3500, the

Government should have turned over 302s that the FBI produced following

interviews with witness Charles Gilman, even though the Government had already

produced the notes from which the reports were created—notes that Charles

Gilman had adopted as his own statement. “A district court’s Jencks Act rulings

are reviewed for abuse of discretion.” United States v. Cardenas-Mendoza, 579

F.3d 1024, 1031 (9th Cir. 2009).


                                          10
      On its own terms, the Jencks Act applies only to a “statement . . . of the

witness,” not a report derived from such a statement. 18 U.S.C. § 3500(b). In this

case, Charles Gilman verified the notes as his own statement when they were read

back to him, but he never adopted a 302 report based on those notes. We have held

that the Government need not produce interview notes as long as it turns over a

report based on those notes and the witness has adopted the report as his own

statement. See United States v. Reed, 575 F.3d 900 (9th Cir. 2009). The same

reasoning applies, a fortiori, where the verified notes themselves are turned over in

lieu of any subsequently created reports that were not verified by the witness. See

United States v. Boshell, 952 F.2d 1101, 1104–5 (9th Cir. 1991) (holding that there

was no Jencks Act violation where the relevant notes “were not a substantially

verbatim recital of [the witness’s] oral statement, nor were they seen, signed or

adopted by [the witness]”).

      Even if the district court had erred in declining to order the disclosure of the

302s, reversal would be inappropriate in the absence of prejudice to defendants.

See Boshell, 952 F.2d at 1105. Because the interview notes that defendants

received included Charles Gilman’s substantially verbatim statements, defendants

were not prejudiced by the Government’s failure to produce formal summaries of

those statements. See United States v. Riley, 189 F.3d 802, 807 (9th Cir. 1999)


                                          11
(“[W]e have not required that testimony be stricken where a substitute for the

missing statement was available.”).

VI. The Denial of Motions for a Continuance

      On several occasions, defendants moved for a continuance to obtain the

impeachment evidence they sought from the Government or to process the

evidence they had already received. We review the district court’s denial of a

continuance for abuse of discretion. United States v. Orlando, 553 F.3d 1235, 1237

(9th Cir. 2009). That review requires us to consider four factors:

      (1) the extent of appellant’s diligence in his efforts to ready his defense prior
      to the date set for hearing, (2) how likely it is that the need for a continuance
      could have been met if the continuance had been granted, (3) the extent to
      which granting the continuance would have inconvenienced the court and
      the opposing party, including witnesses, [and] (4) the extent to which the
      appellant might have suffered harm as a result of the district court’s denial.

United States v. Mejia, 69 F.3d 309, 314 (9th Cir. 1995) (alterations omitted). The

first and third factors weigh against defendants in this case, and the fourth

factor—the requirement of prejudice—is decisive. “[I]n order to obtain a reversal,

appellant must show at a minimum that he has suffered prejudice as a result of the

denial of his request.” Id. at 314–15. Because the defendants suffered no prejudice

from the timing or absence of the disclosures they sought under Brady and the




                                          12
Jencks Act, we conclude that the district court did not abuse its discretion in

denying defendants’ motions for a continuance.

VII. The Request for a Specific Unanimity Instruction

      Defendants argue that the district court should have specifically instructed

the jury that to satisfy the statutory definition of an illegal gambling business under

18 U.S.C. § 1955, all members of the jury would have to agree that the same five

participants were involved in the business for the same 30-day period. Defendants

did not request such an instruction, so the court’s decision not to issue one is

reviewed for plain error. United States v. Treadwell, 593 F.3d 990, 996 (9th Cir.

2010).

      “Usually a general unanimity instruction suffices.” United States v. Gilley,

836 F.2d 1206, 1211 (9th Cir. 1988). This case is no exception. The court’s

decision not to issue a specific unanimity instruction sua sponte was not plainly

erroneous, because this case was “sufficiently simple and clear in its presentation

that unanimity can be assumed based on the general instruction,” United States v.

Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983), quoted in Gilley, 836 F.3d at 1212.

Unlike Gilley, this case posed no serious risk of jury confusion. This case dealt

with one cast of characters involved in a single gambling business that operated

(during the relevant time period) at just one location. Under those circumstances


                                          13
the district court’s decision not to issue a more specific unanimity instruction did

not “prejudice[] the defendant[s’] substantial right to a unanimous jury verdict as

granted by Article III, § 2, and the Sixth Amendment.” Gilley, 836 F.3d at 1212.

VIII. The District Court’s Response to the Jury’s Question Concerning
Counts 5–8

      The jury asked the district court to clarify its instruction concerning Counts

5–8, and both Brunn and Terragna objected to the district court’s response. We

generally review a response to a jury’s inquiry for abuse of discretion, but we

review de novo whether an instruction misstates the law or violates due process.

See United States v. Verduzco, 373 F.3d 1022, 1030 n.3 (9th Cir. 2004).

      Brunn’s argument is that the district court’s instructions, as clarified by the

court’s response, would have allowed the jury to “convict[] both Brunn and

Terragna as aiding and abetting in the substantive Hobbs Act counts without

establishing that some principal had the requisite intent.” That is not true; the

instructions on aiding and abetting to which the district court referred the jury

explicitly stated that the Government had to prove that the underlying offense had

been “committed by someone.” Brunn’s argument therefore fails. See United States

v. Vaandering, 50 F.3d 696, 702 (9th Cir. 1995) (“The jury instruction was not so

misleading that the jury would have believed it could convict one or both



                                          14
defendants of aiding and abetting without believing that the law had been

violated.”).

      Terragna’s argument is similarly problematic. She argues that the district

court’s response to the jury’s query would have allowed the jury to convict

Terragna of aiding and abetting without ever finding that a principal had

committed the underlying offenses. But as mentioned above, the district court’s

instructions required the Government to prove that the underlying offense had been

committed. Moreover, the district court’s response stated that the jury could not

convict Terragna of aiding and abetting Brunn unless they found that Brunn had

“indeed committed the crime.”

IX. The Sufficiency of the Evidence against Terragna and Brunn

      Both Terragna and Brunn challenge the sufficiency of the evidence to

convict them of certain counts. We review sufficiency-of-the-evidence challenges

in two steps. First, we “must consider the evidence presented at trial in the light

most favorable to the prosecution.” United States v. Nevils, 598 F.3d 1158, 1164

(9th Cir. 2010) (en banc). This requirement precludes the extensive reweighing and

selective examination of facts in which both appellants’ briefs engage. Our second

task is to determine whether the “evidence, so viewed, is adequate to allow ‘any

rational trier of fact [to find] the essential elements of the crime beyond a


                                          15
reasonable doubt.’” Id. (alteration in original) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)).

      Terragna challenges the sufficiency of the evidence to convict her of Counts

1–3. To convict Terragna of each conspiracy count, Counts 1 and 3, the

Government had to prove that she entered the conspiracy and that at least one

conspirator performed at least one overt act in furtherance thereof. See Mincoff,

574 F.3d at 1198. To convict her of Count 2, the Government had to prove that she

conducted, financed, managed, supervised, directed, or owned all or part of the

illegal gambling business. See 18 U.S.C. § 1955.

      The evidence presented at trial, taken in the light most favorable to the

Government, was sufficient to convict Terragna on all three counts. Particularly

relevant was Charles Gilman’s testimony that he and Terragna had an agreement to

open a cockfighting operation together, his testimony that Terragna received a

fourth of the proceeds from the cockfights and $1000 out of every $4500 collected

at the gate, John Saguibo’s testimony that Terragna was a partner in the cockfights,

his testimony that Terragna anticipated being able to set up a new cockfighting

operation if she broke away from Gilman, and his testimony that Terragna had

advance notice of when the Narcotics/Vice gambling detail would be coming to the

cockfights.


                                         16
      Brunn challenges his convictions on Counts 3–8. Just as in Terragna’s case,

to convict Brunn of each conspiracy, the Government had to prove that he entered

the conspiracy and that at least one conspirator performed at least one overt act in

furtherance thereof. See Mincoff, 574 F.3d at 1198. To convict him of the four

extortion charges, the Government had to prove that he (1) in any way or degree

obstructed, delayed, or affected commerce (2) by extortion, which is (3) the

obtaining of property from another, (4) with his consent, (5) induced by wrongful

use of (a) actual or threatened force, violence, or fear, or (b) under color of official

right. See 18 U.S.C. § 1951.

      Just as with Terragna, the evidence against Brunn was sufficient to convict

him. Particularly relevant was Charles Gilman’s testimony that Brunn sent a patrol

vehicle to park in front of the cockfights to teach Charles Gilman a lesson, Charles

Gilman’s testimony that he made payments to Terragna and Brunn because he

feared that Brunn would send police to the cockfights to stop them, and John

Saguibo’s testimony that Brunn attended a meeting with Charles Gilman and

Bryson Apo where they discussed the cockfights and keeping quiet about bribes

that were being paid to police officers.




                                           17
X. Whether Count 4 Merged with Counts 5–8 as to Terragna

      Terragna argues that the district court should have entered a judgment of

acquittal for Counts 5–8 (which alleged that she aided and abetted Brunn’s

extortion from Charles Gilman) because the jury found her not guilty of Count 4

(which alleged a conspiracy to extort money from Gilman). We review the denial

of a motion for acquittal de novo. See United States v. Sutcliffe, 505 F.3d 944, 959

(9th Cir. 2007).

      In general, a defendant can be convicted both for a conspiracy to commit a

crime and for committing that crime. See Pinkerton v. United States, 328 U.S. 640,

643–44 (1946). Wharton’s Rule is a judicial presumption against dual prosecutions

for conspiracy and certain substantive crimes: those that necessarily entail an

agreement between two people, such as adultery, incest, bigamy, and dueling. See

Iannelli v. United States, 420 U.S. 770, 773–74 & n.5, 782–83 (1975). Terragna

argues that Wharton’s Rule should have precluded dual prosecutions for

conspiracy and aiding and abetting.1 But the rule does not apply to the crime of

aiding and abetting. That crime does not require an agreement, so it can be charged




      1
       Terragna does not mention Wharton’s Rule by name in her brief, but her
attorney did so at the hearing concerning Terragna’s posttrial motion for acquittal.
                                         18
and punished separately from conspiracy. See United States v. Huber, 772 F.2d

585, 591–92 (9th Cir. 1985).

XI. Leadership Role Enhancements

      The Gilmans each challenge the sentence enhancements they received for

holding leadership roles in the gambling business. We review “the district court’s

interpretation of the Sentencing Guidelines de novo, the district court’s application

of the Sentencing Guidelines to the facts of this case for abuse of discretion, and

the district court’s factual findings for clear error.” United States v. Stoterau, 524

F.3d 988, 997 (9th Cir. 2008) (quoting United States v. Kimbrew, 406 F.3d 1149,

1151 (9th Cir. 2005)).

      The Gilmans argue that their sentence enhancements resulted from

impermissible double counting because both the crime of conducting an illegal

gambling business and the adjustment for holding a leadership position in a

criminal activity require at least five participants. 18 U.S.C. § 1955; U.S.S.G.

§ 3B1.1. The enhancement does not involve double counting because it includes an

element distinct from the crime itself, namely a leadership role. “If . . . it is

possible to be sentenced under a particular offense guideline without having

engaged in a certain sort of behavior, such behavior may be used to enhance the

offense level, for in this situation, the guideline’s base offense level will not


                                            19
necessarily have been set to capture the full extent of the wrongfulness of such

behavior.” United States v. Reese, 2 F.3d 870, 895 (9th Cir. 1993). A leadership

role is not a necessary element of the crime of “conduct[ing], financ[ing],

supervis[ing], direct[ing], or own[ing] all or part of an illegal gambling business.”

18 U.S.C. § 1955. It is possible, for example, to finance such a business without

organizing, leading, managing, or supervising it. Thus, the application of the

leadership role adjustment does not involve impermissible double counting.

      Douglas Gilman, Sr., challenges the factual basis for the district court’s

imposition of a four-point enhancement for his role as an “organizer or leader” of

the gambling business. Even if Douglas Gilman, Sr., were correct that he did not

own the business or receive the largest share of the proceeds, the enhancement

would still be appropriate based on evidence in the record that he directed Charles

Gilman to set up the tent, ordered the payoffs to Terragna, and parceled out to the

workers tips from gamblers who sat in the shade of the tent. On this evidence, the

district court’s finding that Douglas Gilman, Sr., was an organizer or leader was

not clearly erroneous.

      William Gilman also challenges the factual basis for his three-point

“manager or supervisor” adjustment. The court relied on evidence that William

operated dice tables, received proceeds from the chicken fights, and could choose


                                          20
his method of payment.2 This evidence did not necessarily mean that he qualified

for the “manager or supervisor” adjustment. “To qualify for an adjustment under

[U.S.S.G. § 3B1.1], the defendant must have been the organizer, leader, manager,

or supervisor of one or more other participants.” U.S.S.G. § 3B1.1 cmt. n.2

(emphasis added). We must vacate a sentence that imposes this enhancement

absent evidence that the defendant supervised another participant. See United

States v. Woods, 335 F.3d 993, 1001–02 (9th Cir. 2003).

      In determining whether the requirement of supervising another participant

has been met, “the court must focus on what the defendant did, in relation to at

least one other participant, in the commission of the offense.” United States v.

Jordan, 291 F.3d 1091, 1098 (9th Cir. 2002) (emphasis omitted) (quoting United

States v. Frankhauser, 80 F.3d 641, 655 (1st Cir. 1996)). The district court

examined the evidence concerning what William did in relation to the business’s

customers, but pointed to no evidence that he supervised another participant in the


      2
          The probation office recommended William Gilman’s “manager or
supervisor” adjustment based on a disputed portion of the presentence report. The
district court did not clearly rule on the dispute, but we conclude that the district
court complied with Rule 32 by indicating that it would “proceed with the
understanding that William Gilman was not involved in putting up or taking down
. . . the equipment that was used at the chicken fights.” See Fed. R. Crim. P.
32(i)(3) (allowing the district court to avoid ruling on a disputed portion of the
presentence report by deciding that “the court will not consider the matter in
sentencing”).
                                          21
business. The customers who placed bets at William’s table were not “participants”

in the illegal gambling business. “A ‘participant’ is a person who is criminally

responsible for the commission of the offense, but need not have been convicted.”

Woods, 335 F.3d at 1001 (quoting U.S.S.G. § 3B1.1 cmt. n.1). Thus, the district

court erred by imposing the “manager or supervisor” enhancement in calculating

the advisory guideline range for William. We vacate his sentence and remand to

the district court for resentencing. See Jordan, 291 F.3d at 1099.

XII. Cumulative Error

      The district court made no errors beyond applying a three-level enhancement

to William Gilman’s offense level, as described above. As a result, there was no

prejudicial effect of minor errors to accumulate. See, e.g., United States v.

Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007).

XIII. Conclusion

      We affirm in full as to Defendants Micha Terragna, No. 09-10211; Kevin

Brunn, No. 09-10212; Douglas Gilman, Sr., No. 09-10230; and Douglas Gilman,

Jr., No. 09-10248. We affirm William Gilman’s judgment of conviction, vacate his

sentence, and remand his case, No. 09-10257, for resentencing.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.




                                          22
