                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 27 2012

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

UNITED STATES OF AMERICA,                        No. 11-30103

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00005-RHW-1

  v.
                                                 MEMORANDUM*
RYAN SEIDEMAN,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Eastern District of Washington
                Robert H. Whaley, Senior District Judge, Presiding

                        Argued and Submitted June 4, 2012
                               Seattle, Washington

Before: SILVERMAN and MURGUIA, Circuit Judges, and GEE, District Judge.**

       The appellant Ryan Seideman (“Seideman”) was convicted of murdering

Lillian Joleen Lee and sentenced to 327 months in prison. He appeals his




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Dolly M. Gee, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
conviction for second degree murder pursuant to 18 U.S.C. §§ 1111 and 1153, and

his sentence.

1.    Sufficiency of the evidence. Seideman claims there was insufficient

evidence to support his conviction for second degree murder. This claim is

reviewed do novo. United States v. Odom, 329 F.3d 1032, 1034 (9th Cir. 2003).

When reviewing a claim that there was insufficient evidence to support a

conviction, the court must consider whether, “viewing the evidence 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, 1163-64 (9th Cir. 2010) (en banc) (internal quotations

omitted).

      Although largely circumstantial, the evidence presented at trial was

sufficient to support Seideman’s conviction for the murder. Investigators found

Seideman’s semen in a condom in the bathroom sink of Lee’s home, as well as two

halves of an open condom wrapper beneath and beside Lee’s body, placing

Seideman at the scene at the time of the crime. Seideman’s DNA profile could not

be excluded as part of a blood mixture on the sweatshirt the victim was wearing.

Underwear found with other clothing in a bag behind Lee’s apartment building

contained both Seideman’s and Lee’s DNA, including blood belonging to


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Seideman. There was testimony that Seideman owned clothing similar to that

found in the bag. In addition, Seideman gave inconsistent statements to law

enforcement about his dealings with Lee and denied having sexual contact with

her, despite clear evidence to the contrary. Viewed in the light most favorable to

the government, there was sufficient circumstantial evidence to permit a rational

trier of fact to conclude beyond a reasonable doubt that Seideman murdered Lee.

2.    Constructive amendment. Seideman argues that there was constructive

amendment of and material variance from the indictment. The indictment

indicated that Lee was murdered on or about March 20, 2006, but evidence at trial

indicated she was murdered between March 18 and March 20, 2006. Allegations

of constructive amendment or material variance are reviewed de novo. United

States v. Bhagat, 436 F.3d 1140, 1145 (9th Cir. 2006). Where the indictment

states that a crime occurred “on or about” a given date, “[t]he government

ordinarily need prove only that the crime occurred on a date reasonably near the

one alleged in the indictment, not on the exact date.” United States v.

Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir. 1997). March 18 and 19 are

reasonably near March 20, so there was no constructive indictment or variance.

3.    Limitation of defense. Seideman claims that the district court placed an

unconstitutional limitation on his defense because, prior to jury selection, it


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informed the parties that attacking law enforcement’s diligence could open the

door to Seideman’s suppressed confession. Seideman, however, never tendered

any offer of proof about what evidence he sought to introduce regarding diligence.

The district court did not preclude any specific evidence or determine that any line

of questioning opened the door. The right to testify and present evidence is not

without limits, and it is a fact of litigation that a decision to present testimony

about one issue can leave the defendant vulnerable on other issues. Ohler v.

United States, 529 U.S. 753, 759 (2000); McGautha v. California, 402 U.S. 183,

215 (1971), overruled on other grounds by Crampton v. Ohio, 408 U.S. 941

(1972). The district court did not err by warning Seideman that certain questions

suggesting that law enforcement failed to pursue other suspects could open the

door to testimony about Seideman’s suppressed confession. See, e.g., United

States v. Cruz-Diaz, 550 F.3d 169, 175-76 (1st Cir. 2008).

4.    Admission of the clothing. Seideman claims that the district court abused

its discretion in admitting the clothing found in the plastic bag behind Lee’s house.

“The government need only make a prima facie showing of authenticity, as the rule

requires only that the court admit evidence if sufficient proof has been introduced

so that a reasonable juror could find in favor of authenticity . . . .” United States v.

Tank, 200 F.3d 627, 630 (9th Cir. 2000) (internal quotation marks and alterations


                                            4
omitted). The testimony from FBI evidence control technician Aaron Hammer was

sufficient to authenticate the clothing. Although there were inconsistencies in the

details provided in the inventory sheets as well as in the testimony regarding the

presence or absence of FBI markings, these defects in the chain of custody go to

the weight, rather than the admissibility, of the evidence. United States v.

Matta-Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995).

5.    Admission of photo of Seideman in a black tank top. Seideman argues

that the district court abused its discretion in admitting a photograph of him in a

black tank top, because it improperly permitted the jury to conclude that the black

tank top found in a bag of clothes outside Lee’s apartment belonged to him. The

fact that Seideman had worn a black tank top, when a black tank top was found in a

bag near the scene of the crime, had some relevance, even if the relevance is

marginal. See, e.g., United States v. Rogers, 769 F.2d 1418, 1426 (9th Cir. 1985);

see also United States v. Henderson, 241 F.3d 638, 651 (9th Cir. 2000). Given the

marginal relevance of this evidence, its prejudicial effect, if any, would be slight.

Rogers, 769 F.2d at 1426. The district court did not abuse its discretion in

admitting the photo.

6.    Exclusion of other suspect’s failed polygraph. Seideman claims that the

court’s exclusion of evidence concerning the failed polygraph examination of


                                           5
another suspect, August Jolley, denied him the right to pursue a complete defense

in violation of the Sixth Amendment. Seideman wanted to show that the police

failed to adequately pursue other suspects. The court excluded evidence that Jolley

failed the polygraph pursuant to Rule 403 of the Federal Rules of Evidence,

because it determined that the evidence would confuse the jury, would take too

long to explain, and could be misinterpreted by the jury.

      The Sixth Amendment right to present evidence can be restricted by the

court’s exercise of discretion under Rule 403. See, e.g., United States v. Ross, 372

F.3d 1097, 1113 (9th Cir. 2004). This Court reviews a district court’s decision to

exclude polygraph evidence under Rule 403 with “considerable deference.”

United States v. Cordoba, 194 F.3d 1053, 1063 (9th Cir. 1999). Here, the court

allowed Seideman to present evidence that the police gave Jolley a polygraph

examination and that the results led them to conduct tests for Jolley’s DNA, which

turned up negative. The court did not abuse its discretion or violate Seideman’s

Sixth Amendment rights in excluding evidence that Jolley failed the polygraph

under Rule 403.

7.    Shoe size expert. Seideman also claims that the district court violated his

Sixth Amendment rights by precluding him from filing a late notice for a shoe size

expert after he received the “natural size” photos of the shoe prints from the crime


                                          6
scene. The district court may, for cause shown, allow late filing of the notice of

expert, but because Seideman missed the deadline set by the court, the decision is

reviewed under the abuse of discretion standard. United States v. Tekle, 329 F.3d

1108, 1113 (9th Cir. 2003). As the court noted, Seideman already had comparable

photos of the shoe prints that would have permitted him to conduct the analysis.

Those photos included a ruler, which would permit diligent counsel to create

natural size photos. The district court did not abuse its discretion or violate

Seideman’s Sixth Amendment rights by denying his motion to file a late notice for

a shoe size expert.

8.    Improper statement by prosecutor. Seideman also argues that an

improper rebuttal argument by the government, suggesting that Seideman’s

objections to the admission of a belt proved the belt belonged to him, warrants a

new trial. Because Seideman did not object to the statement, however, he

acknowledges that this claim is reviewed under the plain error standard. Under the

plain error standard, the Court will overturn a conviction because of a statement in

closing arguments only where the statement “undermine[s] the fundamental

fairness of the trial and contribute[s] to a miscarriage of justice.” United States v.

Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986) (internal quotation mark omitted).

These comments by the prosecutor were highly improper; Seideman has the right


                                           7
to object to the admission of evidence without those objections being identified as

evidence of his guilt. However, we agree with the district court that this isolated

reference to Seideman’s evidentiary objection did not affect the jury’s verdict in

light of the weight of the evidence.

9.    Location of a previously unavailable witness. On appeal, Seideman

argues that the district court erred in denying him a new trial on the basis that a

previously unavailable witness, Samuel Brooks, had been found. This Court

reviews a district court’s ruling on a motion for a new trial on the ground of newly

discovered evidence for abuse of discretion. United States v. Hinkson, 585 F.3d

1247, 1259 (9th Cir. 2009) (en banc). To prevail on a motion for a new trial,

based on newly discovered evidence, a defendant must satisfy a five-part test: 1)

the evidence must be newly discovered; 2) the failure to discover the evidence

sooner must not be the result of a lack of diligence on the defendant’s part; 3) the

evidence must be material to the issues at trial; 4) the evidence must be neither

cumulative nor merely impeaching and 5) the new evidence must indicate that a

new trial would probably result in acquittal. United States v. Harrington, 410 F.3d

598, 601 (9th Cir. 2005). Again, Seideman claims that in denying him a new trial

on this basis, the district court deprived him of his Fourteenth Amendment right to

present witnesses. The court did not abuse its discretion in denying the motion for


                                           8
a new trial because calling Brooks to testify was unlikely to result in acquittal for

Seideman. Brooks could not offer any testimony about the events he described in

his statement to the police, since he does not recall any of the information in the

statement. Admitting portions of his prior statement under these circumstances

would not be likely to result in an acquittal for Seideman. The district court did

not err by denying Seideman a new trial on this basis.

10.   Sentencing. Seideman argues that the district court committed a procedural

error in imposing the within-Guidelines 327-month sentence he received, because

the court did not reduce the sentence based on the mitigating factors Seideman

presented. Sentencing decisions are reviewed for abuse of discretion. United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district court

must explain a sentencing term sufficiently to permit meaningful appellate review.

Id. at 992. A within-Guidelines sentence, however, “ordinarily needs little

explanation unless a party has requested a specific departure [and] argued that a

different sentence is otherwise warranted. . . .” Id. Seideman received a sentence

within the Guideline range. He sought a downward departure from the Guidelines

due to the particularly tragic childhood he experienced and his partial fetal alcohol

syndrome. The court considered the mitigating evidence he presented and

acknowledged its discretion to vary the sentence on that basis, but ultimately


                                           9
rejected it, citing the particularly heinous nature of the crime and the danger the

court believed Seideman posed to society. The district court did not commit a

procedural error. Seideman also claims that the district court erred because it

viewed his condition and background as aggravating, rather than mitigating

circumstances. There is nothing in the record to support this claim.

      AFFIRMED.




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