                                                                           FILED
                           NOT FOR PUBLICATION                              APR 12 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50316

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01215-SJO-12

  v.
                                                 MEMORANDUM *
BERNARD BEARD,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-50512

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01215-SJO-9

  v.

DEMOND LEE, AKA D-Boy,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-50187

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01268-ODW-3

  v.


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

              Defendant,

  v.

BERNARD BEARD,

              Movant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding
                     Otis D. Wright, District Judge, Presiding

                        Argued and Submitted March 6, 2012
                               Pasadena, California

Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.

       Bernard Beard (“Beard”) and Demond Lee (“Lee”) appeal their jury

convictions and sentences for conspiracy to distribute controlled substances from

Los Angeles to St. Louis. Beard also appeals the district court’s order denying his

request to obtain sealed documents subject to a protective order in the criminal

case against Robert Bell (“Bell”). Lee also appeals the district court’s denials of

his motions to substitute counsel prior to trial. This court has jurisdiction under 28

U.S.C. § 1291, and we affirm.




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      I. Viewed in the light most favorable to the government, there was

sufficient evidence for a rational jury to find that Beard and Lee were members of a

single conspiracy. To establish a single conspiracy, “the evidence must show that

each defendant knew, or had reason to know, that his benefits were probably

dependent upon the success of the entire operation.” United States v. Duran, 189

F.3d 1071, 1080 (9th Cir. 1999) (internal quotation marks and alteration omitted).

Here, ample evidence, including recorded telephone calls, witness testimony, and

physical evidence, demonstrates that both Lee and Beard benefitted from the

activities of the conspirators in both Los Angeles and St. Louis. The evidence

shows that Beard benefitted by receiving payments from the drug transactions,

while Lee benefitted by contributing to the purchase of the drugs and transporting

the drugs from Los Angeles to St. Louis.

      II. The district court did not abuse its discretion by denying Beard’s motion

to sever his trial from his co-defendants. Beard fails to articulate any specific trial

right of which he was deprived due to the district court’s denial of his motion to

sever, and the jury instructions were more than adequate to ameliorate any

prejudicial effects of a joint trial. See United States v. Vasquez-Velasco, 15 F.3d

833, 845–46 (9th Cir. 1993) (establishing that a defendant must show “clear,




                                            3
manifest, or undue prejudice from the joint trial, that it violates one of his

substantive rights”) (internal quotation marks and alteration omitted).

      III. Beard’s counsel was not objectively deficient in stipulating to a prior

felony conviction during Beard’s bifurcated trial on the felon-in-possession of a

firearm charge, as it is common trial strategy to prevent the jury from hearing

evidence of additional convictions. See Old Chief v. United States, 519 U.S. 172

(1997).

      IV. Beard waived the argument that the government’s evidence was

insufficient to prove that he suffered a prior felony drug conviction for purposes of

the mandatory minimum sentence, as Beard did not challenge the “finality” of his

state conviction in the sentencing court and thus waived this argument. 21 U.S.C.

§ 851(b) (“[A]ny challenge to a prior conviction which is not made before sentence

is imposed may not thereafter be raised to attack the sentence.”).

      V. Beard was not denied due process and the district court did not abuse its

discretion by refusing to release sealed documents pertaining to Bell’s case.

Although Beard has a First Amendment right to access Bell’s records, the district

court – after giving Beard the opportunity to object – found compelling reasons to

keep the record sealed. Oregonian Pub’g Co. v. United States Dist. Ct., 920 F.2d

1462, 1465–66 (9th Cir. 1990). Further, although Beard has a common law right


                                            4
to access Bell’s records, the district court found sufficient countervailing interests

that would be harmed by unsealing Bell’s records and Beard has not articulated

any compelling interest to outweigh that determination. Id. at 1467 (stating that

under the common law right of access to judicial records, the party seeking access

must make a threshold showing that “a compelling interest would be served by

disclosure”) (citation omitted); United States v. Kaczynski, 154 F.3d 930, 931 (9th

Cir. 1998) (stating that upon making the threshold showing, the district court

balances the movant’s “asserted need against any asserted reasons for

confidentiality”).

      VI. The district court did not abuse its discretion by denying Lee’s request

to substitute counsel. The court conducted a detailed inquiry into each of his

motions and found that Lee’s contentions did not result in an irreconcilable conflict

or a complete breakdown in communication. See United States v. Mendez-

Sanchez, 563 F.3d 935, 943 (9th Cir. 2009). The record shows that Lee and his

counsel had some productive conversations, and that counsel stated that he was

able to vigorously represent Lee and held no animosity towards Lee.

      For the foregoing reasons, the district court is AFFIRMED.




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