                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 26 2010

                                                                        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. 09-10119

                Plaintiff - Appellee,             D.C. No. 1:08-CR-00162-HG-1

  v.
                                                  MEMORANDUM *
MARC MILLES,

                Defendant - Appellant.



                      Appeal from the United States District Court
                               for the District of Hawaii
                       Helen Gillmor, District Judge, Presiding

                        Argued and Submitted January 12, 2010
                              San Francisco, California

Before: BRIGHT, ** HAWKINS, and M. SMITH, Circuit Judges.

       Appellant Marc Milles challenges his conviction and sentence of 16 months’

imprisonment after trial by jury for theft of government funds and conspiracy to

steal government funds in violation of 18 U.S.C. §§ 641, 371. On appeal, Milles


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9 TH C IR. R. 36-3.

       **    The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
contends (1) the evidence was insufficient to prove he specifically intended and

conspired to steal government funds; (2) the jury failed to adequately consider the

evidence; and (3) prejudice from prosecutorial misconduct. We affirm.

                                          I.

      Milles challenges the sufficiency of the evidence, arguing there was no

showing he possessed the requisite intent to steal funds, nor that he conspired to

steal funds.

      In reviewing the sufficiency of the evidence, this court examines the

evidence in the light most favorable to the conviction and asks whether a rational

jury could have found the defendant guilty beyond a reasonable doubt. United

States v. Esquivel-Ortega, 484 F.3d 1221, 1224 (9th Cir. 2007).1 We assume the

jury drew reasonable inferences, resolved evidentiary conflicts, and determined

witness credibility in manners which support the verdict. United States v.

Kranovich, 401 F.3d 1107, 1112-13 (9th Cir. 2005).



      1
              Milles did not renew his motion for acquittal at the close of trial and
the parties dispute whether we review his claim de novo or for plain error.
Compare United States v. Cruz, 554 F.3d 840, 844 (9th Cir. 2009) (reviewing
sufficiency challenge for plain error because the defendant did not renew motion
for acquittal) with Esquivel-Ortega, 484 F.3d at 1225 (reviewing sufficiency
challenge de novo because renewing motion for acquittal would have been “empty
ritual”). Because Milles cannot prevail under de novo review, we need not resolve
this dispute.

                                          2
      Applying this standard, ample evidence supports the jury’s verdict. Karl

Reyes, Milles’s coconspirator, testified that over a period of several years he

received government pay without working the hours shown on his time cards and

that he shared one-half of the proceeds with Milles. Reyes stated he gave Milles

half “[b]ecause that was our – that was our plan from the beginning.” Other

witnesses testified that Milles altered and signed Reyes’s time cards and testified

that they never met or saw Reyes during the periods he supposedly worked.

Having thoroughly reviewed the record, we conclude a rational jury could have

found Milles guilty beyond reasonable doubt.

                                          II.

      Milles next argues that the jury failed to discharge its duty because it

returned a verdict in a little over thirty minutes. This argument is without merit.

See United States v. Anderson, 561 F.2d 1301, 1303 (9th Cir. 1977) (“There is no

established rule that any specified time is required to reach unanimity.

Defendant’s argument is a two-edged sword. The jury may have thought there was

not even a shadow of doubt as to guilt.”).




                                             3
                                         III.

      Milles argues that prosecutorial misconduct deprived him a fair trial. There

is no doubt the prosecutors acted improperly.2

      After a noon recess on the fourth day of trial, defense counsel found a

document that contained questions and answers for a government witness, Mr.

Bergmann, who had testified earlier that morning. Defense counsel brought the

document to the court’s attention. The prosecutors admitted giving Bergmann a

copy of the document approximately thirty minutes before he testified. Upon

inquiry by the district court, the prosecutors responded that no other witness was

given a similar document. Defense counsel moved to strike Bergmann’s testimony

or alternatively for a mistrial. In further proceedings on this motion, defense

counsel suggested that had she known of the document’s existence, she would have

cross-examined Bergmann differently. The district court suggested recalling

Bergmann for additional cross-examination. Defense counsel stated she wished to

examine Bergmann about the preparation process and to impeach him. No further

request was made for a mistrial and Bergmann was recalled and examined.




      2
               We note that at oral argument the government assured us that remedial
action has been taken to ensure that the conduct described will not happen again in
the trial of cases in the federal courts of Hawaii.

                                          4
      The parties agree the underlying conduct was improper, but dispute whether

Milles suffered prejudice. Generally, “prosecutorial misconduct invites reversal if

it appears more probable than not that the alleged misconduct affected the jury’s

verdict.” United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990); see United

States v. Sayakhom, 186 F.3d 928, 945 (9th Cir. 1999) (holding defendant did not

show that the alleged coaching materially affected the outcome of the trial and

stating “[c]ross-examination and argument are the primary tools for addressing

improper witness coaching”).

      Though highly improper, the prosecutors’ misconduct did not deny Milles

his right to a fair trial. See Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he

touchstone of due process analysis in cases of alleged prosecutorial misconduct is

the fairness of the trial, not the culpability of the prosecutor.”). First, nothing in

the record suggests prosecutors provided any other witness with a “script.” In fact,

the prosecutors denied so doing when asked by the district court. Second, defense

counsel agreed to the remedy of additional cross-examination and examined

Bergmann regarding the relationship between his testimony and the document.

Third, Bergmann’s testimony largely corresponds with a statement he made to the

government in 2006. Finally, there was substantial evidence of Milles’s guilt




                                            5
without Bergmann’s testimony. We thus conclude the prosecutors’ misconduct did

not prejudice Milles.

      AFFIRMED.




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