                                                                           FILED
                           NOT FOR PUBLICATION                             APR 03 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10267

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00749-RS-1

  v.
                                                 MEMORANDUM*
CHRISTOPHER BRYAN ABLETT,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                     Argued and Submitted February 10, 2014
                            San Francisco, California

Before: REINHARDT and THOMAS, Circuit Judges, and SESSIONS, District
Judge.**

       Christopher Ablett appeals his federal jury conviction and sentence for

murder in aid of racketeering, assault with a dangerous weapon in aid of

racketeering, use or possession of a firearm in furtherance of a crime of violence,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
and use or possession of a firearm in furtherance of a crime of violence resulting in

murder. We have jurisdiction under 28 U.S.C. § 1291. Because the parties are

familiar with the history of this case, we need not recount it here.

                                            I

      We need not determine whether the district court erred in its evidentiary

rulings, because we conclude that any error was harmless. An erroneous decision

to exclude evidence – even if it amounted to an abuse of discretion – will be

reversed only if it is “more likely than not that the error affected the verdict.”

United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir. 2000).

      The overall strength of the prosecution’s case against Ablett was

overwhelming. Ablett, who claimed self-defense and defense of others, shot the

victim in the back of the head while the victim was lying prone and immobile in

the street, in spite of his and the other endangered parties having two vehicles as a

means of escape. No witness corroborated Ablett’s claim that he was fired on by

men in a nearby SUV. Moreover, the jury rejected Ablett’s self-defense claim

even though eyewitnesses testified that the victim was the first aggressor. While

the excluded evidence may have increased the plausibility of Ablett’s account that

the victim was the first aggressor and was prone to the use of force, it is unlikely to

have affected the verdict.


                                            2
      The evidentiary rulings did not deprive Ablett of his constitutional right to

“a meaningful opportunity to present a complete defense,” under the Fifth

Amendment’s guarantee of due process or the Sixth Amendment’s guarantee of

compulsory process. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting

California v. Trombetta, 467 U.S. 479, 485 (1984)). Because the excluded

evidence was not “necessary for the defendant to refute a critical element of the

prosecution’s case” or “essential to the defendant’s alternative theory of the case,”

and in fact Ablett was able to present considerable evidence supporting his self-

defense theory, we conclude that there was no constitutional violation. United

States v. Pineda-Doval, 614 F.3d 1019, 1033 (9th Cir. 2010).

                                           II

      Ablett argues that by offering a mutual combat instruction, and allowing the

government to frame an argument based on the instruction, the district court

violated his freedoms of speech and association protected by the First Amendment.

Because Ablett did not raise this issue before the district court, we review the

district court's instructions for plain error. Under plain error review, we may

reverse a district court’s decision only when the defendant establishes that (1) the

district court has erred; (2) the error is plain, or “obvious,” under current law; (3)

the error “affect[s] substantial rights” of the defendant; and (4) the error “seriously


                                            3
affect[s] the fairness, integrity or public reputation of judicial proceedings.” United

States v. Olano, 507 U.S. 725, 733–37 (1993) (internal quotations omitted).

      We need not determine whether Ablett satisfied the first three elements of

plain error because granting the instruction and allowing argument from it did not

“seriously affect the fairness, integrity or public reputation of judicial

proceedings,” given the overwhelming evidence of guilt and the extreme weakness

of the self-defense claim. Id.

                                           III

      The government concedes that the district court violated Ablett’s rights

under the Sixth Amendment’s Double Jeopardy Clause by sentencing him to

concurrent sentences for both use of a firearm in furtherance of a crime of

violence, under 18 U.S.C. § 924(c), and use of a firearm in furtherance of a crime

of violence resulting in murder, under 18 U.S.C. § 924(j)(1). Under the

Blockburger test, Ablett was sentenced twice for the same offense, because the

former crime does not require proof of any fact in addition to those that must be

proven for the latter crime. See Blockburger v. United States, 284 U.S. 299, 304

(1932).




                                            4
      We affirm Ablett’s conviction, but remand to the district court with

instructions to vacate one of Ablett’s sentences under either 18 U.S.C. § 924(c) or

18 U.S.C. § 924(j).



      AFFIRMED in part, REVERSED in part, and REMANDED.




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