                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 27 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 15-10571

              Plaintiff-Appellee,                D.C. No.
                                                 4:14-cr-00030-JST-1
 v.

MARCUS BELTON,                                   MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Jon S. Tigar, District Judge, Presiding

                        Argued and Submitted July 10, 2017
                            San Francisco, California

Before: GRABER and FRIEDLAND, Circuit Judges, and GUILFORD,** District
Judge.

      Marcus Belton was found guilty of being a felon in possession of a firearm

and ammunition, see 18 U.S.C. § 922(g)(1), possessing with intent to distribute

cocaine and cocaine base within 1,000 feet of an elementary school, see 21 U.S.C.


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Andrew J. Guilford, United States District Judge for the
Central District of California, sitting by designation.
§§ 841(a)(1), (b)(1)(C), 860(a), and possessing a firearm in furtherance of a drug

trafficking crime, see 18 U.S.C. § 924(c)(1)(A). Belton now appeals his

conviction, asserting four purported errors. Finding none, we affirm.

      1. The district court did not abuse its discretion in denying Belton’s various

requests to continue the trial. See United States v. Flynt, 756 F.2d 1352, 1358 (9th

Cir. 1985). Belton rejected several different appointed attorneys throughout the

course of the proceedings, and engaged in dilatory conduct while representing

himself. The district court properly considered those facts. With the record in this

case, it was neither arbitrary nor unreasonable for the district court to conclude that

Belton was not “diligent in preparing his defense” and that his request for a

continuance “appear[ed] to be a delaying tactic.” See United States v. Kloehn, 620

F.3d 1122, 1127 (9th Cir. 2010). Further, standby counsel had sufficient time to

prepare before the first day of trial. Any alleged difficulty associated with that task

was not attributable to the district court’s decision to deny a continuance. See

United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989).

      2. Belton challenges the district court’s ruling that, if he were to ultimately

testify at trial, he would be required to examine himself in question-and-answer

format. But, as his counsel emphasized at oral argument, Belton made no

commitment to testify in the absence of the district court’s ruling and, what is


                                           2
more, failed to even attempt to take the stand. We are aware of no authority, and

counsel has supplied none, that allows a criminal defendant to preserve such an

argument by merely thinking about the decision to testify. We therefore conclude

that Belton has forfeited the ability to challenge the district court’s ruling on this

issue. See United States v. Johnson, 903 F.2d 1219, 1222 (9th Cir. 1990). Any

other approach would venture far into the realm of speculation and conjecture. Cf.

Luce v. United States, 469 U.S. 38, 41–43 (1984).

      3. The district court did not plainly err or abuse its discretion in admitting

evidence of Belton’s previous felonies. See United States v. Loftis, 843 F.3d 1173,

1176 n.1 (9th Cir. 2016); see also Puckett v. United States, 556 U.S. 129, 135

(2009). Consistent with the federal rules and our precedents concerning propensity

evidence, the district court properly admitted at least one of Belton’s convictions to

prove, among other things, “intent” and “knowledge.” See Fed. R. Evid. 404(b)(2);

United States v. Holler, 411 F.3d 1061, 1066–67 (9th Cir. 2005), overruled in part

on other grounds by United States v. Larson , 495 F.3d 1094, 1101 (9th Cir. 2007)

(en banc). That evidence was not unfairly prejudicial in the sense contemplated by

Federal Rule of Evidence 403. See United States v. Hankey, 203 F.3d 1160, 1172

(9th Cir. 2000). Belton’s other convictions were admitted, in sanitized form,

because he did not stipulate to his status as a “felon” under 18 U.S.C. § 922(g)(1).


                                            3
See United States v. Weiland, 420 F.3d 1062, 1078 (9th Cir. 2005). Any other

possible error, we conclude, was harmless because it had little or no effect on the

jury’s verdict, see id., and was mitigated by the district court’s appropriate limiting

instruction, see United States v. Lloyd, 807 F.3d 1128, 1167 (9th Cir. 2015).

      4. Even under a de novo standard of review, see United States v. Kent, 649

F.3d 906, 912 (9th Cir. 2011), the district court did not err in denying Belton’s

motion to dismiss the superseding indictment for vindictiveness. Belton has not

produced any direct evidence of an improper prosecutorial motive. See United

States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007). Nor, at any rate, has he

identified circumstances sufficient to justify a presumption of prosecutorial

vindictiveness in the pre-trial context. See United States v. Goodwin, 457 U.S.

368, 381–82 (1982).

      AFFIRMED.




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