                                                                                      FILED
                               NOT FOR PUBLICATION                                     MAY 28 2013

                                                                                  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. 10-50170

                Plaintiff - Appellee,                   D.C. No. 2:08-cr-00686-RHW

   v.
                                                        MEMORANDUM *
 ADONIS GLADNEY,

                Defendant - Appellant.



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

                                 Submitted April 10, 2013 **
                                    Pasadena, California

Before: REINHARDT and MURGUIA, Circuit Judges, and LASNIK, District
Judge.***




         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
         **
             The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
         ***
               The Honorable Robert S. Lasnik, United States District Judge for the Western
District of Washington, sitting by designation.
       Adonis Gladney appeals his conviction of three counts of mail fraud and one

count of violating the anti-circumvention provision of the Digital Millennium

Copyright Act (“DMCA”). On appeal, Gladney contends that the district court

erred in denying his motion for a continuance, the government engaged in

prosecutorial misconduct, the district court erred in refusing to use his proposed

jury instruction regarding the first sale doctrine and in misstating the legal

definition of “circumvent a technological measure,” and the district court’s jury

instructions misled the jury.1 We have jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.2

       Gladney has not established that the district court abused its discretion in

denying his motion for a continuance on the eve of trial. See United States v.


       1
          We do not consider Gladney’s challenges to the district court’s failure to dismiss the
indictment based on alleged defects in the indictment or allegations of prosecutorial misconduct
leading up to the institution of the criminal proceeding because Gladney failed to raise them
before trial. See Fed. R. Crim. P. 12(b), (e); United States v. Ross, 206 F.3d 896, 900 (9th Cir.
2000) (declining to consider claim related to grand jury proceedings because defendant-appellant
waived claim by failing to raise it before trial).
       2
          We reject the government’s argument that Gladney waived all arguments on appeal
because he provided just two paragraphs of argument without citations to the record or authority.
In our discretion, we consider the issues raised in Gladney’s appeal because he identified the
issues clearly and the government responded fully to each issue. See In re Riverside-Linden Inv.
Co., 945 F.2d 320, 324-25 (9th Cir. 1991) (declining to consider issue not raised in opening brief
where the issue has not been fully explored); Int’l Union of Bricklayers & Allied Craftsman
Local Union v. Martin Jaska, Inc., 752 F.2d 1401, 1404 n.4 (9th Cir. 1985) (recognizing that the
court has discretion to consider improperly raised claims where the appellee is not misled and
the issue has been fully explored).

                                                2
Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985). Gladney also fails to establish that he

is entitled to reversal on the basis of the government’s alleged misconduct. Even if

the prosecutor’s references to Gladney’s products as “purported” Microsoft

products constituted misconduct, the misconduct was not prejudicial. United

States v. Wright, 625 F.3d 583, 609-10 (9th Cir. 2010) (“To obtain reversal based

on prosecutorial misconduct, [Gladney] must establish both misconduct and

prejudice.”). The indictment and the evidence at trial focused on Gladney’s use of

unauthorized product key codes, not his sales of counterfeit Microsoft products, as

the basis for the mail fraud and DMCA charges. Furthermore, any misstatements

were mitigated by the district court’s instruction that “arguments and statements by

lawyers are not evidence.”

      Finally, we assess a district court’s formulation of jury instructions for abuse

of discretion, unless the defendant failed to object at trial, in which case, the

instructions are reviewed for plain error. United States v. Chi Mak, 683 F.3d 1126,

1133 (9th Cir. 2012). Gladney contends that the district court erred by declining to

use his proposed jury instruction regarding the first sale doctrine. However, the

district court’s own instruction regarding that doctrine adequately informed the

jury of Gladney’s theory of the case to the extent that it was supported by the facts

and law. United States v. Faust, 850 F.2d 575, 583 (9th Cir. 1988) (“[A] defendant


                                            3
is not entitled to any particular form of an instruction so long as the instructions

given fairly and adequately cover his theories of defense.”).

      Gladney also contends that the district court’s instructions misstated the

definition of “circumvent a technological measure.” The challenged jury

instruction, however, defined “circumvent a technological measure” using the

DMCA’s exact language. Thus, the court’s instruction was not erroneous. United

States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008) (district court’s use of the

statutory definition of “technological measure” in jury instruction was not error).

      Gladney’s final claim that the district court’s jury instructions were

misleading is similarly unavailing. Gladney fails to show that the district court’s

use of language from the indictment was misleading, particularly where the district

court instructed the jury that the indictment was not evidence. See United States v.

Long, 706 F.2d 1044, 1056 (9th Cir. 1983) (“The district court did not err in

reading the indictment to the jury as they were cautioned that it was not

evidence.”).

      AFFIRMED.




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