                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            NOV 09 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 15-10203

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00148-JAD-GWF-2
 v.

ALEXIS TORRES SIMON,                             MEMORANDUM*
                                                  and
              Defendant-Appellant.               ORDER


                    Appeal from the United States District Court
                              for the District of Nevada
                    Jennifer A. Dorsey, District Judge, Presiding

                      Argued and Submitted October 21, 2016
                            San Francisco, California

Before: GRABER and MURGUIA, Circuit Judges, and O’CONNELL,** District
Judge.

      Defendant Alexis Torres Simon and two co-defendants conspired with a

confidential informant to rob drugs from a delivery van’s driver, by abducting him

and stealing his van. When arrested, en route to commit that crime, Simon was in


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Beverly Reid O’Connell, United States District Judge for
the Central District of California, sitting by designation.
possession of a firearm. Simon and a co-defendant also engaged in three earlier

completed thefts. A jury convicted Simon of conspiracy to interfere with

commerce by robbery, in violation of 18 U.S.C. § 1951; possession of a firearm by

a felon, in violation of 18 U.S.C. § 922(g); conspiracy to commit theft in an

interstate shipment, in violation of 18 U.S.C. § 371; and three counts of theft from

an interstate shipment, in violation of 18 U.S.C. § 659. The district court then

sentenced him to 192 months’ imprisonment. With the exception of one

sentencing issue, on which we defer ruling, we affirm.

      1. Simon challenges the sufficiency of the evidence to support his

conviction on Count 6, which alleged illegal possession of a firearm by a felon.

Having failed to raise this argument in the district court, he did not preserve the

issue. Therefore, we review for plain error. United States v. Sullivan, 797 F.3d

623, 632 n.5 (9th Cir. 2015), cert. denied, 136 S. Ct. 2408 (2016). There was no

error because a reasonable jury could find, beyond a reasonable doubt, that Simon

committed the offense. For instance, Simon was recorded the day before the

robbery, stating that he had a gun and planned to clean it that night so that it

"doesn’t matter if it gets lost," and Simon told "confidential human source" Corona

on the morning of the robbery that he had a gun. The jury was permitted to credit

Corona’s testimony, and we "must respect the province of the jury to ascertain the


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credibility of witnesses." United States v. Stewart, 420 F.3d 1007, 1015 (9th Cir.

2005) (internal quotation marks omitted).

      2. Simon argues that the district court erred by excluding certain proffered

evidence concerning Special Agent Christensen and Corona, and by limiting the

opportunity to question Christensen about his compliance with FBI Guidelines.

We review for abuse of discretion the district court’s exclusion of evidence.

United States v. Backman, 817 F.3d 662, 665 (9th Cir. 2016). Simon also argues

that the exclusion of the disputed evidence amounted to a due process violation

because it deprived him of a defense. We review that claim de novo. United

States v. Bahamonde, 445 F.3d 1225, 1228 n.2 (9th Cir. 2006).

      After carefully considering all of the proffered evidence and the testimony at

trial, we conclude that the district court did not abuse its discretion in excluding the

evidence under Federal Evidence Rule 403. For example, the probative value of

photographs posted on Corona’s Facebook page was substantially outweighed by

the risk of unfair prejudice. Similarly, the probative value of the state prosecutor’s

recollection about whether Christensen made a formal recommendation of

probation for Corona was substantially outweighed by the potential for juror

confusion, undue delay, and cumulative evidence. Extensive evidence

demonstrated that, because of Christensen’s efforts, Corona received a significant


                                            3
benefit in state court from his assistance. Even assuming that the details of what

others recalled about what Christensen said, to whom, and when were probative as

to Christensen’s bias and credibility, the court did not abuse its discretion in

concluding that those details were very far removed from the issues relevant at trial

and, accordingly, caused too great a risk of confusion and delay.

       Simon’s constitutional argument also fails:

             While the Constitution . . . prohibits the exclusion of defense
       evidence under rules that serve no legitimate purpose or that are
       disproportionate to the ends that they are asserted to promote,
       well-established rules of evidence permit trial judges to exclude
       evidence if its probative value is outweighed by certain other factors
       such as unfair prejudice, confusion of the issues, or potential to
       mislead the jury. See, e.g., Fed. Rule Evid. 403.

Holmes v. South Carolina, 547 U.S. 319, 326 (2006). Simon was not deprived of a

defense because he and his co-defendants introduced much evidence on the subject

of the relationship between Christensen and Corona and much evidence on the

subject of their lack of credibility. Simon had the opportunity to, and did, cross-

examine both Christensen and Corona, and he could and did argue vigorously to

the jury that they lied.

       3. Simon’s challenge to the district court’s failure to strike a particular juror

for cause is foreclosed by precedent. The juror was stricken through a peremptory

strike. The exercise of a peremptory strike precludes an argument that the same


                                            4
juror should have been removed for cause. United States v. Martinez-Salazar, 528

U.S. 304, 317 (2000).

      4. Next, Simon contends that the prosecutor impermissibly commented

twice, during rebuttal closing argument, on Simon’s silence, in violation of Griffin

v. California, 380 U.S. 609, 615 (1965). As to one of the statements, we review for

abuse of discretion because Simon objected, but as to the other we review for plain

error because there was no objection. United States v. Stinson, 647 F.3d 1196,

1211 (9th Cir. 2011); United States v. Doss, 630 F.3d 1181, 1193 (9th Cir. 2011).

We see no error. Neither statement, when considered in context, is reasonably

understood as having commented on Simon’s silence. Moreover, the court gave an

appropriate instruction following the objection to one of the statements.

      5. Simon argues that the district court erred in various ways in its handling

of Agent Easter’s testimony concerning the probable locations of cell phones used

by Simon and his co-defendants during one of the thefts. Because Simon did not

preserve any of the arguments he makes on appeal, we review for plain error. Fed.

R. Crim. P. 52(b). Under the standard for plain error, United States v. Olano, 507

U.S. 725, 734 (1993), we find none, including in the district court’s determination

that the testimony was reliable.




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      6. With respect to his sentence, Simon asserts that the district court erred in

applying a two-level enhancement under U.S.S.G. § 3B1.1(c) for being an

organizer or leader of criminal activity. The district court did not err. Among

other acts demonstrating his leadership role, Simon arranged for one of the co-

defendants to be added to the conspiracy in the final hours before the planned

abduction, and he instructed Corona on how to meet up with the co-defendant,

where to park, where to drive, what car to use, and other details.

      7. Finally, Simon argues that the district court committed a procedural error

at sentencing by applying U.S.S.G. § 2X1.1. In Simon’s view, the court was

required to apply U.S.S.G. § 2B3.1. The district court applied several

enhancements through operation of § 2X1.1 that likely would not have applied

under § 2B3.1. We defer ruling on that issue.

      Convictions AFFIRMED. Future proceedings in this case are stayed until

further order of the court. Petitions for rehearing and petitions for rehearing en

banc may be filed under the ordinary deadlines, but any petition may address only

the issues resolved in this disposition.




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