                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 24 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-30156

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00008-WFN-36
 v.

KARLYNN ROMEO TONES,                             MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   15-30194

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00008-WFN-8
 v.

DONTA LYVOID BLACKMON,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   15-30200

              Plaintiff-Appellee,                D.C. No.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

                                          1
 v.                                              2:13-cr-00008-WFN-1

ARVIN TERRILL CARMEN,

              Defendant-Appellant.


                  Appeal from the United States District Court
                     for the Eastern District of Washington
                 Wm. Fremming Nielsen, District Judge, Presiding

                     Argued and Submitted December 3, 2018
                              Seattle, Washington

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

      Arvin Carmen, Karlynn Tones, and Donta Blackmon (“defendants”) appeal

their convictions for conspiracy to distribute controlled substances. Carmen also

appeals his conviction for participation in a continuing criminal enterprise

(“CCE”). The three were among sixty-two individuals charged with participating

in a large conspiracy to smuggle oxycodone pills from Los Angeles for distribution

in Spokane, Washington. On appeal, defendants raise twenty-two issues: twelve

common to all three, five specific to Carmen, three specific to Tones, and two

specific to Blackmon. None of their arguments is meritorious. We affirm

defendants’ convictions and sentences in full.




                                          2
                 I. ISSUES COMMON TO ALL DEFENDANTS

      1. Sufficiency of the Evidence. The district court correctly concluded that

sufficient evidence supported the jury’s guilty verdicts on the conspiracy charge.

See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010). Evidence is

sufficient to support a conviction if, viewed in the light most favorable to the

government, it would allow “any rational trier of fact to find the essential elements

of the crime beyond a reasonable doubt.” Id. The essential elements of conspiracy

to distribute a controlled substance are “(1) an agreement to accomplish an illegal

objective, and (2) the intent to commit the underlying offense.” United States v.

Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001).

      Here, the government introduced sufficient evidence to convict all three

defendants on the conspiracy charge. The evidence against Carmen included the

testimony of several co-defendants detailing how he recruited them and others to

sell oxycodone and smuggle cash for him. The evidence against Tones included

testimony from co-defendants and law enforcement officers describing his

involvement in Carmen’s organization as a distributor. The evidence against

Blackmon included testimony from co-defendants about how Carmen recruited

Blackmon into the organization and how Blackmon agreed to sell oxycodone for

Carmen. Viewed in the light most favorable to the government, this evidence was


                                           3
sufficient for a rational juror to conclude that defendants agreed to sell oxycodone

and intended to do so.

      2. Scope of Closing Argument. The district court was within its “great

latitude” and “broad discretion” in restricting the scope of defense counsel’s

closing arguments. United States v. Doe, 705 F.3d 1134, 1149 (9th Cir. 2013).

The indictment charged defendants and fifty-nine others with participating in a

single overarching conspiracy. Defense counsel sought to argue that not only did

defendants not participate in this overarching conspiracy, no such single

conspiracy existed—rather, there were only multiple smaller conspiracies. The

district court allowed the “multiple conspiracies” argument but did not permit

defense counsel to argue that the overarching conspiracy did not exist because, by

the time of trial, fifty-five indicted co-defendants had pleaded guilty to

participating in that conspiracy.

      We conclude that the district court acted within its discretion. Defendants

were permitted to vigorously argue their theory of defense: that they participated

only in separate conspiracies. In particular, they contended that the alleged

co-conspirators split into competing crews, that associations with Carmen were

temporary, and that there never was a single cohesive enterprise. Thus, the court’s




                                           4
limitation did not deny defendants “the right to make final arguments on [their]

theory of the defense.” Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999).

      3. Constructive Amendment of Count 2. The district court did not plainly

err by constructively amending Count 2 of the indictment in its instructions to the

jury. See United States v. Olano, 507 U.S. 725, 732 (1993). Count 2 alleges that

sixty-two named co-conspirators “and others not known to the Grand Jury”

conspired to distribute oxycodone. Defendants argue that the district court

deviated materially from the indictment by not requiring the trial jury to find that

each of the sixty-two persons named in the indictment participated in the

conspiracy. They cite no precedent from this or any other court vacating a

conspiracy conviction because the jury was not instructed to find that each

individual named in the indictment—including those not on trial who had already

pleaded guilty—participated in the conspiracy. Because they present a novel

theory of error, we conclude that no error could have been “plain”; that is, “clear

or obvious, rather than subject to reasonable dispute.” Puckett v. United States,

556 U.S. 129, 135 (2009).

      4. Specific Unanimity Instruction. Defendants argue that the district court

erred in not specifically instructing the jury to reach unanimous agreement on the

duration or membership of the overarching conspiracy. Below, defendants


                                           5
requested a specific unanimity instruction only as to the duration, so we review the

district court’s duration instruction for abuse of discretion, see United States v.

Franklin, 321 F.3d 1231, 1240–41 (9th Cir. 2003), and its membership instruction

for plain error, see Jones v. United States, 527 U.S. 373, 388 (1999). The district

court did not abuse its discretion in not giving a specific unanimity instruction on

the duration of the conspiracy because there was “no genuine possibility of juror

confusion or that a conviction may [have] occur[red] as the result of different

jurors concluding that the defendant committed different acts.” United States v.

Lapier, 796 F.3d 1090, 1099 (9th Cir. 2015). Of note, the indictment listed the

start and end dates of the conspiracy, and the evidence at trial fell within that time

period. See United States v. Anguiano, 873 F.2d 1314, 1320 (9th Cir. 1989).

Further, we conclude that the district court did not plainly err in not giving a

specific unanimity instruction on membership because defendants cite to no “clear

or obvious” authority requiring such an instruction. Puckett, 556 U.S. at 135.

      5. Overt Act Instruction. On de novo review, the district court did not err in

not requiring the jury to find an overt act in furtherance of the conspiracy. See

United States v. Anaya-Acosta, 629 F.3d 1091, 1093 (9th Cir. 2011) (per curiam).

The indictment charged defendants with conspiracy to distribute a controlled

substance “in violation of 21 U.S.C. § 846.” “In order to establish a violation of 21


                                           6
U.S.C. § 846, the Government need not prove the commission of any overt acts in

furtherance of the conspiracy.” United States v. Shabani, 513 U.S. 10, 15 (1994).

      6. Plea Agreements. The district court did not abuse its discretion by

limiting the scope of defense counsel’s cross-examination of cooperating witnesses

who had entered into plea agreements. See United States v. Larson, 495 F.3d

1094, 1101 (9th Cir. 2007) (en banc). Defendants contend that these limits

violated the Confrontation Clause. The district court permitted defense counsel to

ask these witnesses about the terms of their plea agreements, under which the

government would seek reduced sentences in exchange for truthful testimony, and

to establish that these witnesses had an incentive to testify. It did not permit

defense counsel to ask about the maximum or mandatory minimum penalties the

cooperating witnesses would have faced if they had stood trial and been convicted.

       We apply a three-factor test to determine whether limitations on cross-

examination violate a defendant’s Confrontation Clause rights: “(1) whether the

excluded evidence was relevant; (2) whether other legitimate interests outweighed

the defendant’s interest in presenting the excluded evidence; and (3) whether the

exclusion of evidence left the jury with sufficient information to assess the

credibility of the witness the defendant was attempting to cross-examine.” United

States v. Cazares, 788 F.3d 956, 983–84 (9th Cir. 2015). Here, the maximum and


                                           7
mandatory minimum penalties the cooperating witnesses faced were only slightly

relevant as impeachment evidence. The government had a significant interest in

not permitting testimony about the maximum or mandatory minimum penalties for

the very same crimes defendants were charged with, and defense counsel proffered

sufficient admissible impeachment evidence to permit the jury to properly evaluate

the credibility of the cooperating witnesses.

      Further, the district court did not violate the Confrontation Clause by

preventing defense counsel from asking a cooperating witness who had asserted his

Fifth Amendment privilege against self-incrimination about the specifics of

offenses for which he faced pending charges.

      7. Law Enforcement Reports. The district court did not abuse its discretion

in declining to admit statements of two cooperating witnesses in law enforcement

reports that they had not seen to impeach them or refresh their recollection. See

United States v. Beltran, 165 F.3d 1266, 1269 (9th Cir. 1999). Although we have

permitted “recollection [to] be refreshed from documents made by persons other

than the witness,” United States v. Landof, 591 F.2d 36, 39 (9th Cir. 1978), as a

general rule, a third party’s characterization of a witness’s statement is not

attributable to the witness for impeachment purposes. United States v. Leonardi,

623 F.2d 746, 757 (2d Cir. 1980). The district court took the correct approach by


                                           8
instructing defense counsel to ask the witnesses whether they had made the

statements in the reports, and if they denied making them, to call the law

enforcement officers who prepared the reports.

      8. Partial Courtroom Closure. The district court did not violate defendants’

Sixth Amendment right to a public trial by excluding co-defendant Mercedes

Reeves and her associates from the courtroom after one associate made a

threatening gesture toward a testifying witness. A district court may order a partial

courtroom closure—the exclusion of specific individuals—that is “narrowly

tailored . . . to satisfy the purpose for which it was ordered” if the judge (1) holds a

hearing on the closure, (2) makes factual findings to support the closure, and

(3) considers reasonable alternatives to closure. United States v. Sherlock, 962

F.2d 1349, 1357–59 (9th Cir. 1989). Here, the district court held a hearing and

published a detailed order narrowly tailoring the closure to Reeves and her

associates. The order contained a detailed analysis of facts, including Reeves’s

inappropriate conduct, and gave full consideration to Reeves’s motion to lift the

closure. Thus, there was no Sixth Amendment violation.

      9. Mixed Fact and Opinion Testimony. The district court’s jury instructions

distinguishing between fact and opinion testimony did not constitute plain error.

Jones, 527 U.S. at 388. At trial, three law enforcement officers gave both fact and


                                            9
opinion testimony. The district court explained the distinction between the types

of testimony informally during trial and formally during jury instructions but did

not use the model instructions on fact and opinion testimony. “[T]he ultimate

responsibility for assuring the reliability of expert testimony and for instructing the

jury on how to evaluate case agent dual role testimony rests with the district court.”

United States v. Torralba-Mendia, 784 F.3d 652, 659 (9th Cir. 2015) (citation

omitted). We are satisfied that the district court fulfilled this responsibility.

      10. Summary Slideshow of Telephone Records. The district court did not

abuse its discretion in permitting a government analyst witness to refer to a

slideshow that summarized voluminous telephone records. See United States v.

Anekwu, 695 F.3d 967, 981 (9th Cir. 2012). Defendants argue that the slideshow

was inadmissable hearsay and that the analyst who presented the slideshow gave

opinion evidence based on hearsay. However, the district court did not permit the

analyst to give opinion testimony, and defense counsel did not make any

substantive objections to the analyst’s fact testimony. Further, defendants’ hearsay

argument lacks merit. The district court did not admit the slideshow into

evidence—it allowed the jury to see it only as a summary accompanying live

testimony. Defendants stipulated to the authenticity of the underlying toll records,

which fit within the hearsay exception for business records. And they did not


                                            10
object to the foundation for attributing each phone to a person, which was laid

throughout trial.

      11. Wiretap Evidence. On de novo review, the district court did not err in

admitting evidence the government obtained from wiretaps of six telephones. See

United States v. Reyna, 218 F.3d 1108, 1110 (9th Cir. 2000). Title III of the

Omnibus Crime Control and Safe Street Act of 1968 allows a district court to

authorize a wiretap where the government has met particularity, probable cause,

and necessity requirements. 18 U.S.C. § 2518.

      On the particularity prong, defendants point to no authority requiring the

government to describe the drug-trafficking operation to be targeted by the

wiretaps. See United States v. Kahn, 415 U.S. 143, 151 (1974) (requiring that the

specific person targeted by the investigation be named but not requiring details on

the structure of the suspected criminal organization).

      On the probable cause prong, defendants principally argue that the

government proffered insufficient facts to establish probable cause for the wiretap

of Target Telephone 1 (TT1). The government was required to establish that:

(1) an individual was committing, had committed, or was about to commit drug

trafficking offenses; (2) relevant communications would be intercepted; and (3)

the targeted individual would use the targeted phone. United States v. Meling, 47


                                          11
F.3d 1546, 1551–52 (9th Cir. 1995). The government satisfied this burden by

providing evidence from six confidential sources, including one who discussed an

oxycodone transaction with the targeted individual on the line to be tapped and two

who observed her distributing oxycodone.

      On the necessity prong, the government was required to submit “a full and

complete statement” as to whether or not other investigative procedures have been

tried and failed or why they appear reasonably unlikely to succeed or be too

dangerous. See United States v. Gonzalez, Inc., 412 F.3d 1102, 1111 (9th Cir.

2005). The necessity requirement is “directed to the objective of the investigation

as a whole and not to any particular person.” United States v. Reed, 575 F.3d 900,

911 (9th Cir. 2009). The government’s affidavit, which extensively detailed the

various methods of traditional surveillance it employed, more than satisfied this

requirement.

      Because the TT1 wiretap was lawful, we reject defendants’ argument that

the other wiretaps were unlawful as “fruits of the poisonous tree.”

      12. Cumulative Error. As we have identified no error on the above

questions, defendants’ cumulative error argument is not relevant.




                                         12
                       II. ISSUES SPECIFIC TO CARMEN

      1. Continuing Criminal Enterprise (CCE) Charge. The district court did

not plainly err in its general jury instruction on the CCE charge. See United States

v. Jerome, 942 F.2d 1328, 1331 (9th Cir. 1991). To convict Carmen of the CCE

offense, the government was required to prove that he organized, supervised, or

managed five or more other persons as part of a continuing series of violations of

federal narcotics law. Id. at 1330; see 21 U.S.C. § 848(c)(2). The government

named twenty-three individuals who Carmen may have organized, supervised, or

managed, first in writing to the district court and then to the jury. Carmen argues

that, as a matter of law, at least some of these individuals could not have been

organized, supervised, or managed by him, and that the jury’s general verdict

cannot stand if it may have relied upon a legally erroneous finding.

      We conclude that the government laid sufficient foundation at trial to

support an inference that each of the twenty-three named individuals may have

been organized, supervised, or managed by Carmen within the meaning of

§ 848(c)(2). Thus, the district court did not err in accepting a general verdict of

guilty on the CCE charge, as the jury could have permissibly chosen any five of the

twenty-three named individuals as the five required persons subject to Carmen’s

control.


                                          13
      2. Specific Unanimity Instruction on CCE Charge. Further, the district

court did not plainly err in its specific unanimity instruction on the CCE charge.

Carmen argues that the instruction misled the jury by directing it to unanimously

agree on which of Carmen’s confederates were involved in the criminal enterprise

instead of which ones Carmen had organized, supervised, or managed. In context,

this argument is without merit, as the challenged instruction contains two

references to the requirement that Carmen organize, supervise, or manage five

persons, and the jury’s verdict form required it to find that Carmen “acted as an

organizer, supervisor or manager of at least five or more persons with all [jurors]

agreeing as to the specific five or more persons.”

      3. Government’s Change in Theory. The district court did not plainly err in

allowing the government to advance a theory of its case that differed from the

theory it described in a letter it produced during discovery. We decline to construe

this letter as a bill of particulars because the district court denied Carmen’s request

for a bill before trial. Carmen cites no authority which suggests the district court

erred; thus, we find no “clear or obvious” error. Puckett, 556 U.S. at 135.

      4. Constructive Amendment of Count 1. The district court did not plainly

err by constructively amending Count 1 of the indictment, which charged Carmen

with the CCE offense. The indictment listed three narcotics violations sufficient to


                                           14
support a conviction on Count 1. Jury Instruction 7 repeated these three violations

and added the conspiracy to distribute controlled substances violation that the

indictment charged in Count 2. We have held that a CCE indictment does not need

to enumerate every specific offense that may support a jury’s finding on the

“continuing series of violations” element. United States v. Hernandez-Escarsega,

886 F.2d 1560, 1578 (9th Cir. 1989). There is thus no plain error.

      5. Possession with Intent to Distribute. Carmen asks us to review the

sufficiency of the evidence underlying his conviction for possession of a controlled

substance with intent to distribute. However, Carmen concedes that he did not file

a notice of appeal on this count. Because “[a]n appeal permitted by law as of right

. . . may be taken only by filing a notice of appeal with the district clerk within the

time allowed by Rule 4,” Manrique v. United States, 137 S. Ct. 1266, 1271 (2017)

(emphasis in original) (quoting Fed. R. App. P. 3), we do not reach this question.

                         III. ISSUES SPECIFIC TO TONES

      1. Post-Arrest Interview Video. Tones contends that the government

violated his Fifth Amendment right to a fair trial by playing a video of his post-

arrest interview with two police officers. As he did not object to this video below,

we review for plain error. See Olano, 507 U.S. at 732. To the extent that any plain

error exists here, we conclude that it is more probable than not that the error did


                                           15
not materially affect the verdict and thus was harmless. See United States v.

Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).

      In the arrest video, the officers accuse Tones of lying and suggest that he is

guilty of drug offenses. Tones argues that the officers’ statements are hearsay and

are an impermissible direct opinion on the ultimate question of his guilt or

innocence. See United States v. Kinsey, 843 F.2d 383, 388 (9th Cir. 1988). Even if

we assume that the district court plainly erred, the video was a very small part of

the government’s case, and we may conservatively conclude that the jury’s guilty

verdict in no way depended on the officers’ recorded insinuation that Tones was

guilty. One of the two officers in the video testified at trial to the facts underlying

the opinion of guilt he expressed on tape, and there was an overwhelming amount

of testimonial and forensic evidence of Tones’s guilt that he does not contest on

appeal.

      2. Confrontation Clause. Tones further argues that the officers’ statements

in the video were testimonial evidence against him, and the Confrontation Clause

guaranteed him the opportunity to cross-examine both officers. Because the

government only produced one of the two officers as a trial witness, Tones

contends that admission of the other officer’s statements on video violated his

Sixth Amendment rights. To the extent that such a violation occurred, we find it


                                           16
harmless beyond a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 673,

684 (1986).

      Our analysis of whether a Confrontation Clause error was harmless includes

“the importance of the witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the extent of cross-

examination otherwise permitted, and, of course, the overall strength of the

prosecution’s case.” Id. Here, the testimony was unimportant, cumulative, and

corroborated by trial testimony on all points: the government played the video

while one of the two officers was on the witness stand, and this officer answered

additional questions from both government and defense lawyers about the

investigation and interview. Tones does not argue that the absent officer’s

recorded statements were materially distinguishable from the testifying officer’s.

Finally, the government’s overall case, which included wiretap evidence and

testimony from Tones’s co-defendants, was very strong. Any Confrontation

Clause error was thus harmless.

      3. Sentencing. Tones argues that the district court erred in calculating his

Guidelines offense level because it relied on an inaccurate estimate of the number

of pills he and his partner sold in their jointly undertaken criminal activity. The


                                          17
district court committed no such error: it relied on a pre-sentence investigative

report (“PSR”) that evaluated the trial evidence and made conservative estimates of

the number of pills Tones and his partner sold to testifying witnesses and

confidential sources. Critically, the district court did not blindly adopt the PSR’s

recommendations but satisfied its obligation to resolve factual disputes by

addressing Tones’s objections at a hearing.

      Further, the district court did not clearly err in declining to apply a

downward adjustment to Tones’s offense level for acceptance of responsibility.

See United States v. Cantrell, 433 F.3d 1269, 1284 (9th Cir. 2006). This

adjustment “is not intended to apply to a defendant who puts the government to its

burden of proof at trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1,

cmt. n.2.

                     IV. ISSUES SPECIFIC TO BLACKMON

      1. Career Offender Designation. On de novo review, the district court did

not err in sentencing Blackmon as a career offender under U.S.S.G. §§ 4B1.1 and

4B1.2. See United States v. Kelly, 422 F.3d 889, 891–92 (9th Cir. 2005). A career

offender is one with two or more past felony convictions for “crimes of violence”

or controlled-substance offenses. U.S.S.G. § 4B1.1(a). Blackmon has a prior


                                           18
conviction in Washington state for kidnapping in the first degree, and the

Application Notes following § 4B1.2 instruct us to consider “kidnapping” as a

crime of violence. Upon review of the Washington kidnapping statute, Wash. Rev.

Code § 9A.40.020, we conclude that Blackmon’s conviction qualifies as a crime of

violence under § 4B1.1(a) (2014). Blackmon’s second qualifying predicate

conviction is a marijuana offense in violation of California Health & Safety Code §

11359. See United States v. Sandoval-Venegas, 292 F.3d 1101, 1107 (9th Cir.

2002) (recognizing this offense as “comfortably fit[ting] within the Guidelines

definition” of a controlled-substance offense). Because California defined this

offense as a felony at the time it convicted Blackmon, and continued to do so at the

time he was sentenced in this case, it is immaterial that California has since

reclassified this crime as a misdemeanor and that Blackmon successfully petitioned

to have the conviction reduced to a misdemeanor. See United States v. Diaz, 838

F.3d 968, 972 (9th Cir. 2016) (a state’s retroactive adjustment of penalties does not

“rewrite history for purposes of the administration of the federal criminal law”).

      2. Severance. Blackmon argues that the district court abused its discretion

in failing to sever the defendants’ trials. This argument is meritless because he has

presented no evidence that the joint trial was “so manifestly prejudicial” as to leave




                                          19
the district court with no choice but to order separate trials. United States v.

Barragan, 871 F.3d 689, 701 (9th Cir. 2017).

                                       *   *    *

      For the foregoing reasons, each defendant’s conviction and sentence is

AFFIRMED.1




      1
        Carmen’s motion to supplement the record on (Dkt. No. 59), filed June 19,
2017, is GRANTED.

                                           20
