                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 17 2014

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

UNITED STATES OF AMERICA,                        No. 13-50025

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00548-PA-1

  v.
                                                 MEMORANDUM*
AARON SANDUSKY, AKA Aaron
Tucker,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                            Submitted March 3, 2014**
                               Pasadena, California

Before: BYBEE, BEA, and IKUTA, Circuit Judges.

       Defendant Aaron Sandusky appeals his convictions under 21 U.S.C. §§ 846

and 841(a)(1), as well as his sentence to 120 months’ imprisonment. We have

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

        *
             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).
      It is unclear whether Sandusky asserts a claim of vindictive or selective

prosecution. Regardless of the theory he advances, our review is de novo. United

States v. Kent, 649 F.3d 906, 912 (9th Cir. 2011); United States v. Sutcliffe, 505

F.3d 944, 954 (9th Cir. 2007). Assuming that Sandusky intended to assert

vindictive prosecution, his claim fails because he has not adduced evidence

indicating even the appearance of vindictiveness. United States v. Montoya, 45

F.3d 1286, 1299 (9th Cir. 1995). What is more, Sandusky has not alleged any

improper motive attributable to the federal government. United States v. Culliton,

328 F.3d 1074, 1081 (9th Cir. 2003) (“[T]here is nothing inappropriate or

vindictive about a state law enforcement agency referring potential violations of

federal law to federal authorities.”). Assuming that Sandusky intended to assert

selective prosecution, his claim fails because he has not identified other similarly

situated individuals who have not been prosecuted. Sutcliffe, 505 F.3d at 954.

Moreover, as just noted, Sandusky has not alleged an impermissible motive. Id.;

Culliton, 328 F.3d at 1081. Therefore, the district court properly denied

Sandusky’s pretrial motion to dismiss the indictment.

      Sandusky argues that the government lacked power under the Commerce

Clause to prosecute him and that the Tenth Amendment forbade such prosecution.

“We review de novo the district court’s determination of the constitutionality of a


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federal statute.” United States v. Jones, 231 F.3d 508, 513 (9th Cir. 2000). Here,

binding precedent squarely forecloses Sandusky’s arguments. Gonzales v. Raich,

545 U.S. 1, 22, 29-33 (2005); Raich v. Gonzales, 500 F.3d 850, 867 (9th Cir.

2007).

      Sandusky claims that the district court deprived him of a fair trial by

excluding all evidence of entrapment by estoppel. “A district court’s decision to

exclude evidence of a particular defense is reviewed de novo. A district court may

preclude a defense if the defendant fails to make a prima facie showing that he is

eligible for the defense.” United States v. Schafer, 625 F.3d 629, 637 (9th Cir.

2010) (citation omitted). The district court properly excluded an entrapment by

estoppel defense in this case. No authorized government official ever affirmatively

told Sandusky that his marijuana operations were permissible. Id. In addition, the

fact that Sandusky incorporated G3 Holistic on October 6, 2009, conclusively

establishes that he did not rely on any government action that occurred thereafter.

Id. Finally, the record demonstrates that Sandusky was never actually misled.

United States v. Tallmadge, 829 F.2d 767, 775 n.1 (9th Cir. 1987). For example, in

a July 2, 2010, interview, Sandusky acknowledged that marijuana “[was] still an

illegal drug” and that he could go to jail. Accordingly, the district court properly




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granted the government’s motion in limine with regard to Sandusky’s asserted

entrapment by estoppel defense.

       Sandusky claims that his 120-month mandatory minimum sentence was not

supported by sufficient evidence. “When properly preserved, we review

sufficiency-of-evidence challenges by asking whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United

States v. King, 735 F.3d 1098, 1106 (9th Cir. 2013). Because Sandusky failed to

preserve his sufficiency-of-evidence challenge, however, we apply plain-error

review. Id. “Under plain-error review, reversal is permitted only when there is (1)

error that is (2) plain, (3) affects substantial rights, and (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (internal

quotation marks and citation omitted). At trial, Sandusky’s co-conspirators testified

that they were involved in growing and distributing more than 1,000 plants for

Sandusky. Government agents also testified that they collectively seized more than

1,000 plants during the November 2011 search of the Ontario warehouse. Viewing

this evidence in the light most favorable to the prosecution, a rational jury easily

could have found that the government proved the existence of 1,000 plants under

counts one and two of the indictment. Consequently, there was no plain error.


                                            4
      Sandusky contends that the district court improperly excused “jurors who

never exactly said that they would definitely vote against the Government no

matter what.” A district court’s decision to excuse a juror for cause is reviewed for

abuse of discretion. United States v. Lindsey, 634 F.3d 541, 553 (9th Cir. 2011).

The district court excused only those jurors who said either that they could not be

impartial or that they were uncertain whether they could be impartial. Where these

prospective jurors represented to the court that they could not be impartial, the

district court necessarily acted within its broad discretion to excuse a juror for

cause. Even where these prospective jurors were ambiguous about whether they

could be impartial, the district court acted within its discretion to excuse a juror for

cause. Uttecht v. Brown, 551 U.S. 1, 7 (2007). Therefore, because none of the

excused jurors unambiguously stated that he could be impartial, none of the district

court’s decisions in voir dire can be deemed an abuse of discretion.

      AFFIRMED.




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