                                                                           FILED
                           NOT FOR PUBLICATION                             JUN 01 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30304

              Plaintiff - Appellee,              D.C. No. 3:13-cr-00034-RRB-2

 v.
                                                 MEMORANDUM*
JARED THOMAS BOWERS,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-30305

              Plaintiff - Appellee,              D.C. No. 3:13-cr-00034-RRB-1

 v.

CHRISTOPHER THOMAS MEJIA,

              Defendant - Appellant.


                   Appeals from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                        Argued and Submitted May 12, 2015
                                Anchorage, Alaska

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                          Page 2 of 5


Before: CANBY, BYBEE, and WATFORD, Circuit Judges.

      1. The government introduced sufficient evidence to support Bowers’ and

Mejia’s convictions for conspiracy to possess heroin with intent to distribute,

attempted possession of heroin with intent to distribute, and use of a firearm in

connection with a drug trafficking offense.

      With respect to the conspiracy charge, the evidence presented at trial proved

more than mere buyer-seller relationships among the key players. Viewed in the

light most favorable to the government, the evidence linked Bowers to the

telephone number that Marmolejos called whenever he had questions about a sale.

Bowers drove Marmolejos to at least one drug deal; after a second, Marmolejos

went to Bowers’ home; and after a third, Marmolejos went to a restaurant where

Bowers’ car was parked. A reasonable jury could have inferred that Bowers was

not merely selling to Marmolejos but instead was directing Marmolejos’ activities.

As for Mejia, a reasonable jury could have concluded that Marmolejos’ statements

about Mejia as a possible source, the 161 calls from Mejia to a telephone number

associated with Bowers, and Mejia’s facilitation of a large drug deal with Bowers

and a third party showed that the three participants were co-conspirators, not

merely associates.
                                                                            Page 3 of 5
      The government also presented sufficient evidence for a reasonable jury to

convict both defendants of the attempt charge. Bowers and Mejia were arrested

shortly after arriving at the location of a pre-arranged drug deal with close to

enough cash on hand to consummate the deal.

      Finally, the government presented sufficient evidence to convict both

Bowers and Mejia of the firearm offense. A reasonable jury could have found that

either Bowers or Mejia possessed the gun found in the car and that the other was

responsible through principles of Pinkerton liability. See United States v. Fonseca-

Caro, 114 F.3d 906, 907–08 (9th Cir. 1997) (per curiam).

      2. The jury instructions given at trial adequately covered the defense’s

theory of the case. A multiple conspiracies instruction was not warranted, as the

actions of the conspirators in evidence could be traced to an overall agreement

among them. See United States v. Fernandez, 388 F.3d 1199, 1248 n.34 (9th Cir.

2004). The district court did not abuse its discretion in concluding that the

standard conspiracy instruction, modified to specify that the co-conspirators must

have intended to distribute “to another,” sufficed to clarify that a buyer-seller

relationship was insufficient.

      3. The district court did not abuse its discretion in admitting Marmolejos’

statements through Officer Peronto’s testimony. As detailed above, the
                                                                              Page 4 of 5
government presented sufficient independent evidence of a conspiracy among

Bowers, Mejia, and Marmolejos. Marmolejos’ statements were made during the

course of the conspiracy, and Mejia’s arrest occurring before some of those

statements were made does not change that fact. See United States v. Taylor, 802

F.2d 1108, 1117 (9th Cir. 1986). Finally, the district court did not clearly err in

finding that Marmolejos’ statements furthered the conspiracy. For example, the

statements made on February 26, 2013, could have helped Marmolejos win

Peronto’s confidence in order to complete another drug deal.

         4. The district court did not abuse its discretion by refusing to declare a

mistrial after Peronto testified that a digital scale had been found on Bowers. The

prosecution withdrew the offending testimony immediately, and the district court

gave a forceful curative instruction. The jury heard extensive evidence linking

Bowers to the drug trade, including the fact that Bowers was arrested shortly

before consummating a major drug deal with a gun and tens of thousands of dollars

in cash. The testimony about the digital scale did not impermissibly taint the entire

trial.

         5. We also reject Bowers’ challenges to his sentence. The district court did

not clearly err in giving Bowers a two-level leadership enhancement under

U.S.S.G. § 3B1.1(c), as the evidence presented at trial suggested that Bowers
                                                                           Page 5 of 5
directed Marmolejos’ activities. The evidence also supported attributing at least

550 grams of heroin to Bowers—the amount sold to Peronto by Marmolejos and

the amount Mejia and Bowers had arranged to buy from the confidential source.

Any error in attributing the remaining drug quantities to Bowers was harmless. See

United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per

curiam). Bowers’ sentence of 84 months on the drug offenses would have been a

downward departure even under a Guidelines calculation that excluded those

quantities, see U.S.S.G. ch. 5, pt. A (Sentencing Table) (2013), and the district

court explained the chosen sentence adequately, noting that he was giving Bowers

a sentence that was “just punishment considering the totality of the circumstances”

as well as “sufficient but not greater than necessary to satisfy the sentencing

goals.”

      AFFIRMED.
