                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 18 2010

                                                                       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,                        Nos. 08-10110
                                                      08-10444
             Plaintiff - Appellee,                    08-10453
                                                      08-10454
  v.                                                  08-10530

LEONARDO BURGOS-VALENCIA;                        D.C. No. CR-05-00125-
JULIO MARIO HARO-VERDUGO;                        DCB(BPV)
SERGIO ANTONIO HARO; and
LORENIA HARO,
                                                 MEMORANDUM *
             Defendants - Appellants.



                   Appeals from the United States District Court
                            for the District of Arizona
                     David C. Bury, District Judge, Presiding

                       Argued and Submitted March 8, 2010
                            San Francisco, California

Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.

       Defendants Leonardo Burgos-Valencia, Julio Mario Haro-Verdugo, Sergio

Antonio Haro, and Lorenia Haro were each convicted of several drug offenses for

their involvement in cocaine or marijuana smuggling. Defendants appeal their



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
convictions and sentences. With the exception of two convictions that violate

Burgos-Valencia’s double jeopardy rights, we affirm.

      1. Defendants first argue that the district court erred by denying their

motion to dismiss the indictment on double jeopardy grounds after a mistrial. We

review de novo the district court’s denial of the motion but review for clear error

the court’s underlying factual findings. United States v. Castillo-Basa, 483 F.3d

890, 895 (9th Cir. 2007).

      The district court erroneously denied the motion as untimely, United States

v. Gamble, 607 F.2d 820, 822-23 (9th Cir. 1979), but we may affirm on any

ground supported by the record, United States v. Davis, 336 F.3d 920, 922 (9th

Cir. 2003). The district court found that the prosecutor did not intend to provoke a

mistrial. This finding was not clearly erroneous. The prosecutor’s question to the

witness was proper, and Defendants’ reactions to the prejudicial testimony did not

suggest to the court that they suspected an intentional goad. Oregon v. Kennedy,

456 U.S. 667, 676 (1982). Even though the early days of the trial had not gone

well for the prosecutor, the district court was not required to infer an intent to

provoke a mistrial. United States v. Lun, 944 F.2d 642, 645-46 (9th Cir. 1991).




                                           2
      2. Burgos-Valencia and Lorenia Haro argue that the district court erred by

denying their motions to sever. We review for abuse of discretion. United States

v. Decoud, 456 F.3d 996, 1008 (9th Cir. 2006).

      Burgos-Valencia did not waive his right to appeal this issue. It would have

been an unnecessary formality for him to have renewed his motion at the close of

evidence, id., because the district court refused his request for the less drastic

remedy of a limiting instruction regarding the evidence that Burgos-Valencia

believed was unfairly prejudicial. However, Lorenia Haro did not renew her

motion after the introduction of prejudicial evidence, and she points to nothing

showing that the renewal of the motion during or at the close of evidence would

have been an unnecessary formality. Lorenia Haro therefore waived her right to

appeal the denial of her motion for severance. Id. (Even if her right to appeal were

not waived, her appeal would fail on the merits, for reasons similar to those

discussed below with respect to Burgos-Valencia.)

      The circumstances of the trial did not require granting Burgos-Valencia’s

motion to sever. The evidence of firearms and violence was admissible against

Burgos-Valencia under the government’s theory of Pinkerton liability. Pinkerton

v. United States, 328 U.S. 640, 647-48 (1946); United States v. Cruz, 127 F.3d

791, 799 (9th Cir. 1997), abrogated on other grounds by United States v. Jimenez


                                            3
Recio, 537 U.S. 270 (2003). The evidence was not unduly complex or

voluminous. United States v. Baker, 10 F.3d 1374, 1389-90 (9th Cir. 1993),

overruled in part on other grounds by United States v. Nordby, 225 F.3d 1053 (9th

Cir. 2000). The district court employed safeguards against spill-over prejudice,

including juror notebooks, general limiting instructions, and instructions specific to

the inadmissibility of particular evidence against Burgos-Valencia. United States

v. Fernandez, 388 F.3d 1199, 1243 (9th Cir. 2004). The acquittal of some

Defendants on some counts suggests that the jury was able to compartmentalize the

evidence.

      3. Sergio Haro, Lorenia Haro, and Julio Haro-Verdugo argue that the

district court erred in allowing a law enforcement agent to testify as both an expert

and a lay witness after inadequate expert disclosure under Federal Rule of Criminal

Procedure 16(a)(1)(G) and without adequate "gatekeeping" by the court. We

review for abuse of discretion. United States v. Freeman, 498 F.3d 893, 900-01

(9th Cir. 2007).

      The district court did not abuse its discretion in ruling that the prosecution’s

trial memorandum and expert witness disclosure provided Defendants with the

necessary summary; this circuit does not require great detail in a Rule 16

disclosure. Defendants were not prejudiced because the prosecutor informed them


                                          4
that the expert testimony would be translation of coded conversations.

Furthermore, the testimony was not an abuse of discretion under Freeman. A

witness may permissibly testify as both an expert and a lay witness. Id. at 904.

Here, the district court avoided jury confusion by sustaining objections and

admonishing counsel about the different kinds of evidence. Finally, the district

court instructed the jury that it need not believe the testimony of an expert witness

or of any witness.

      4. Lorenia Haro argues that the district court erred by denying her motion

for acquittal on the cocaine and marijuana conspiracies and on the charge of

possession with intent to distribute cocaine. We review de novo. United States v.

Mahan, 586 F.3d 1185, 1187 n.2 (9th Cir. 2009).

      There was sufficient evidence that the conspiracies existed and that Lorenia

Haro had at least a "slight connection" to each conspiracy. United States v.

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

Sainz and George Mares implicated Lorenia Haro in the cocaine and marijuana

conspiracies, respectively. Wiretapped conversations revealed that Lorenia Haro

assisted with leasing the Kino Springs house and that she smuggled money across

the border. Physical evidence in Lorenia Haro’s purse, bedroom, and closet linked

her to the drug smuggling operations.


                                           5
      Because the jury properly convicted Lorenia Haro of the cocaine conspiracy,

it could convict her of cocaine possession offenses under Pinkerton, 328 U.S. at

647-48. There was sufficient evidence to find her co-conspirators guilty; to find

that the offenses were in furtherance of, and within the scope of, the charged

conspiracy; and to find that the offenses were reasonably foreseeable.

      5. Burgos-Valencia argues that the district court erred by denying his

motion for acquittal of engaging in a continuing criminal enterprise in violation of

21 U.S.C. § 848(a). We review de novo. Mahan, 586 F.3d at 1187 n.2.

      There was sufficient evidence that Burgos-Valencia occupied a position of

managerial responsibility over at least five other persons. Managing an

intermediary, who in turn manages at least four other persons, constitutes

managing at least five persons. United States v. Delgado, 4 F.3d 780, 785 (9th Cir.

1993). The intercepted conversations provided sufficient evidence for a reasonable

jury to conclude beyond a reasonable doubt that Burgos-Valencia exercised

managerial responsibility over Sergio Haro, who in turn managed at least four

other persons to transport marijuana.

      6. Burgos-Valencia argues that the district court erred by denying his

motion for acquittal of knowingly using a minor to possess with intent to distribute

marijuana, in violation of 21 U.S.C. § 861(a). We review de novo. Mahan, 586


                                          6
F.3d at 1187 n.2. Under Pinkerton, Burgos-Valencia can be held vicariously liable

for Sergio Haro’s employment of minors to transport the marijuana. 328 U.S. at

647-48. There was sufficient evidence that Sergio Haro knowingly used minors.

That use of minors was in furtherance of and within the scope of the marijuana

conspiracy. It was reasonably foreseeable to Burgos-Valencia that Sergio Haro, a

young person, would recruit persons for his drug transportation organization who

happened to be under the age of 18. United States v. Valencia-Roldan, 893 F.2d

1080, 1083 (9th Cir. 1990). Burgos-Valencia’s calm acceptance of the news that a

driver had been arrested and would be released "to his mother" also suggests that

Burgos-Valencia was not surprised to learn of the minor’s involvement.

      7. Lorenia Haro and Julio Haro-Verdugo argue that the district court erred

by refusing to give the "mere presence" instructions that they each requested. We

review for abuse of discretion the finding that a defense theory has no foundation

in the evidence. United States v. Bello-Bahena, 411 F.3d 1083, 1089 (9th Cir.

2005). We review de novo whether jury instructions adequately covered a defense

theory. United States v. Howell, 231 F.3d 615, 629 (9th Cir. 2000). A district

court may refuse to give a mere presence instruction if the government’s case rests

on more than mere presence and if the jury is properly instructed on all elements of

the crime. Id.


                                         7
      The district court did not abuse its discretion by finding that the mere

presence theory had no foundation in the evidence; the government’s case against

both Lorenia Haro and Julio Haro-Verdugo rested on substantially more than mere

presence. For example, testimony showed that Lorenia Haro scouted border

checkpoints, directed Sara Sainz to smuggle money across the border, and accepted

payment for a shipment of marijuana. Evidence showed that Julio Haro-Verdugo

packaged cocaine for shipment, drove a truckload of marijuana, and paid a minor

recruited by Sergio Haro to transport contraband. In addition, the district court

properly instructed the jury on the elements of the charges. Thus, a mere presence

instruction was unnecessary. Furthermore, the district court gave a conspiracy

instruction that adequately covered the mere presence theory. United States v.

Reed, 575 F.3d 900, 926 & n.19 (9th Cir. 2009), cert. denied, 2010 WL 342250

(U.S. Mar. 1, 2010) (No. 09-8843), and 2010 WL 342323 (U.S. Mar. 1, 2010) (No.

09-8853).

      8. Julio Haro-Verdugo argues that the district court erred by refusing to

instruct the jury that cooperating witnesses benefitted by becoming potentially

eligible for release from custody before being sentenced. We review de novo

whether jury instructions adequately covered a defense theory. Howell, 231 F.3d

at 629.


                                          8
      The district court instructed the jury on its ability to consider witness bias

and on the reduced credibility of cooperating witnesses. These instructions

adequately covered Julio Haro-Verdugo’s bias theory. Although the instruction

given on cooperating witnesses did not specify what kinds of "favored treatment"

they might receive, an instruction need not specify the precise benefits obtained.

United States v. Jackson, 84 F.3d 1154, 1157 (9th Cir. 1996).

      9. Lorenia Haro argues that the district court failed adequately to consider

her mitigating arguments at sentencing and that her sentence is substantively

unreasonable. We review for abuse of discretion. United States v. Amezcua-

Vasquez, 567 F.3d 1050, 1053 (9th Cir. 2009) (failure to consider factors and

arguments); United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009)

(substantively unreasonable).

      Here, the district court adequately considered Lorenia Haro’s arguments.

United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.) (en banc), cert denied, 128

S. Ct. 2491 (2008). The district court stated that it had read the material that she

submitted, and the court discussed her role in the drug trafficking and her personal

characteristics, as well as other 18 U.S.C. § 3553(a) factors.

      Furthermore, the district court did not abuse its discretion by sentencing

Lorenia Haro to a term of imprisonment 91 months below the minimum


                                           9
recommended by the Sentencing Guidelines. United States v. George, 403 F.3d

470, 473 (7th Cir. 2005).

      10. Sergio Haro argues that the district court erred by denying him a

sentencing continuance, that the court treated the Guidelines sentence as

presumptively reasonable, and that his sentence violates the Eighth Amendment.

We review for abuse of discretion his procedural claims. United States v. Lopez-

Patino, 391 F.3d 1034, 1036 (9th Cir. 2004) (per curiam) (continuance); Carty, 520

F.3d at 993 (procedural error). We review de novo his Eighth Amendment claim.

United States v. Meiners, 485 F.3d 1211, 1212 (9th Cir. 2007) (per curiam).

      The district court did not abuse its discretion by denying Sergio Haro’s

motion for a continuance. The decision was not arbitrary or unreasonable. Lopez-

Patino, 391 F.3d at 1038-39. Sergio Haro had three months to arrange for a

psychiatric evaluation. Mitigating evidence would have been useful to him even

before the final amendments to the pre-sentence report, and he should have been

aware from the evidence at trial that the court might consider him dangerous. In

addition, Sergio Haro has not shown that the denial prejudiced him. Id. at 1039.

The district court stated that it would assume for sentencing purposes that he had

been raised by a drug-dealing family, and Sergio Haro has not shown that a




                                         10
psychiatric evaluation would have produced any information that would have

affected his sentence.

      The district court’s comments do not show that it applied a presumption of

reasonableness to the Guidelines sentence. Unlike in Nelson v. United States, 129

S. Ct. 890, 892 (2009) (per curiam), the district court did not state that it applied

such a presumption. The district court’s comments about its obligation to identify

factors justifying a departure or variance, in conjunction with its comments during

the same proceeding that the Guidelines recommendation is merely "a starting

point," show that the district court properly understood its role in sentencing.

Finally, the district court explained that a life sentence was appropriate for Sergio

Haro in light of the other § 3553(a) factors and the statutory authorization for a life

sentence for serious drug offenses.

      Sergio Haro’s claim that his life sentence violates the Eighth Amendment

fails because a life sentence is not an unconstitutional sentence for a serious drug

offense. Harmelin v. Michigan, 501 U.S. 957, 996 (1991). The alleged disparity

between his sentence and that of other defendants is irrelevant because his sentence

is not grossly disproportionate to his crimes. Id. at 1005 (Kennedy, J., concurring

in part and concurring in the judgment).




                                           11
      11. Julio Haro-Verdugo argues that the district court erred by not adjusting

his sentence under U.S.S.G. § 3E1.1 for acceptance of responsibility, that the

district court failed to consider relevant sentencing factors, and that his sentence

violates the Eighth Amendment. We review for clear error a district court’s

decision whether to reduce a defendant’s sentence for acceptance of responsibility.

United States v. Johnson, 581 F.3d 994, 1001 (9th Cir. 2009). We review for

abuse of discretion his claim of inadequate consideration of sentencing factors.

Amezcua-Vaszquez, 567 F.3d at 1053. We review de novo his Eighth Amendment

claim. Meiners, 485 F.3d at 1212.

      The district court did not clearly err by denying Julio Haro-Verdugo the

adjustment for acceptance of responsibility because he put the government to its

proof. U.S.S.G. § 3E1.1 cmt. n.2. His guilty plea in a related case does not

demonstrate acceptance of responsibility in this case. Even if his stipulation to

forfeiture were to be deemed analogous to voluntary restitution, it occurred after

trial and, thus, does not constitute "pre-trial statements and conduct" that might

demonstrate acceptance of responsibility in a defendant who goes to trial. Id.

(emphasis added).

      The district court did not abuse its discretion in considering Julio Haro-

Verdugo’s mitigating arguments and the § 3553(a) factors. The district court


                                          12
stated that it had read the material that he submitted. The district court discussed

the need for deterrence, the need to promote respect for the law, the characteristics

of the offense, and disparities among defendants, in addition to aspects of Julio

Haro-Verdugo’s personal characteristics—his choice to continue his involvement

with the conspiracies even after being arrested for driving a truckload of marijuana

and his relative lack of dangerousness compared to another defendant. The court

simply did not find Julio Haro-Verdugo’s arguments and the § 3553(a) factors

sufficient to warrant a below-Guidelines sentence. Amezcua-Vasquez, 567 F.3d at

1054.

        Julio Haro-Verdugo’s sentence of 316 months’ imprisonment is not grossly

disproportionate to his crimes—ten serious drug offenses. United States v.

Barajas-Avalos, 377 F.3d 1040, 1061 (9th Cir. 2004). Drug trafficking is

extremely harmful to society. Harmelin, 501 U.S. at 1002 (Kennedy, J.,

concurring in part and concurring in the judgment). The mere lack of empirical

data underlying the Guidelines’ recommendations for these offenses does not

demonstrate gross disproportionality.

        12. Burgos-Valencia asserts that the district court violated his double

jeopardy rights by convicting and sentencing him both for engaging in a continuing

criminal enterprise and for conspiring to distribute and to possess with intent to


                                           13
distribute marijuana. We conclude that the district court plainly erred. United

States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008). A drug distribution

conspiracy is a lesser-included offense of a continuing criminal enterprise when

both charges rely on the same conduct. Rutledge v. United States, 517 U.S. 292,

300 (1996). Here, the indictment alleges the conspiracy as one of the predicate

drug offenses for the continuing criminal enterprise count, and we cannot conclude

that the jury did not rely on this particular predicate offense. United States v.

Schales, 546 F.3d 965, 980 (9th Cir. 2008), cert. denied, 129 S. Ct. 1397 (2009).

Convicting and sentencing Burgos-Valencia on both counts constitutes plain error.

Davenport, 519 F.3d at 947-48. Accordingly, we reverse and remand those

convictions for the district court to hold a hearing and then to make a discretionary

determination as to which conviction should be vacated. United States v. Hector,

577 F.3d 1099, 1104 (9th Cir. 2009). Upon vacating one of the convictions, the

court should reconsider the sentence imposed on Burgos-Valencia.

      AFFIRM in part, REVERSE and REMAND in part.




                                          14
