                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 26 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10607

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00140-KJD-
                                                 GWF-1
  v.

CHRISTOPHER SANGALANG,                           MEMORANDUM*

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10617

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00140-KJD-
                                                 GWF-2
  v.

DEANDRE PATTON,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
UNITED STATES OF AMERICA,                 No. 11-10001

         Plaintiff - Appellee,            D.C. No. 2:08-cr-00163-JCM-
                                          GWF-3
 v.

DEANDRE PATTON,

         Defendant - Appellant.



UNITED STATES OF AMERICA,                 No. 11-10035

         Plaintiff - Appellee,            D.C. No. 2:08-cr-00163-JCM-
                                          GWF-1
 v.

CHRISTOPHER SANGALANG,

         Defendant - Appellant.



UNITED STATES OF AMERICA,                 No. 11-10322

         Plaintiff - Appellee,            D.C. No. 2:08-cr-00163-JCM-
                                          GWF-2
 v.

ALFREDO FLORES,

         Defendant - Appellant.


              Appeal from the United States District Court
                       for the District of Nevada
               James C. Mahan, District Judge, Presiding
                        Argued and Submitted May 12, 2014
                             San Francisco, California

Before: SILVERMAN and GOULD, Circuit Judges, and LEMELLE, District
Judge.**

      Defendants Christopher Sangalang, Deandre Patton, and Alfredo Flores

appeal their criminal convictions after two jury trials, arising from the “Sin City

Ink” undercover operation by the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”). Judge Mahan presided over the first trial, with charges

related to a fictitious stash house robbery involving all three Defendants. Judge

Dawson presided over the second trial, with charges related to gun and drug sales

before the fictitious stash house robbery, involving Sangalang and Patton. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The ATF agents’ conduct in the Sin City Ink operation does not satisfy the

“extremely high standard” required to dismiss an indictment for outrageous

government conduct. See United States v. Black, 733 F.3d 294, 302 (9th Cir.

2013) (internal quotation marks omitted). To facilitate the undercover sting

transactions, ATF agents set up a tattoo parlor based on Agent Gomez’s first-hand

knowledge of the types of venues where known gang members congregated, and



       **
             The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.

                                         -3-
used a confidential informant, Richard Beckworth, a known gang member with

connections to other known gang members. The inception of the ATF’s Sin City

Ink operation did not target a “bad area where persons engaged in criminal activity

were likely to gather.” See id. at 305 (internal quotation marks omitted). This

casting of such a wide net was not a feature of the sting operations in this case,

where the ATF aimed at known gang members of gangs that already were known

to be involved in drug and gun sales and violent crime. Agent Gomez developed

personal relationships with Defendants over months, and the ATF agents relied on

Defendants’ “representations of their past criminal conduct” and their enthusiasm

about planning and participating in the stash house robbery. Id. at 307 n.10. As in

Black, “the existence of tape and video recordings to prove what was actually said

and done has weighed heavily in our review of the record,” id. at 310, and the ATF

agents’ conduct here, including their supervision of Beckworth, was not

outrageous under the totality of the circumstances. See id. at 304.

      The district courts did not abuse their discretion in denying Defendants’

Federal Rule of Criminal Procedure 33 motions for a new trial based on newly

discovered evidence because Defendants cannot show that the evidence is material,

not cumulative, and that “a new trial would probably result in acquittal.” See

United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005). In both trials, the


                                          -4-
jury watched extensive recordings of Sangalang and Patton selling guns and drugs

to undercover ATF agents. Beckworth’s conduct in facilitating those transactions

was known to the jury through defense counsel’s impeachment of Agent Gomez

and Beckworth, and the testimony of Ashley Gonzalez and Defendant Patton. This

is not a case where the outcome depended on Beckworth’s credibility and the jury

had before it plenty of evidence that Beckworth was not credible. See United

States v. Collins, 551 F.3d 914, 924 (9th Cir. 2009). Cumulative evidence of

Beckworth’s lack of credibility would not indicate that “a new trial probably would

result in an acquittal.” See United States v. Waggoner, 339 F.3d 915, 919 (9th Cir.

2003). Moreover, evidence of Beckworth’s alleged conduct in subsequent sting

operations in Texas might be relevant to the government’s practices inducing

crime, but would not be at all relevant to show an absence of Defendants’

predisposition to do the crimes that they did in the sting. Defendants have not

shown and cannot show that the alleged Texas evidence would have been relevant

to both elements of an entrapment defense. See United States v. Spentz, 653 F.3d

815, 818 (9th Cir. 2011). This evidence did not warrant a new trial.

      For similar reasons, the district courts did not err in denying Defendants’

motions for a new trial based on alleged violations of Brady v. Maryland, 373 U.S.

83 (1963). Assessing Beckworth’s alleged conduct in subsequent sting operations


                                        -5-
in Texas “in the light of other evidence, not merely in terms of its probative value

standing alone,” we conclude that the omitted evidence is not sufficient to gain a

new trial. See United States v. Ross, 372 F.3d 1097, 1107-08 (9th Cir. 2004). As

discussed above, the government presented extensive video evidence of Sangalang

and Patton’s gun and drug transactions. Beckworth’s conduct was thoroughly

raised at trial. Because Beckworth’s alleged Texas conduct is “similar to and

cumulative” of the evidence of Beckworth’s conduct presented at trial, there is no

“reasonable likelihood” that the Texas evidence “could have changed the jury’s

verdict.” See United States v. Wilkes, 662 F.3d 524, 536-37 (9th Cir. 2011). While

Beckworth invoked his right to remain silent about his participation in the Sin City

Ink operation in a subsequent Texas proceeding, we do not believe this fact creates

a “reasonable probability” of a different outcome that “undermines our trust in the

fairness of the trial and the resulting verdict.” See United States v. Sedaghaty, 728

F.3d 885, 900 (9th Cir. 2013). Defendants’ Brady claim also shares the

deficiencies of their newly discovered evidence argument. Defendants cannot

show prejudice because the alleged Texas evidence only relates to government

inducement, not Defendants’ predisposition. See Spentz, 653 F.3d at 818.

      The district court did not abuse its discretion in excluding Defendants’

proposed expert witness in the stash house robbery trial on the basis that the


                                         -6-
expert’s testimony would not assist the jury as trier of fact. See Fed. R. Evid. 702;

Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir. 2014) (en

banc). At trial, defense counsel stated that the expert would testify about (1) the

handling and management of CIs; (2) “braggadocio” of gang members; and (3)

documentation and the importance of writing reports. The district court’s

conclusion that the jury could understand these concepts without the expert’s

opinion was not “illogical, implausible, or without support in inferences that may

be drawn from the facts in the record.” See United States v. Hinkson, 585 F.3d

1247, 1263 (9th Cir. 2009) (en banc).

      The district courts properly conducted the three-part test for evaluating

challenges under Batson v. Kentucky, 476 U.S. 79 (1986). The record shows that

the district courts did not clearly err in concluding that the government’s race-

neutral justifications were credible, and were not pretextual, under the totality of

the relevant facts. See Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (en

banc). Comparative juror analysis also does not show purposeful discrimination in

this case. Id. at 360.

      Without deciding whether the district court erred in admitting Defendants’

prior gun and drug sales under the “inextricably intertwined” exception to Federal

Rule of Evidence 404(b), we conclude that those acts were admissible to show


                                          -7-
Defendants’ intent or predisposition where entrapment is at issue.1 See United

States v. Simtob, 901 F.2d 799, 807 (9th Cir. 1990). The prior gun and drug sales

were close in time to the planned stash house robbery, and relevant to show intent

or predisposition to steal drugs or money from the stash house. See id. It is also

reasonable to think that people who sell weapons might use the weapons for some

purpose other than sale. Because predisposition was a “central issue” in this case,

the probative value of the prior gun and drug sales outweighed any potential

prejudice to Defendants. See id. at 808.

      There is no clear error in the district courts’ factual finding that the ATF

agents did not destroy the surveillance tapes of the tattoo parlor in bad faith. See

United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013). There is no evidence

that the ATF agents knew of exculpatory evidence on the destroyed tapes, and the

ATF agents explained that they only retained recordings that they believed had

evidentiary value. The district courts did not abuse their discretion in denying

Defendants’ request for an adverse inference jury instruction. See id. at 1173.

       The district courts did not abuse their discretion in permitting the use of

transcripts as a listening aid to the video tapes shown at trial. See United States v.

      1
       We may affirm the district court’s admission of evidence on any basis
supported by the record that has been briefed on appeal. See Valdivia v.
Schwarzenegger, 599 F.3d 984, 994 (9th Cir. 2010).

                                           -8-
Delgado, 357 F.3d 1061, 1070 (9th Cir. 2004). There was no evidence that the

transcripts were inaccurate, and the ATF agents testified as to their accuracy. Both

district courts admonished the jury that the tapes were the evidence, not the

transcripts; defense counsel had the opportunity to cross-examine the ATF agents

about the transcripts; and defense counsel could have raised inconsistencies in

argument over the meaning of the conversations on the tapes. Id. The district

courts were “not required as a matter of law to listen to tapes prior to their being

played to the jury or determine whether a transcript is accurate before permitting a

jury to look at it.” See United States v. Tisor, 96 F.3d 370, 377 (9th Cir. 1996).

      We reject Defendants’ cumulative error argument.

      AFFIRMED.




                                          -9-
