                                                                           FILED
                           NOT FOR PUBLICATION                               MAY 21 2013

                                                                        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,                        No. 12-10264

              Plaintiff - Appellee,              D.C. No. 4:11-cr-02230-DCB-
                                                 JJM-3
  v.

FREDERICK PARKER,                                MEMORANDUM *

              Defendant - Appellant.



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

                        Argued and Submitted May 10, 2013
                             San Francisco, California

Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.

       Defendant-Appellant Frederick Parker appeals his conviction for conspiracy

to possess a destructive device in violation of 18 U.S.C. § 371 and 26 U.S.C.

§ 5861(d) and possession of a destructive device in violation of 26 U.S.C.

§ 5861(d). He contends that the district court abused its discretion by denying his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
motion to sever his trial from that of his co-defendant. Parker’s co-defendant was

charged with drug-trafficking and firearm crimes in addition to being charged with

the same crimes as Parker.

      We hold that the district court did not abuse its discretion because the joint

trial was not “so manifestly prejudicial as to require the trial judge to exercise his

discretion in but one way, by ordering a separate trial.” United States v. Sullivan,

522 F.3d 967, 981 (9th Cir. 2008) (quoting United States v. Decoud, 456 F.3d 996,

1008 (9th Cir. 2006)). The most important factors in determining whether there

was manifest prejudice “are whether the jury can compartmentalize the evidence

against each defendant and the judge’s diligence in providing evidentiary

instructions to the jury.” Sullivan, 522 F.3d at 981–82.

      Parker was convicted based on evidence of his involvement in firebombing a

house thought to belong to a person involved in an attempted drug deal with some

Mexican Mafia members. Parker got involved in the firebombing because he was

living with a Mexican Mafia member. Parker was tried with a Mexican Mafia

leader named Alcantar. Two Mexican Mafia members testified for the government

against Alcantar and Parker, both of whom were involved in tossing gasoline-filled

bottles at the home.




                                            2
      Here, the jury was able to compartmentalize the evidence, as shown by “its

failure to convict all defendants on all counts.” Id. at 982 (citation omitted). The

jury acquitted Parker’s co-defendant on two charges. This selective verdict shows

that the jury considered the evidence on each charge in the indictment and gave

each “individual consideration.” Id.

      Additionally, the prosecutors and witnesses presented the evidence in a way

that allowed the jury to compartmentalize the evidence. For example, in opening

statement and closing argument, the prosecutor said that Parker was not a member

of the Mexican Mafia or the drug conspiracy. The witnesses testified that Parker

was not a member of the Mexican Mafia and gave no evidence that Parker

participated in the drug conspiracy. These statements by the prosecutor in opening

statement and closing argument, and the statements of the witnesses in testimony,

tend to show that the jury understood the differences between the two defendants

and their alleged offenses.

      The judge explicitly provided limiting instructions about the separate

charges and evidence at the start of the trial, during the presentation of evidence,

and at the end of the trial. See Sullivan, 522 F.3d at 982 n.9. These instructions

“neutralized” any prejudicial effect of the evidence admitted only against his co-

defendant. United States v. Stinson, 647 F.3d 1196, 1205 (9th Cir. 2011) (quoting


                                           3
United States v. Patterson, 819 F.2d 1495, 1503 (9th Cir. 1987)). Parker has not

shown that “the curative instructions were inadequate.” United States v. Johnson,

297 F.3d 845, 855 (9th Cir. 2002). Instead, the instructions were fair and adequate.

      Assuming without deciding that the abuse-of-discretion standard from

United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc), applies,

we hold that the district court did not abuse its discretion because the court

“identified the correct legal standard” and its application of that standard was “not

illogical, implausible, or without support in inferences that may be drawn from the

facts in the record.”

      AFFIRMED.




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