                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 27 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-10229

              Plaintiff - Appellee,               D.C. No. 3:10-cr-08204-NVW-1

  v.
                                                  MEMORANDUM*
WILBERT TSOSIE,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                        Argued and Submitted May 15, 2013
                             San Francisco, California

Before: CLIFTON and BEA, Circuit Judges, and KORMAN, District Judge.**

       Wilbert Tsosie appeals his jury conviction for murdering his girlfriend,

Lorena Martin, at their home on the Navajo Indian Reservation. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, District Judge for the Eastern
District of New York, sitting by designation.
1.    Motion for a Continuance

      The district court did not abuse its discretion when it denied Tsosie’s motion

for a continuance. See United States v. Rivera-Guerrero, 426 F.3d 1130, 1138 (9th

Cir. 2005) (“A district court’s denial of a continuance is reviewed for an abuse of

discretion.”). In reviewing the denial of a continuance we weigh four factors: (1)

“the extent of appellant’s diligence in his efforts to ready his defense prior to the

date set for hearing”; (2) “how likely it is that the need for a continuance could

have been met if the continuance had been granted”; (3) “the extent to which

granting the continuance would have inconvenienced the court and the opposing

party, including its witnesses”; and (4) “the extent to which the appellant might

have suffered harm as a result of the district court’s denial.” Id. at 1138-39

(quoting United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985)).

      Three factors weigh against Tsosie. First, the need for a continuance was a

direct result of his lack of diligence, as he waited until weeks before the firm trial

date to view the Government’s evidence. Second, the continuance would have

significantly inconvenienced the district court. Third, it is unclear whether Tsosie

actually suffered any prejudice. The record did not indicate that a DNA analysis of

blood, hair, and fibers on Martin’s jacket would have provided any probative




                                           2
evidence, and any potential prejudice was at least partly mitigated at trial when

Tsosie admitted photos of the jacket and elicited testimony about the jacket.

      The denial of the continuance also did not deprive Tsosie of his

constitutional right to present a complete defense. Although criminal defendants

have a constitutional right to “a meaningful opportunity to present a complete

defense,” United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010) (citation

omitted), that right is “subject to reasonable restrictions, such as evidentiary and

procedural rules,” Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2009) (internal

quotation marks and citation omitted). The denial of the continuance was a

permissible exercise of the district court’s discretion to manage its docket.

      Moreover, the DNA analysis Tsosie sought was not necessarily crucial to his

defense. Cf. United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992)

(stating that the exclusion of evidence based on a valid application of hearsay rules

may nonetheless amount to a constitutional violation if the “evidence [was]

sufficiently reliable and crucial to the defense”). The probative value of the DNA

analysis was unknown, and Tsosie argued about the jacket at trial.

2.    Exclusion of Barkman’s Testimony as a Discovery Sanction

      The district court erred when it excluded Weaver Barkman’s testimony

regarding the WB1 blood sample as a discovery sanction. Although Rule


                                           3
16(d)(2)(C) of the Federal Rules of Criminal Procedure states that a district court

may “prohibit [a party who fails to comply with Rule 16] from introducing the

undisclosed evidence,” under United States v. Finley, 301 F.3d, 1000, 1018 (9th

Cir. 2002), “[e]xclusion is an appropriate remedy for a discovery rule violation

only where the omission was willful and motivated by a desire to obtain a tactical

advantage.” (internal quotation marks, citation, and emphasis omitted). The record

did not demonstrate that Tsosie’s discovery rule violation was willful and

motivated by a desire to obtain a tactical advantage.

      The exclusion is not reversible error, however, because it was harmless

beyond a reasonable doubt, if that is the applicable standard. See United States v.

Boulware, 384 F.3d 794, 808 (9th Cir. 2004). The Government’s case against

Tsosie was strong. Particularly significant was the testimony of Tsosie’s neighbor

that Tsosie changed his shoes after being accused of causing Martin’s injuries. The

shoes Tsosie allegedly had been wearing were found, with blood on at least one

shoe, outside the house the next day. Other evidence also supported the

Government’s case.

       Tsosie, on the other hand, lacked evidence in support of his defense, and

Barkman’s testimony about the WB1 sample would not have tipped the scales in

his favor. Even accepting Barkman’s opinion that the second person’s DNA was


                                          4
not Tsosie’s (which the DNA analysis report did not itself say), all that Barkman’s

testimony would have conclusively established was the presence of someone else

in Tsosie and Martin’s home sometime before the WB1 sample was collected,

more than a year after Martin was killed. But there was no dispute that other

people had been in the home before and after the crime, including the George

brothers, law enforcement, and people who cleaned the house after Martin’s death.

There was no indication that the second person’s DNA came from blood as

opposed to cellular material such as skin. That the second person’s DNA was

detected at the same place as the blood sample was not shown to be significant.

      Because we conclude that the error was harmless beyond a reasonable doubt,

even if we assume that the error amounted to a violation of Tsosie’s constitutional

right to present a complete defense, the conviction should be affirmed. See Stever,

603 F.3d at 757 (“A violation of the right to present a defense requires reversal of a

guilty verdict unless the Government convinces us that the error was harmless

beyond a reasonable doubt.”).

      AFFIRMED.




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