                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 18 2013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. 10-10131

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01329-ROS-1

  v.
                                                 MEMORANDUM *
DAMIEN ZEPEDA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                  Roslyn O. Silver, Chief District Judge, Presiding

                        Argued and Submitted July 17, 2012
                            San Francisco, California

Before: FERNANDEZ, PAEZ, and WATFORD, Circuit Judges.

       In a nine-count indictment, the government charged Defendant Damien

Zepeda (“Zepeda”) with, inter alia, conspiracy to commit assault, assault with a




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
deadly weapon, and use of a firearm during a crime of violence.1 Following a jury

trial, he was convicted of all nine counts. On appeal, he argues that numerous

errors at trial warrant reversal of his conspiracy conviction, and that there was

insufficient evidence to convict him of conspiracy beyond a reasonable doubt.2 We

have jurisdiction under 18 U.S.C. § 1291 and we affirm.

      Zepeda argues that the district court erred in failing to give a voluntary

intoxication instruction at trial. We disagree. Because Zepeda neither presented

nor relied upon a voluntary intoxication theory of defense, the district court’s

failure to instruct the jury on that theory sua sponte was not plain error. See United

States v. Bear, 439 F.3d 565, 568 (9th Cir. 2006); United States v. Span, 970 F.2d

573, 578 (9th Cir. 1992).




      1
         The nine counts included: (1) conspiracy to commit assault with a
dangerous weapon and assault resulting in serious bodily injury, in violation of 18
U.S.C. §§ 1153, 371, and 2; (2) assault resulting in serious bodily injury against
Dallas Peters, in violation of 18 U.S.C. §§ 1153, 113(a)(6) and 2; (3) use of a
firearm during a crime of violence as charged in count 2, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2; (4), (6), (8) assault with a dangerous weapon against Dallas
Peters, Stephanie Aviles, and Jane Doe, in violation of 18 U.S.C. §§ 1153,
113(a)(3), and 2; and, (5), (7), (9) use of a firearm during the crimes of violence
charged in counts 4, 6, and 8, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2.
      2
        In an opinion filed concurrently with this Memorandum, we reversed
Zepeda’s convictions under counts 2 through 9 of the Indictment. Here, we
address only Zepeda’s conspiracy conviction, under count 1 of the Indictment.

                                           2
      Zepeda next argues that the prosecutor committed misconduct when

questioning his brother Matthew Zepeda (“Matthew”) regarding Matthew’s

obligations to testify truthfully pursuant to his plea agreement, and that the district

court erred in denying Zepeda’s motion for a mistrial on this basis. The

government concedes that the prosecutor’s “perjury” objection during Matthew’s

testimony was improper. Any error resulting from that improper objection was

harmless, however. First, the district court gave a prompt and proportional

curative instruction. See United States v. Necoechea, 986 F.2d 1273, 1280 (9th

Cir. 1993); United States v. Parks, 285 F.3d 1133, 1141 (9th Cir. 2002). Second,

Matthew’s testimony favored the government and its discrediting favored the

defense, since the defense relied heavily on the theory that the government’s

witnesses were lying. The district court did not abuse its discretion in denying

Zepeda’s mistrial motion.

      In addition, the prosecutor’s pre-trial admonitions that Matthew should not

commit perjury were not misconduct. Matthew’s contemporaneous letter to

Zepeda reveals that the prosecutor did not use coercive or intimidating tactics, but

sought to assure Matthew’s adherence to the conditions of his plea agreement. See

United States v. Vavages, 151 F.3d 1185, 1189-90 (9th Cir. 1998).




                                           3
      Zepeda next argues that the prosecutor misstated the evidence during closing

argument and caused the jury falsely to infer a conspiratorial agreement between

him and his brothers. It is “not misconduct for the prosecutor to argue reasonable

inferences based on the record.” United States v. Younger, 398 F.3d 1179, 1190

(9th Cir. 2005) (internal quotation marks and citation omitted). However, the

prosecutor’s statement during closing argument that Zepeda told his brother

Jeremy Zepeda (“Jeremy”) that they were going to “do some dirt,” when in fact

there was no testimony to that effect, was improper. Nonetheless, no prejudicial

plain error resulted in light of the ample additional evidence from which the jurors

could have inferred a conspiratorial agreement. See United States v. Sullivan, 522

F.3d 967, 982 (9th Cir. 2008); cf. United States v. Blueford, 312 F.3d 962, 968-73

(9th Cir. 2002).

      Zepeda further argues that the district court erred in failing to conduct an

evidentiary hearing when the prosecutor alerted her that a juror was asleep. “A

single juror’s slumber . . . is not per se plain error.” United States v. Olano, 62

F.3d 1180, 1189 (9th Cir. 1995). Zepeda failed to demonstrate that the juror’s

inattention “deprived him of his right to an impartial jury and, more generally, to a

fair trial” because the record reflects that the juror was asleep during key

testimony that incriminated him. Id. (citation and internal quotation marks


                                           4
omitted). The juror’s inattention therefore, if anything, was harmful to the

government. Accordingly, the district court did not plainly err in failing to

investigate further.

       Finally, Zepeda argues that insufficient evidence supported his conspiracy

conviction. We disagree. Zepeda testified that he wanted to have his brothers with

him on the night of the crime; Jeremy testified that Zepeda was carrying a handgun

and a sawed off shotgun, and that “they were supposed to give me the shotgun”;

Jeremy testified that he saw Zepeda hand Matthew the shotgun before walking to

the door of the victims’ house; and, Matthew testified that Zepeda instructed him

on how to load the shotgun, and told him to fire a shot if something happened.

Drawing all inferences in the government’s favor, a reasonable juror could have

inferred a conspiratorial agreement from these facts, and found Zepeda guilty of

conspiracy beyond a reasonable doubt. See United States v. Esquivel-Ortega, 484

F.3d 1221, 1224 (9th Cir. 2007); see also Jackson v. Virginia, 443 U.S. 307, 319

(1979) (noting that it is “the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts”); United States v. Sanchez-Mata, 925

F.2d 1166, 1167 (9th Cir. 1991) (stating that “only a slight connection is necessary

to support a conviction of knowing participation” in a conspiracy).


                                             5
      We decline to review Zepeda’s ineffective assistance of counsel claim on

direct appeal because the record is insufficiently developed. See United States v.

McKenna, 327 F.3d 830, 845 (9th Cir. 2003).

      In light of our conclusions, cumulative error does not warrant reversal. See

Necoechea, 986 F.2d at 1282.

      AFFIRMED.




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