                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 06 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10302

              Plaintiff-Appellee,                D.C. No.
                                                 3:12-cr-00144-EMC-1
 v.

MIKAL XYLON WILDE,                               MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward M. Chen, District Judge, Presiding

                     Argued and Submitted December 13, 2016
                             San Francisco, California

Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,** District Judge.

      In the summer of 2010, Mikal Xylon Wilde hired three men (Christopher

Bigelow, Francisco Lopez-Paz, and Roberto Juarez-Madrid) to work on his

marijuana farm. In the ensuing months, the men’s living and work conditions


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
deteriorated because Wilde confiscated their phones, required them to perform

onerous manual labor, neglected to replenish their food, and failed to pay them as

agreed.

      On August 25, 2010, the men contacted Wilde’s business partner, Tom

Tuohy, and threatened to report the marijuana operation if they did not receive

payment. When Wilde discovered that the men had complained to Tuohy, he was

angry but promised to pay and escort them back to the city. That night, Wilde went

to the men’s trailer and shot at all three men, killing Juarez-Madrid and severely

injuring Lopez-Paz in the face. Bigelow and Lopez-Paz escaped and hid in the

woods nearby.

      The next morning, Lopez-Paz went to a fire department, gave a statement to

law enforcement, and was escorted to a hospital. Bigelow, meanwhile, encountered

a jogger, explained his situation, and asked for help. The jogger found assistance

for Bigelow, who then gave his statement to officers.

      Before trial, Tuohy testified in front of a grand jury and mentioned an email

that he had received from Wilde, asking whether anyone would miss Lopez-Paz if

he vanished. Experts from the FBI, Yahoo, and Microsoft could not locate the

email but acknowledged that it could have been deleted. Tuohy also testified that




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Wilde had the password to Tuohy’s email account and that Wilde’s sister visited

Tuohy after the murder and asked Tuohy to delete all his emails.

      A jury convicted Wilde of first-degree murder and several drug offenses.

The court sentenced Wilde to life plus thirty-five years. Wilde appeals three

evidentiary rulings and one jury instruction. We affirm.

      1. The district court did not abuse its discretion in allowing Tuohy to

testify about the missing email. See Fed. R. Evid. 1008. The court exercised its

gate-keeping function under Rule 104(b) and determined a reasonable jury could

conclude that the disputed email existed. See Huddleston v. United States, 485 U.S.

681, 690 (1988) (holding that under Rule 104(b), the “court simply examines all

the evidence in the case and decides whether the jury could reasonably find the

conditional fact . . . by a preponderance of the evidence”).

      The district court did not commit plain error by not instructing the jury that

it should find preliminary facts about the email’s existence before attributing any

weight to the email’s contents. Even if the district court did err by failing to

instruct, Wilde has not shown that such error contravened clearly settled law. See

United States v. Greer, 640 F.3d 1011, 1019 (9th Cir. 2011) (failure to instruct the

jury was not plain error where “no circuit has held that [the disputed] instruction is

required and at least one circuit has held that it is not”). Moreover, because the


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testimony made clear that there was no record that the contested email was sent or

received and its existence was hotly contested, no rational juror would rely on its

alleged contents if he or she did not first conclude that it had in fact existed; any

instruction to that effect thus could not have made a difference. Finally, the record

contains substantial evidence of premeditation, so any error did not prejudice

Wilde. See United States v. Torralba-Mendia, 784 F.3d 652, 662 (9th Cir. 2015)

(holding that plain error did not affect the outcome where there was “a substantial

amount of evidence, aside from [the erroneously admitted testimony]”).

      2. The district court did not abuse its discretion in admitting prior

consistent statements by Bigelow and Lopez-Paz. See Fed. R. Evid. 801(d)(1)(B).

Bigelow’s prior consistent statement was admissible because the defense cross-

examined him extensively with parts of the statement. See United States v.

Collicott, 92 F.3d 973, 979–80 (9th Cir. 1996) (“[T]his Circuit has historically

allowed a party to introduce prior statements because they were part of the same

conversation or document from which impeaching inconsistent statements were

drawn.”).

      Lopez-Paz’s prior consistent statement was admissible because the defense

opened the door by questioning him about a U non-immigrant status visa he

received from the government. See Arizona v. Johnson, 351 F.3d 988, 999 (9th Cir.


                                            4
2003) (holding that a charge of improper motive based on receipt of immigration

benefits opens the door to prior consistent statement).

      3. The district court’s decision to admit Bigelow’s out-of-court statement

to the jogger did not result in prejudice because Bigelow, Lopez-Paz, and even

Wilde himself testified at trial about the same events that Bigelow relayed to the

jogger. Also, Bigelow’s prior consistent statement concerning those same events

was, as we have explained, properly admitted. Woods v. Sinclair, 764 F.3d 1109,

1125-26 (9th Cir. 2014) (finding no prejudice where the hearsay statements “were

cumulative of the testimony by [another witness]” who testified to the same event);

United States v. Sherlock, 962 F.2d 1349, 1365 (9th Cir. 1989) (finding no

prejudice where “[a]t least two other witnesses testified” to the same events as the

hearsay declarant).

      4. The district court properly instructed the jury that in determining the

amount of marijuana, all marijuana plants should be included in the quantity,

regardless of sex. See United States v. Traynor, 990 F.2d 1153, 1160 (9th Cir.

1993), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th

Cir. 2001) (“It is not obviously irrational for Congress not to distinguish between

male and female marijuana plants, regardless of THC level.”). The challenged




                                          5
instruction does not violate Wilde’s due process rights, and therefore, the district

court did not abuse its discretion in giving the instruction.

      AFFIRMED.




                                           6
                                                                             FILED
USA v Mikal Xylon Wilde 15-10302
                                                                              JAN 06 2017
BERZON, Circuit Judge, concurring:                                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      Federal Rule of Evidence 1008 states that in a jury trial, “the jury determines

– in accordance with [Fed. R. Evid.] 104(b) – any issue about whether . . . an

asserted writing, recording or photograph ever existed.” In my view, Rule 1008's

requirement that “the jury determine[]” whether or not an asserted writing ever

existed probably contemplates that in this context, the jury as a whole find the

predicate facts by a preponderance of the evidence. If that is correct, then an

instruction to that effect – and, in all likelihood, a special verdict form – would be

needed.

      A “jury determination” generally refers to facts found by the entire jury.

See, e.g., Kansas v. Marsh, 548 U.S. 163, 165-66 (2006) (examining whether state

statute requiring imposition of the death penalty where “the . . . jury determines

that aggravating evidence and mitigating evidence are in equipoise” violated the

Constitution); Apprendi v. New Jersey, 530 U.S. 466, 476–77 (2000) (the

Fourteenth Amendment entitles a state criminal defendant to “a jury determination

that [he] is guilty of every element of the crime with which he is charged, beyond a

reasonable doubt.”) (citing United States v. Gaudin, 515 U.S. 506, 510 (1995));

Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 342 (1998) (right to a

jury trial includes the “right to a jury determination of the amount of statutory
damages.”).

      But the defense has never argued, including in this court, that a

determination by the jury as a whole was required. As a result, the parties have not

briefed whether the Rule in fact contemplates a predicate determination by the jury

as a body. If, as the defendant instead has asserted, it is each juror who was

supposed to decide on the predicate fact (the existence of the email) before relying

on its content, then there was no need for an instruction. Any juror would

necessarily have to come to a conclusion about Tuohy’s veracity before factoring

the email into his or her premeditation conclusion. With those observations, I

concur in the memorandum disposition in full.




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