                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 30 2013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. 09-50657

             Plaintiff - Appellee,               D.C. No. 2:03-cr-01257-RSWL-1

  v.
                                                 MEMORANDUM *
DANNY JOSEPH FABRICANT,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50032

              Plaintiff - Appellee,              D.C. No. 2:03-cr-01257-RSWL-1

  v.

DANNY JOSEPH FABRICANT,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50065

              Plaintiff - Appellee,              D.C. No. 2:03-cr-01257-RSWL-1

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
DANNY JOSEPH FABRICANT,

               Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                 Ronald S.W. Lew, Senior District Judge, Presiding

                       Argued and Submitted January 9, 2013
                               Pasadena, California


Before:        GOODWIN and W. FLETCHER, Circuit Judges, and KORMAN,
               Senior District Judge.**




      The government’s January 28, 2013 motion for miscellaneous relief is

granted. This court’s memorandum disposition dated January 23, 2013 is hereby

withdrawn.

      Defendant Daniel Joseph Fabricant appeals his convictions for distribution

of methamphetamine, conspiracy to distribute methamphetamine, and possession

with intent to distribute methamphetamine. Fabricant appeals his statutory

mandatory minimum sentence of life without parole pursuant to 21 U.S.C. §

841(b)(1)(B)(viii) (No. 09-50657). Finally, Fabricant appeals the denial of two


          **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.

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motions in the district court: a motion for return of property (No. 10-50032), and a

motion for a protective order to preserve evidence (No. 12-50065). We have

jurisdiction pursuant to 18 U.S.C. § 1291. We remand No. 10-50032 and

otherwise affirm.

I.    Trial and Sentencing Claims, 09-50657

      a.     Valid waiver of right to counsel

      Fabricant represented himself at various stages through his first and second

trial, sometimes with appointed advisory counsel or co-counsel. He argues in part

that his waiver of counsel was not valid under Faretta because it was not knowing,

voluntary, and intelligent. See Faretta v. California, 422 U.S. 806, 807 (1975);

United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987). We review de

novo a waiver of the right to counsel. United States v. Forrester, 512 F.3d 500,

506 (9th Cir. 2008).

      We hold that Fabricant had an adequate on-the-record Faretta colloquy and

that his waiver of his right to counsel was valid. Although the district court’s

colloquy in his first proceeding was both late and insufficient under Faretta,

Fabricant had already received an adequate colloquy from the magistrate judge at

his first appearance. His valid waiver at that appearance carried over into his

subsequent proceedings. United States v. Hantzis, 625 F.3d 575, 581 (9th Cir.


                                          3
2010) (citing United States v. Springer, 51 F.3d 861, 864-65 (9th Cir. 1995)); see

also White v. United States, 354 F.2d 22, 23 (9th Cir. 1965). The Presentence

Report indicated that Fabricant waived counsel in six prior court proceedings,

which included two full jury trials, and he told the magistrate judge that he had

represented himself thirty times, including in federal prosecutions.

      b.     Unreasonable restriction on access to materials and resources

      Fabricant argues his Faretta rights were violated because his access to

materials to prepare a defense was unreasonably infringed. See United States v.

Robinson, 913 F.2d 712, 717 (9th Cir. 1990); Milton v. Morris, 767 F.2d 1443,

1445 (9th Cir. 1985). We review the district court’s factual findings on access to

materials for clear error, United States v. Sarno, 73 F.3d 1470, 1492 (9th Cir.

1995), and review the reasonableness of the trial court’s restrictions for abuse of

discretion, Robinson, 913 F.2d at 718. Fabricant has not shown that his access was

unreasonable; he is entitled to some access, not the access he would most prefer.

Id. It is clear from the record that the restrictions on Fabricant’s access did not

approach the restrictions in Milton, and were not dissimilar from those in

Robinson. He has not shown a violation of his Faretta rights.

      c.     Co-counsel did not usurp representation




                                           4
      At the second trial, the district court granted Fabricant’s request to have

appointed advisory counsel elevated to co-counsel. Fabricant argues that co-

counsel impermissibly usurped representation and thus violated his right to self-

representation under McKaskle v. Wiggins, 465 U.S. 168, 177 (1984). The parties

dispute the standard of review, but we hold that Fabricant’s claim fails even under

de novo review.

      Any participation by co-counsel to which the defendant expressly consents

is “constitutionally unobjectionable,” and an invitation to counsel to participate

“obliterates” any claims that such participation deprived the defendant of his rights.

Id. at 182. Agreement by the defendant to have counsel participate is presumed to

remain in place until the defendant objects. Id. Fabricant made no objections to

the district court about the actions he now claims violated his constitutional rights.

Although it would perhaps be unfair to force Fabricant to object to usurpation if he

was unaware of the intrusion, Fabricant has not shown that to be the case here. He

has pointed to no particular act or illegal usurpation of which he did not become

aware before the end of trial.

      Fabricant has also failed to show that his rights were violated when his co-

counsel attended a sidebar conference alone. His case is notably different from

Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008) (en banc). The record suggests that


                                           5
Fabricant was in court at the time, that he had requested co-counsel, and that he

had agreed to a much larger role for co-counsel. Further, the record provides no

information as to the content of the sidebar. There is thus no indication that his

Faretta rights were violated. See id. at 732.

      d.     Right to presence at sidebar conference

      In addition to arguing that his Faretta rights were violated because he was

not included at an end-of-trial sidebar, Fabricant further claims his constitutional

right to be present was violated by his alleged exclusion. United States v. Gagnon,

470 U.S. 522, 526 (1985) (per curiam). Because Fabricant does not indicate any

other specific bench conferences or sidebars from which he was excluded, we

presume he bases this claim on the same sidebar indicated in his Faretta

arguments.

      The defendant has a right of presence “whenever his presence has a relation,

reasonably substantial, to the fulness of his opportunity to defend against the

charge. . . . [T]he presence of a defendant is a condition of due process to the

extent that a fair and just hearing would be thwarted by his absence, and to that

extent only.” United States v. Long, 301 F.3d 1095, 1102 (9th Cir. 2002) (quoting

Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108 (1934)). Even if Fabricant had

shown that he had a right to be at the sidebar in question, we hold that he waived


                                           6
this right. In the absence of such a waiver, any error was harmless. Rose v. Clark,

478 U.S. 570, 576 (1986).

        e.    Admission of testimony from first trial

        Fabricant argues that the trial court erred by allowing the prosecution at his

second trial to read to the jury portions of his testimony from his first trial.

Fabricant did not take the stand at his second trial. He contends that the testimony

should not have been admitted because it falls under the rule of Harrison v. United

States, 392 U.S. 219 (1968). Alternatively, he argues that he should have been

permitted to introduce the entirety of his testimony pursuant to Federal Rule of

Evidence 106. The standard of review is disputed, but we find that Fabricant’s

claims fail regardless of the standard applied.

        We hold that the Harrison exception to the rule that a defendant’s prior

testimony is admissible in a subsequent proceeding does not apply in this case.

The government has met its burden to show that Fabricant did not testify at his first

trial in order to impeach the testimony of the confidential informant. Instead, he

testified to present an independent narrative of events and challenge the factual

claims of the state; this motivation to testify was unrelated to the district court’s

error in limiting cross-examination of the confidential informant about his criminal

acts.


                                            7
      We further hold that there was no error under Rule 106. This rule can be

used to admit a complete statement or additional statement “to correct a misleading

impression” created by the other party’s admission of parts of the statement out of

context. United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). Fabricant has

made no showing, at trial or on appeal, that the whole transcript or additional

excerpts were needed to clarify or correct misleading impressions given by the

government’s excerpts.

      f.     Right to testify in narrative form

      Fabricant argues that the district court infringed on his right to testify when

it required that, should he take the stand, co-counsel examine him in question-and-

answer format. “[A] defendant's claim that he was deprived of his Sixth

Amendment right to testify is reviewed de novo.” United States v. Pino-Noriega,

189 F.3d 1089, 1094 (9th Cir. 1999).

      “Restrictions on a defendant's right to testify violate the Constitution only

when they are arbitrary or disproportionate to the purposes they are designed to

serve.” United States v. Gallagher, 99 F.3d 329, 332 (9th Cir. 1996). Given the

district court’s experience with Fabricant’s testimony at his first trial, prior

statements in court, and opening statement, it cannot be said that this limited

restriction was arbitrary or disproportionate.


                                            8
      g.     Right to a simple possession instruction

      Fabricant argues that the district court erred in failing to give a simple

possession instruction regarding his possession with intent to distribute charge.

Because Fabricant failed to object below, we review for plain error. Even if the

district court erred, any error was not plain. See United States v. Lone Bear, 579

F.2d 522, 523–24 (9th Cir. 1978).

      h.     Cumulative error under the Fifth Amendment

      “In some cases, although no single trial error examined in isolation is

sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors

may still prejudice a defendant.” United States v. Wilkes, 662 F.3d 524, 542 (9th

Cir. 2011) cert. denied, 132 S. Ct. 2119 (2012) (quoting United States v. Frederick,

78 F.3d 1370, 1381 (9th Cir.1996)) . Fabricant has not shown multiple errors, let

alone cumulative errors that produce sufficient prejudice to warrant a new trial.

      i.     Failure to grant a new hearing under 21 U.S.C. § 851

      Fabricant argues that the district court erred in refusing to grant a new

hearing under 21 U.S.C. § 851 for litigation of his prior convictions. If there was

error (which we do not decide), any error was harmless.

      j.     Constitutional validity of prior convictions




                                           9
      Fabricant argues that the district court erred in finding in his § 851 hearing

that his prior convictions were not constitutionally infirm due to violations of his

right to counsel. 21 U.S.C. § 851(b). Although the case law on the standard of

review is not entirely clear, we hold there was no error even if review is de novo.

Fabricant bears the burden of showing that the prior convictions are

constitutionally invalid. United States v. Mulloy, 3 F.3d 1337, 1339 (9th Cir.

1993). Only two convictions need be valid to trigger the mandatory minimum

sentence, and the government presented six convictions. At a minimum, Fabricant

has failed to show that the May 1998 conviction, the July 1990 conviction, and the

two April 1988 convictions were constitutionally invalid.

      k.     Eighth Amendment violation

      Fabricant argues that a mandatory minimum life sentence for distributing

relatively small amounts of methamphetamine is cruel and unusual punishment

because it is unconstitutionally disproportionate. We review de novo whether a

sentence violates the Eighth Amendment. United States v. Meiners, 485 F.3d

1211, 1212-13 (9th Cir. 2007). Fabricant cannot show that the offense and

sentence raises an inference of “gross disproportionality” under controlling case

law. Harmelin v. Michigan, 501 U.S. 957, 961, 995 (1991); United States v.




                                          10
Jensen, 425 F.3d 698, 707 (9th Cir. 2005); United States v. Van Winrow, 951 F.2d

1069, 1071 (9th Cir. 1991).

       l.      Remand to a new district judge

       Fabricant’s request that the case be remanded to a new district judge is moot

in light of the above.

II.       Motion for Return of Property, 10-50032

       We review the denial of a Rule 41(g) motion de novo. United States v.

Ritchie, 342 F.3d 903, 906 (9th Cir. 2003). We hold that the trial court properly

dismissed the Rule 41(g) motion, but we remand to the district court to allow

Fabricant to amend and file a civil suit for return of property.

III.   Motion for Preservation of Evidence, 12-50065

       We determine our own subject matter jurisdiction de novo. Nat’l Ass’n of

Agric. Employees v. Fed. Labor Relations Auth., 473 F.3d 983, 986 (9th Cir.

2007). We hold that we have discretion to hear this appeal because it is not an

interlocutory appeal from Fabricant’s criminal appeal but an independent legal

action.

       “We review a lower court’s decision to grant, lift, or modify a protective

order for abuse of discretion.” Phillips ex rel. Estates of Byrd v. Gen. Motors

Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). We conclude that there was no abuse


                                           11
of discretion by the trial court because Fabricant alleged no actual risk of improper

destruction of the evidence.

      Nos. 09-50657 and 12-50065 AFFIRMED.

      No. 10-50032 VACATED and REMANDED.




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