                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             DEC 20 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-50181

              Plaintiff-Appellee,                D.C. No. CR 13-00044-VAP-1
 v.

CURTIS HAYS, II,                                 MEMORANDUM*

              Defendants-Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted December 8, 2016
                              Pasadena, California

Before: NGUYEN and OWENS, Circuit Judges, and KORMAN,** District Judge.

      Curtis Hays (“Hays”) appeals his jury convictions of one count of

conspiracy in violation of 18 U.S.C. § 371, six counts of theft of firearms in

interstate and foreign commerce in violation of 18 U.S.C. § 924(l), six counts of

receipt and possession of stolen firearms in violation of 18 U.S.C. § 922(j) and

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
§ 924(a)(2), and two counts of theft, receipt, and possession of interstate and

foreign shipments in violation of 18 U.S.C. § 659. On appeal, Hays argues that

there was insufficient evidence to support the verdicts in this case. He also

contends that the district court erred in admitting evidence of two uncharged thefts

and out-of-court co-conspirator statements. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

I. Sufficiency of Evidence

      We review de novo a claim challenging the sufficiency of the evidence

supporting a verdict. See United States v. Webster, 623 F.3d 901, 907 (9th Cir.

2010). In assessing whether the verdicts were supported by sufficient evidence,

“the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original). Circumstantial evidence may be

sufficient to sustain a conviction, provided that the inferences drawn from it are

supported by a chain of logic. See United States v. Toro-Barboza, 673 F.3d 1136,

1144 (9th Cir. 2012). Here, overwhelming circumstantial evidence provided a

forceful chain of logic that would permit a reasonable trier of fact to find the

elements of the crime beyond a reasonable doubt on all counts. Hays was one of


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only three United Parcel Service drivers who worked at the facility on every day

the packages were stolen. In each of the thefts, Hays was either the primary driver

for the destination of the stolen goods, or an overflow driver. Evidence from the

stolen packages was found in alleged co-conspirator’s White’s home, car, and

self-storage facility. Telephone records demonstrated that Hays and White spoke

by telephone on each date a theft occurred, and cellular tower data showed that

they came within close proximity of one another on each of these dates. Text

messages between two alleged co-conspirators used Hays’s first name when

referring to the source of the stolen goods, and testimony at trial further identified

the source as a United Parcel Service employee. Viewing this evidence in the light

most favorable to the government, we find that a rational jury could have found

Hays guilty, beyond a reasonable doubt, on all counts.

      Hays’s argument that the buyer-seller rule precludes a conviction for

conspiracy is unavailing. Under the buyer-seller rule, mere sales to other

individuals do not establish a conspiracy to distribute or possess with intent to

distribute; rather, “conspiracy requires proof of an agreement to commit a crime

other than the crime that consists of the sale itself.” United States v. Lapier, 796

F.3d 1090, 1095 (9th Cir. 2015) (quoting United States v. Moe, 781 F.3d 1120,

1123 (9th Cir. 2015)). While we have applied the buyer-seller rule in cases where


                                           3
the defendant is charged with conspiracy to distribute a controlled substance, the

rule has no application here because the single conspiracy charged in the

indictment was not a conspiracy to distribute the firearms and other goods. See

United States v. Rodman, 776 F.3d 638, 644 (9th Cir. 2015). Moreover, we have

held that “[d]istinguishing between a conspiracy and a buyer-seller relationship

requires a fact-intensive and context-dependent inquiry[,]” and Hays failed to raise

the buyer-seller rule argument before the district court. Moe, 781 F.3d at 1125.

Here, as in Moe, the jury instructions on the conspiracy that was charged properly

explained the elements of conspiracy. See id. at 1128-29 (finding no error where

the district court declined to give a buyer-seller instruction to the jury, where the

instructions properly explained to the jury that a conspiracy involves a criminal

partnership and a plan to commit overt acts).

II. Evidentiary Rulings

      Evidentiary rulings are reviewed for an abuse of discretion. United States v.

McFall, 558 F.3d 951, 960 (9th Cir. 2009). Hays first argues that Federal Rule of

Evidence 404(b) prohibited the admission of evidence of two uncharged thefts.

However, this evidence was not subject to Rule 404(b), as both thefts occurred

within the temporal scope of the conspiracy and comprised the conspiracy. See

United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir. 2004).


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      Finally, Hays challenges the admission of out-of-court statements by his

alleged co-conspirators. The district court was well within its discretion in

determining that the government had made a sufficient proffer as to the existence

of a conspiracy. See Bourjaily v. United States, 483 U.S. 171, 176 (1987). The

statements were made during the course and in furtherance of the conspiracy, and

accordingly, fell within the hearsay exception of Federal Rule of Evidence

801(d)(2)(E). Thus, the court did not abuse its discretion in admitting these

statements.

      AFFIRMED.




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