                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 29 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50381

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00304-JFW-1

  v.
                                                 MEMORANDUM*
CLINTON ELWYN THOMPSON, III,
AKA Darion Jones, AKA Calvin Leon
Thompson, AKA Clinton Edwin
Thompson, AKA Clinton Elway
Thompson, AKA Clinton Elwin
Thompson, III,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50479

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00304-JFW-2

  v.

TAVRION DAWSON,

              Defendant - Appellant.



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

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UNITED STATES OF AMERICA,                        No. 11-50081

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00304-JFW-3

  v.

SAMUEL ANTHONY EATON, AKA
Samuel Eaton,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                        Argued and Submitted April 8, 2013
                               Pasadena, California

Before: REINHARDT and MURGUIA, Circuit Judges, and MOLLOY, District
Judge.**

       In an opinion filed concurrently with this memorandum disposition, we

reverse all defendants’ convictions under 18 U.S.C. § 844(h)(1) and (m). Here, we

consider and affirm appeals by defendants Clinton Thompson, III and Tavrion

Dawson that relate to their counts of bank larceny. They jointly contend that the

district court erred by denying their motion to instruct the jury regarding



       **
             The Honorable Donald W. Molloy, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.

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withdrawal as a defense to aiding and abetting the crime. Dawson independently

appeals the district court’s denial of his proposed “mere presence” instruction and

contends that the prosecution did not present sufficient evidence to support his

conviction. We reject each of these grounds for appeal and, thus, affirm

Thompson’s and Dawson’s convictions for aiding and abetting the bank larceny.

      1.     Assuming, without deciding, that withdrawal is an appropriate defense

to aiding and abetting liability, we nonetheless conclude that Thompson and

Dawson both completed an act of assisting the bank larceny before they withdrew.

Thompson delivered the thermal lance, and Dawson delivered a hammer. Even if

we accept that Thompson and Dawson went home after the delivery, deciding not

to serve as lookouts, they had already substantially aided the commission of the

crime by bringing the tools that were important to the commission of the crime.

Because “withdrawal will not shield a defendant from liability for [crimes] that are

an inevitable consequence of actions taken while a participant in the scheme,”

United States v. Lothian, 976 F.2d 1252, 1263 (9th Cir. 1992), the defendants

could not meet their burden of proving withdrawal by merely going home, Smith v.

United States, 133 S. Ct. 7134, 719 (2013) (establishing that the burden is on the

defendant to prove withdrawal). We therefore affirm the district court’s decision

not to instruct the jury on withdrawal.

                                          3
      2.       The district court did not err in denying Dawson’s “mere presence”

instruction because the other instructions, in their entirety, adequately cover that

defense. United States v. Thomas, 612 F.3d 1107, 1120-22 (9th Cir. 2010). The

district court’s instructions on conspiracy stated that “[a] person does not become a

conspirator merely by associating with one or more persons who are conspirators,

nor merely by knowing that a conspiracy exists” and that “[i]t is not enough that

the defendant merely associated with the person committing the crime . . . or was

present at the scene of the crime.” Because these instructions adequately address

Dawson’s “mere presence” theory, we affirm the district court’s denial of this

instruction.

      3.       In determining whether the evidence presented at trial was sufficient

to convict Dawson of aiding and abetting the bank larceny, we are obliged to

construe the evidence “in the light most favorable to the prosecution” and only

then determine whether “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); see also McDaniel v. Brown, 130 S. Ct. 665, 673 (2010). First,

we “must presume . . . that the trier of fact resolved any such conflict[ing evidence]

in favor of the prosecution, and must defer to that resolution.” Jackson, 433 U.S.

at 326. Second, the “reviewing court may not ask itself whether it believes that the

                                           4
evidence at trial established guilt beyond a reasonable doubt, only whether any

rational trier of fact could have made that finding.” United States v. Nevils, 598

F.3d 1158, 1164 (9th Cir. 2010) (internal citations omitted).

      Drawing inferences from the evidence presented at trial in a light most

favorable to the prosecution, we conclude that a rational trier of fact could have

found beyond a reasonable doubt that Dawson was guilty of aiding and abetting the

bank larceny. Although Thompson and Williams (a co-conspirator who testified as

the prosecution’s witness as a part of his plea bargain) testified that Dawson was

not at all involved in the agreement to commit the bank larceny, the prosecution

presented sufficient evidence to prove Dawson’s involvement and support of the

crime. For example, cellular phone records show nearly forty-five calls between

Dawson and Samuel Eaton, the leader of the conspiracy, during the evening of the

crime. These records show that Dawson was in the vicinity of the bank (20 miles

from his home) and in contact with Eaton until 4:30 a.m., during which time Eaton

and Williams were inside the bank committing the larceny. Additionally, police

officers testified that Dawson drove away from the police stop with the thermal

lance components, which found their way to Eaton and Williams at the bank

shortly thereafter. Considering the evidence in a light most favorable to the

prosecution, and resolving all conflicting inferences against Dawson, we conclude

                                          5
that a rational juror could find beyond a reasonable doubt that Dawson was a

knowing participant in the conspiracy, despite any conflicting testimony in his

favor. Accordingly, we affirm the conviction; our disposition of the sentences is

set forth in the opinion filed concurrently herewith.

AFFIRMED.




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