factual findings at sentencing are reviewed for clear error
How later courts described this case
- factual findings at sentencing are reviewed for clear error
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30281
Plaintiff-Appellee, D.C. No.
2:15-cr-00083-RMP-1
v.
JASON C. BROWN, MEMORANDUM*
and
Defendant-Appellant. ORDER
UNITED STATES OF AMERICA, No. 16-30287
Plaintiff-Appellee, D.C. No.
2:14-cr-00021-RMP-25
v.
JASON C. BROWN,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted December 3, 2018**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.
Jason Brown appeals his conviction and sentence for conspiracy to obstruct
justice by retaliation against a witness.1 Because the parties are familiar with the
facts, we do not recite them here. We have jurisdiction under 28 U.S.C. § 1291.
We affirm.
Conviction
Substantial evidence supports the jury’s guilty verdict. Jackson v. Virginia,
443 U.S. 307, 319 (1979). Brown acknowledges that at his earlier trial for
conspiracy to distribute controlled substances, he wrongfully obtained sealed trial
exhibits revealing the identity and expected testimony of an anonymous
cooperator. At the trial for conspiracy to obstruct justice, the Government
presented evidence that Brown learned the cooperator’s identity, harbored ill-will
toward the cooperator, reproduced the information, and disseminated information
on the cooperator to associates, including to his alleged co-conspirator. Brown’s
alleged co-conspirator confirmed that he had received and disseminated the
information. The Government’s gang expert testified at length about Brown’s and
his alleged co-conspirator’s gang membership, contextualized their
communications, and identified the risk they posed to the cooperator. A rational
1
Brown withdrew his appeal in Case No. 16-30287. That appeal is DISMISSED.
Brown also withdrew his argument that he received ineffective assistance of
counsel, so we do not address that issue.
2
factfinder could have inferred from this circumstantial evidence that Brown and his
alleged co-conspirator agreed to retaliate against the cooperator and took at least
one overt act—most evidently, reproducing and disseminating the cooperator’s
information—to that end.
The district court did not abuse its discretion by permitting testimony from
the Government’s gang expert under Federal Rules of Evidence 403 and 702. See
United States v. Hankey, 203 F.3d 1160, 1166 (9th Cir. 2000). The expert’s
knowledge and experience qualified him to testify, his testimony stuck to matters
within his expertise and personal knowledge, and the topics he covered were
directly relevant to core factual issues.
Even assuming that Brown preserved his constructive amendment argument
and reviewing the issue de novo, United States v. Ward, 747 F.3d 1184, 1188 (9th
Cir. 2014), the Government did not constructively amend the indictment to assert
that possession alone constitutes an overt act. The Government did not clearly
identify possession as a standalone overt act when, in commencing its closing
argument, it listed acts that included possession and then made passing reference to
“these . . . overt acts.” The Government later listed and expounded on the overt
acts in a manner faithful to the indictment. At most, the earlier reference was loose
language, and it did not amount to an effective amendment of the indictment.
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Sentence
We also affirm the district court’s decision at sentencing to group the
distribution and obstruction of justice offenses. Where, as here, the defendant is
convicted of both an obstruction offense and “the underlying offense (i.e., the
offense that is the object of the obstruction),” the Sentencing Guidelines point to
Section 3D1.2(c). U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2J1.2 cmt.
n.3 (U.S. Sentencing Comm’n 2014). Section 3D1.2 directs the court to group
counts “[w]hen one of the counts embodies conduct that is treated as a[n] . . .
adjustment to[] the guideline applicable to another of the counts,” id. § 3D1.2(c),
and the offenses are “closely related,” id. § 3D1.2 cmt. n.5.
The district court applied an upward adjustment because Brown’s
obstruction of justice targeted the “investigation, prosecution, or sentencing” of the
distribution charge and was closely related to the distribution offense. Id. § 3C1.1.
The court did not clearly err in finding that Brown took the evidence during the
distribution trial, before reaching a plea agreement and before sentencing. See
United States v. Stoterau, 524 F.3d 988, 997 (9th Cir. 2008) (factual findings at
sentencing are reviewed for clear error). Based on these findings, the prosecution
was ongoing and the sentencing had not occurred when the obstruction began.
U.S.S.G. § 3C1.1. The obstruction and distribution offenses were also closely
related, in that Brown obstructed justice by targeting a witness in his ongoing
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distribution prosecution. See id. § 3D1.2 cmt. n.5. The district court acted within
its discretion in applying the obstruction enhancement and grouping the offenses.
AFFIRMED.
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