United States v. Robert Kimmell ( 2018 )

FILED
NOT FOR PUBLICATION
JUN 04 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10290
Plaintiff-Appellee, D.C. No.
3:14-cr-00054-RCJ-VPC-1
v.
ROBERT KIMMELL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted January 10, 2018
San Francisco, California
Before: THOMAS, Chief Judge, and RAWLINSON and WATFORD, Circuit
Judges.
Robert Kimmell (Kimmell) appeals his conviction following a jury trial. For
the following reasons, we affirm the conviction and remand for correction of the
clerical error in the judgment.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The district court did not abuse its discretion in denying Kimmell’s
motion for disclosure of the informant’s identity without conducting an in camera
hearing. See United States v. Henderson, 241 F.3d 638, 646 (9th Cir. 2000), as
amended (noting abuse of discretion standard of review). Kimmell failed to make
a minimal threshold showing that “disclosure would be relevant to at least one
defense.” United States v. Spires, 3 F.3d 1234, 1238 (9th Cir. 1993) (citation
omitted). Neither did Kimmell establish that disclosure of the informant was
“relevant and helpful to the defense of the accused, or essential to a fair
determination of the defendant’s cause.” United States v. Rowland, 464 F.3d 899,
904 (9th Cir. 2006) (citation omitted).
2. The district court properly denied relief on Kimmell’s Franks1 claim.
Given the police dog’s positive alert outside Kimmell’s storage unit, Kimmell
failed to “make a substantial preliminary showing” that “the affidavit [could not]
support a finding of probable cause [to search the storage unit] without the
allegedly false information.” United States v. Kleinman, 880 F.3d 1020, 1038 (9th
Cir. 2018), as amended (citation omitted).
3. We cannot say that the district court’s discretionary decisions to admit
the chase, backyard, and text message evidence merit reversal when the record
1
Franks v. Delaware, 438 U.S. 154 (1978).
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does not reflect that the evidentiary rulings “more likely than not affected the
verdict.” United States v. Martin, 796 F.3d 1101, 1105 (9th Cir. 2015) (citation
omitted).
4. Any error in seating the second alternate juror, rather than waiting for
the first alternate juror to arrive, was harmless. See United States v. McFarland, 34
F.3d 1508, 1515 (9th Cir. 1994) (denying relief absent evidence that the seated
juror would have been any more “influenced or influential”).
5. The district court did not plainly err by failing to specifically ask
whether the alternate juror discussed the case with anyone before being seated,
because the district court had previously admonished the jurors not to
communicate with anyone during the course of their duty, and reminded the
alternate juror that he was still under oath before instructing the jury to begin
deliberations anew. See United States v. Alexander, 48 F.3d 1477, 1485 (9th Cir.
1995) (denying relief absent a showing of prejudice).
6. Kimmell waived any challenge to the special verdict form by
objecting to a special verdict form for Count Four. Thus, any error in using the
special verdict form was invited error. See United States v. Kaplan, 836 F.3d
1199, 1217 (9th Cir. 2016).
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7. When a defendant moves for judgment of acquittal on a specific
ground, other grounds not raised are waived. See United States v. Graf, 610 F.3d
1148, 1166 (9th Cir. 2010). Kimmell’s arguments regarding the sufficiency of the
evidence for Counts Two, Three, and Six are waived because he failed to make
them before the district court. We therefore review the sufficiency-of-the-evidence
claim on the waived grounds only “to prevent a manifest miscarriage of justice.”
Id. (citation omitted). We conclude that given the evidence presented, and drawing
all inferences in favor of the government, Kimmell’s convictions were not a
manifest miscarriage of justice. See United States v. Ubaldo, 859 F.3d 690, 699
(9th Cir. 2017).
8. The judgment incorrectly states that Kimmell was convicted of
possession with intent to distribute a controlled substance in Count Four.
However, the record reflects that the jury actually convicted Kimmell of the lesser
included crime of simple possession, and Kimmell was sentenced accordingly. On
remand, the judgment should be corrected to reflect the actual verdict of the jury
on Count Four, possession of a controlled substance. See United States v.
Rivera-Sanchez, 222 F.3d 1057, 1059 (9th Cir. 2000).
AFFIRMED AND REMANDED FOR CORRECTION OF
JUDGMENT.
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