United States v. Gary Large , 599 F. App'x 632 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10236
Plaintiff - Appellee, D.C. No. 2:10-cr-01296-ROS-1
v.
MEMORANDUM*
GARY LEE LARGE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Submitted March 9, 2015**
San Francisco, California
Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.
Gary Large appeals from his jury conviction of six counts of making a false
statement in connection with the acquisition of a firearm, one count of conspiracy
to make a false statement in connection with the acquisition of a firearm, and one
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
count of possession of a firearm with an obliterated serial number. Large claims
that there was insufficient evidence at trial to convict him of these offenses, and
claims that the jury instructions for possession of a firearm with an obliterated
serial number were given in error. Because the parties are familiar with the facts
and procedural history of this case, we repeat only those facts necessary to resolve
the issues raised on appeal. We affirm.
“We review de novo the district court's denial of a motion for judgment of
acquittal based on insufficient evidence.” United States v. Ruiz-Lopez, 749 F.3d
1138, 1141 (9th Cir. 2014) (internal citation omitted). Additionally, “we view the
evidence in the light most favorable to the prosecution, and then determine whether
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. Using this standard, we hold that there was
sufficient evidence for a reasonable trier of fact to find Large guilty of making
false statements in connection with the acquisition of firearms, conspiracy to make
a false statement in connection with the acquisition of a firearm, and possession of
a firearm with an obliterated serial number. On multiple firearms transfer records,
Large listed addresses other than his current residential address, and he claimed
that he was the "actual transferee/buyer" of the guns, despite the fact that he did not
have the means to acquire dozens of guns for himself. The jury also heard
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testimony that Large and neighbors at his apartment complex had agreed to
participate in a gun-buying scheme. Finally, the jury heard testimony from
Salvador Resa from which it could reasonably conclude that Large himself had
removed the serial number from the firearm at issue in Count 8.
“We review a complaint regarding jury instruction for plain error where a
defendant neither proposed nor objected to a jury instruction.” United States v.
Lopez, 477 F.3d 1110, 1113 (9th Cir. 2007) (internal citation omitted). “[B]efore
an appellate court can correct an error not raised at trial, there must be (1) error, (2)
that is plain, and (3) that affect[s] substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67 (1997)
(internal quotations and citations omitted). Large has failed to meet this standard
as the district court’s jury instructions for possession of a firearm with an
obliterated serial number were not erroneous. The district court followed this
circuit's model instructions, which required the jury to find that Large knew the FN
pistol's serial number was obliterated.
AFFIRMED.
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