United States v. Jacorey Taylor , 617 F. App'x 671 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10572
Plaintiff - Appellee, D.C. No. 2:08-cr-00283-RCJ-
PAL-5
v.
JACOREY TAYLOR, AKA Mo-B, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted June 8, 2015
San Francisco, California
Before: SILVERMAN, GOULD, and HURWITZ, Circuit Judges.
Jacorey Taylor appeals his convictions for 1) conspiracy to engage in a
racketeering influenced corruption organization, 18 U.S.C. § 1962(d); 2) violent
crime in aid of racketeering, 18 U.S.C. §§ 1959(a)(1) & (2); 3) use of a firearm
during a crime of violence, 18 U.S.C. § 924(c)(1); 4) conspiracy to engage in drug
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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trafficking, 21 U.S.C. § 846; and 5) two counts of possession with intent to
distribute a controlled substance, 21 U.S.C. § 841(a)(1) & (b)(1)(C)(iii). We
AFFIRM.
1. Motion for Judgment of Acquittal
Where, as here, the defendant did not renew his Federal Rule of Criminal
Procedure 29 motion for judgment of acquittal following the close of his own case,
we review the denial of that motion for plain error. United States v. Cruz, 554 F.3d
840, 844 (9th Cir. 2009); United States v. Patton, 771 F.2d 1240, 1243 (9th Cir.
1985). Taylor’s main argument is that defense witnesses testified to his innocence.
On a Rule 29 motion, however, the court must construe the evidence in the light
most favorable to the government. United States v. Odom, 329 F.3d 1032, 1034
(9th Cir. 2003).
Resolving all credibility issues in the government’s favor, it is clear that the
district court did not err in denying Taylor’s motion. Without even looking to
Taylor’s many admissions of guilt during his testimony, the testimony of the
government’s numerous witnesses provided more than sufficient evidence from
which a rational juror could find the Playboy Bloods are a RICO enterprise, Taylor
joined the enterprise with knowledge of its purpose and that at least two predicate
acts would be committed, there was a nexus between the predicate acts and the
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activities of the enterprise, and Taylor was present with a gun when Billy Ray
Thomas was murdered.
2. Evidentiary Rulings
We review a district court’s admission of evidence for abuse of discretion
when the defendant timely objected and for plain error when he raised the
objection for the first time on appeal.1 United States v. Hieng, 679 F.3d 1131,
1135 (9th Cir. 2012).
Taylor objected to Agent Shields’ testimony that Jessie James Cooper told
him Cooper and Taylor had discussed Taylor’s robbery of the Gold Rush casino in
Henderson and desire to rob other casinos as well. The district court admitted this
evidence not as prior bad acts but rather only as proof of Cooper’s prior
inconsistent statements after Cooper testified he did not know who committed the
Klondike casino robbery with him and that the person he knew as “Corey” was not
Taylor. It was not introduced for the truth of the matter asserted – nor should it
have been – nor does Taylor make a hearsay argument on appeal. Furthermore, the
1
Taylor waived any objection to evidence he shot a man named Rendell
Bright by raising the issue first. Ohler v. United States, 529 U.S. 753, 755-56
(2000); McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 954
(9th Cir. 2011).
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judge gave a limiting instruction to the jury that the evidence could only be
considered for impeachment.
Taylor did not object on Federal Rule of Evidence 404(b) grounds to the rest
of the evidence he now contends was erroneously admitted. None of that evidence
was admitted as character evidence, but rather as direct proof of the existence of
the RICO enterprise, its method of operation, and the predicate acts of racketeering
activity charged in the indictment. The evidence was therefore highly relevant to
the RICO count, not unduly prejudicial, and not unfair character evidence. Its
admission was not in error. United States v. Moorehead, 57 F.3d 875, 878 (9th
Cir. 1995); United States v. Robertson, 15 F.3d 862, 871 (9th Cir. 1994), reversed
on other grounds by 514 U.S. 669 (1995); United States v. Baker, 10 F.3d 1374,
1413 (9th Cir. 1993), overruled on other grounds by Apprendi v. New Jersey, 530
U.S. 466 (2000).
3. Jury Instructions
We review the legal accuracy of a jury instruction de novo. United States v.
Knapp, 120 F.3d 928, 930 (9th Cir. 1997). We review a district court’s precise
formulation of jury instructions for abuse of discretion. United States v. Long, 301
F.3d 1095, 1104 (9th Cir. 2002) (per curiam).
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Although the district court erred in giving the Pinkerton instruction as to the
substantive drug trafficking offenses charged in Counts 17 and 18 because Taylor
was not charged in those counts with conspiracy, the error was harmless. United
States v. Nakai, 413 F.3d 1019, 1023 (9th Cir. 2005), cert. denied, 546 U.S. 995
(2005); see also Pinkerton v. United States, 328 U.S. 640 (1946). The evidence
overwhelmingly showed that Taylor committed the substantive offenses as a
principal and/or aider and abetter. Taylor admitted Count 18 on the witness stand
and the government presented damning and unrebutted evidence – including audio
recordings from a wire worn by an informant – demonstrating that Taylor at the
very least aided and abetted the drug sale charged in Count 17.
Taylor abandoned any argument that the district court erred in refusing to
give his four requested instructions by failing to articulate until his reply brief why
he believes the district court erred. Fed. R. App. P. 28(a)(8)(A); United States v.
Berber-Tinoco, 510 F.3d 1083, 1089 n.2 (9th Cir. 2007); United States v. Kimble,
107 F.3d 712, 715 n.2 (9th Cir. 1997).
4. Dismissal of Juror
We review the dismissal of a juror during deliberations for abuse of
discretion. United States v. Symington, 195 F.3d 1080, 1085 (9th Cir. 1999).
“[T]he district court [is] in the ‘best position’ to evaluate the jury’s ability to
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deliberate[.]” United States v. Beard, 161 F.3d 1190, 1193 (9th Cir. 1998) (citing
United States v. Ross, 886 F.2d 263, 267 (9th Cir. 1989)). “Under the abuse-of-
discretion standard, we must affirm unless we are ‘left with the definite and firm
conviction that the [district] court committed a clear error of judgment in reaching
its conclusion after weighing the relevant factors.’” United States v. Egbuniwe,
969 F.2d 757, 761 (9th Cir. 1992) (citing United States v. BNS, Inc., 858 F.2d 456,
464 (9th Cir. 1988)).
The district court conducted a sufficient inquiry into Juror #3's ability to
deliberate and the evidence showed she could not because she could not understand
the law governing the case. There was no evidence indicating the juror’s conflict
with the other jurors stemmed from her view of the merits of the case and no
evidence before the court regarding what her views of the merits were. The court
did not abuse its discretion in finding good cause existed to dismiss Juror #3. Fed.
R. Crim. P. 23(b)(3); Symington, 195 F.3d at 1085; United States v. Walsh, 75 F.3d
1, 4-5 (1st Cir. 1996).
In accordance with Federal Rule of Criminal Procedure 24(c)(3), the court
instructed the reconstituted jury to begin its deliberations anew and the fact that the
jury returned a guilty verdict several hours later is no indication it failed to do so.
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“A jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. 225,
234 (2000).
AFFIRMED.