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United States v. Frank Steffensen , 393 F. App'x 440 ( 2010 )


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  •                            NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS                            FILED
FOR THE NINTH CIRCUIT                             AUG 25 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 09-30035
Plaintiff - Appellee,              D.C. No. 4:08-CR-00006-RRB-1
v.
MEMORANDUM*
FRANK STEFFENSEN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted July 29, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
A jury convicted Frank Steffensen of knowingly possessing with intent to
distribute five grams or more of a mixture or substance containing cocaine base, in
violation of
    21 U.S.C. § 841
    (a)(1) and (b)(1)(B). The district court sentenced him
to 168 months’ imprisonment. Steffensen timely appeals.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The district court did not abuse its discretion by admitting evidence of other
acts committed by Steffensen under Federal Rules of Evidence 404(b) and 403.
The government presented sufficient evidence to support a finding by the jury that
Steffensen committed the other acts, see United States v. Johnson,
    132 F.3d 1279
    ,
1283 (9th Cir. 1997), and his 1993 offense of conviction was “sufficiently similar
to the charged conduct to render it probative despite the passage of time,”
    id.
     After
a careful review of the record, we find unpersuasive Steffensen’s contentions that
admission of the “other acts” evidence violated Brady v. Maryland,
    373 U.S. 83
    (1963), Giglio v. United States,
    405 U.S. 150
     (1972), or Federal Rule of Criminal
Procedure 26.2.
The district court did not abuse its discretion by allowing Special Agent
Nyfeler to testify both as a fact witness and as an expert witness. See United States
v. Anchrum,
    590 F.3d 795
    , 804 (9th Cir. 2009). The admission of Nyfeler’s
testimony was not plain error in violation of Federal Rule of Evidence 704(b), see
United States v. Gomez-Norena,
    908 F.2d 497
    , 502 (9th Cir. 1990), and Nyfeler
did not engage in improper vouching, see United States v. McKenna,
    327 F.3d 830
    ,
842 (9th Cir. 2003) (“Improper vouching occurs where the prosecutor places the
prestige of the government behind a witness . . . .” (emphasis added) (internal
quotation marks omitted)).
2
The district court did not abuse its discretion by failing to give Steffensen’s
Proposed Instruction No. D or by failing to require the jury to return a special
verdict on the quantity of cocaine base he possessed for his personal use. See
United States v. Echeverry,
    759 F.2d 1451
    , 1455 (9th Cir. 1985). Nor did the
district court abuse its discretion by failing to give Steffensen’s proposed “addict”
instruction, see United States v. Vgeri,
    51 F.3d 876
    , 881 (9th Cir. 1995), or by
instructing the jury that an intent to distribute need not entail a financial motive,
see United States v. Heredia,
    483 F.3d 913
    , 923 (9th Cir. 2007) (en banc).
Steffensen’s equal protection challenge to the statutory minimum sentence
prescribed by § 841(b)(1)(B) is foreclosed by United States v. Harding,
    971 F.2d 410
    , 414 (9th Cir. 1992), and his Eighth Amendment challenge is foreclosed by
United States v. Norwood,
    603 F.3d 1063
    , 1071 (9th Cir. 2010). Giving due
deference to the district court’s consideration of the factors set forth in
    18 U.S.C. § 3553
    (a), see Gall v. United States,
    552 U.S. 38
    , 51 (2007), we conclude that
Steffensen’s sentence is not substantively unreasonable.
The judgment of the district court is
AFFIRMED.
3