United States v. Dennis Mahon , 620 F. App'x 571 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10273
Plaintiff - Appellee, D.C. No. 2:09-cr-00712-DGC-1
v.
MEMORANDUM*
DENNIS MAHON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted May 11, 2015
San Francisco, California
Before: THOMAS, Chief Judge and BENAVIDES,** and OWENS, Circuit Judges.
Dennis Mahon appeals his convictions under 18 U.S.C. §§ 844(i) and (n)
and § 842(p)(2)(A). In a separate published opinion, we consider whether the
evidence at trial satisfied the jurisdictional requirement of § 844(i). Here, we
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
consider Mahon’s remaining nine claims and conclude that there is no basis for
reversal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
First, the district court did not err when it restricted cross examination on the
informant’s work at an escort service. “[T]here were other legitimate interests
outweighing the defendant’s interest” in examining the nature of her work and,
despite the restriction, there was sufficient information for the jury to assess the
informant’s credibility. United States v. Larson, 495 F.3d 1094, 1103 (9th Cir.
2007) (en banc) (internal quotation marks omitted); United States v. Bonanno, 852
F.2d 434, 439 (9th Cir. 1988) (repeated questioning on witness’s bias, motive to
testify, and cooperation as an informant satisfied constitutional requirements).
Second, any error resulting from the district court’s suppression of the
informant’s tax returns did not result in a confrontation clause violation, as the
court did not bar the defense from inquiring about her taxes and limited its ruling
only to the use of the tax documents. See United States v. Vargas, 933 F.2d 701,
704, 708 (9th Cir. 1991). Any abuse of discretion resulting from the suppression
was harmless. See United States v. Brooks, 772 F.3d 1161, 1171-73 (9th Cir.
2014) (factors weighed in favor of the court’s sua sponte harmlessness
determination, where there was overwhelming evidence of guilt, even without the
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erroneously admitted statements); United States v. Gonzalez-Flores, 418 F.3d
1093, 1101 (9th Cir. 2005).
Third, the court did not abuse its discretion in permitting redirect
examination on the informant’s children. There is no error where an attorney seeks
to clarify on redirect issues raised during cross-examination. United States v. Chu,
5 F.3d 1244, 1251 (9th Cir. 1993); see United States v. Sarkisian, 197 F.3d 966,
989 (9th Cir. 1999) (“Because the prosecutor’s questions addressed an issue raised
by the cross-examination, there was no misconduct.”).
Fourth, the government’s use of a paid informant did not violate Mahon’s
due process rights. See United States v. Cuellar, 96 F.3d 1179, 1182-84 (9th Cir.
1996) (payment of $580,000 to an informant did not violate the defendant’s due
process rights or constitute outrageous government conduct).
Fifth, the evidence was sufficient to prove beyond a reasonable doubt that
the conduct enumerated in the count one conspiracy charge related to a single
overall agreement. See United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir.
2001) (government did not prove multiple conspiracies when it connected
everything back to the single agreement charged); United States v. Bibbero, 749
F.2d 581, 587 (9th Cir. 1984) (“A single conspiracy may involve several
subagreements . . . .”); United States v. Olano, 62 F.3d 1180, 1194 (9th Cir. 1995)
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(only a “‘slight connection’” is necessary and it can be “‘inferred from
circumstantial evidence’”).
Sixth, the district court’s refusal to give a specific unanimity jury instruction
on the conspiracy’s object was not an abuse of discretion. A general instruction
that the verdict must be unanimous is ordinarily sufficient. United States v.
Anguiano, 873 F.2d 1314, 1319 (9th Cir. 1989); United States v. Castro, 887 F.2d
988, 993 (9th Cir. 1989) (“When an indictment includes a single conspiracy count
conjunctively alleging multiple offenses, a jury may convict by finding a
conspiracy to commit any or all of the conjunctive acts alleged.”).
Seventh, the district court properly declined to dismiss count three and overt
acts three through twelve in count one as the government’s use of an informant was
not “so extreme as to violate[ ] fundamental fairness” or “so grossly shocking . . .
as to violate the universal sense of justice.” United States v. Black, 733 F.3d 294,
298 (9th Cir. 2013) (alterations in original) (internal quotation marks omitted); see
United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir. 1981) (per curiam)
(government’s role did not shock the sense of justice where it set up a fictional
scheme, “set its bait, [and] appellants responded without further inducement by the
government”); United States v. So, 755 F.2d 1350, 1353-54 (9th Cir. 1985) (no
outrageous conduct where defendant provided “creative inspiration” and technical
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arrangements for money laundering scheme and the government merely provided
“the funds and opportunity to launder money”).
Eighth, the district court did not miscalculate the Sentencing Guidelines base
offense level. Given the extensive record, the district court did not clearly err in
finding that the Diversity Office bombing created a substantial risk of death or
serious injury, qualifying Mahon for the cross-reference and higher base offense
level. See United States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010).
Finally, the district court did not err in denying Mahon’s motion to dismiss
the superseding indictment pursuant to an ex parte, sealed hearing and order. See
United States v. Kearns, 5 F.3d 1251, 1253-54 (9th Cir. 1993); United States v.
Ross, 372 F.3d 1097, 1110 (9th Cir. 2004).
AFFIRMED.
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