United States v. Wilbert Ross, III ( 2019 )

FILED
NOT FOR PUBLICATION
APR 30 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50260
Plaintiff-Appellee, D.C. No. 3:14-cr-01288-DMS-13
v.
MEMORANDUM*
WILBERT ROSS III, AKA Coy,
AKA Coy Blue, AKA Wilbert Ross,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50277
Plaintiff-Appellee, D.C. No. 3:14-cr-01288-DMS-9
v.
TERRY CARRY HOLLINS,
AKA Caby, AKA Caby-3 and 3,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50357
Plaintiff-Appellee, D.C. No. 3:14-cr-01288-DMS-12
v.
MARCUS ANTHONY FOREMAN,
AKA Missle,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50359
Plaintiff-Appellee, D.C. No. 3:14-cr-01288-DMS-10
v.
JERMAINE GERALD COOK,
AKA Tre-O,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted April 10, 2019
Pasadena, California
Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
Wilbert Ross III, Terry Carry Hollins, Marcus Anthony Foreman, and
Jermaine Gerald Cook appeal their convictions and life sentences for conspiring to
participate as gang members in violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(d). We address each of their seven
claims, and we affirm.
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1. Hollins, Foreman, and Ross were not wrongly denied self-representation
rights under Faretta v. California, 422 U.S. 806 (1975). The district court’s finding
that Hollins made his request for purposes of delay and not in good faith was not
clearly erroneous. Hollins made his first self-representation request twenty months
after his indictment and just a short time before trial. He made all his requests after
the court, in an effort to protect witnesses, had imposed limitations on the ability of
the defendants personally to receive advance information regarding the identity of
government witnesses. With most requests Hollins indicated a desire for more time
to prepare, which would have required continuing the firm trial date. Though he
ultimately said that he would proceed self-represented to trial as scheduled and
under the limitation imposed regarding witness information, the district court
explicitly noted in denying the request that Hollins had rights to both self-
representation and “meaningful representation,” creating a “Hobson’s choice for
the court.” See United States v. Farias, 618 F.3d 1049, 1053 (9th Cir. 2010). The
court had reason for concern that self-representation at that point would put both
the trial date and the discovery limitation in jeopardy. The request for self-
representation by Foreman was no stronger. He withdrew his request for
self-representation, in any event, and never renewed it. Ross made his request in
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the middle of trial, so the district court did not err in denying this untimely request.
See United States v. Carpenter, 680 F.3d 1101, 1102 (9th Cir. 2012) (per curiam).
2. The district court also did not abuse its discretion in denying a motion to
disqualify itself under 28 U.S.C. § 455(a) based on statements the district judge
made while addressing Ross’s concern that his attorney was not providing effective
assistance. The judge expressed familiarity with the types of charges filed and the
evidence presented to address Ross’s concerns about his attorney’s qualifications
and conduct, but he did not “display a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555
(1994).
3. The court permissibly denied a challenge under Batson v. Kentucky, 476
U.S. 79 (1986), after the government used a peremptory challenge on Juror No. 14,
the only African American who remained eligible for jury selection. The
government explained it was concerned about the potential juror’s employment
status, two children requiring childcare, residence in a neighborhood where drug
dealing was controlled by defendants’ gang, prior experience witnessing a crime
where the victim did not press charges, and nervousness. The court’s conclusion
that there was no purposeful discrimination was not clearly erroneous. See Tolbert
v. Page, 182 F.3d 677, 680 n.5 (9th Cir. 1999) (en banc). Although defendants
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suggest the government’s failure to strike other potential jurors with similar
characteristics indicates purposeful discrimination, no other juror had the same
disqualifying features. See United States v. Alvarez-Ulloa, 784 F.3d 558, 567 (9th
Cir. 2015). Moreover, the government’s substitution offer, while inartful, did not
refute its race-neutral reasons for challenging Juror No. 14 in this context. Id.
4. The district court also permissibly denied a motion to suppress recordings
of Hollins, Foreman, and a third alleged gang member during pretrial detention.
Defendants argue this court should follow United States v. Cohen, 796 F.2d 20,
23-24 (2d Cir. 1986), in which the Second Circuit held that a pretrial detainee
retained an expectation of privacy to challenge the warrantless physical search of
his cell intended solely to bolster the prosecution’s case. The Supreme Court has
held that a convicted criminal does not have a Fourth Amendment expectation of
privacy while incarcerated. See Hudson v. Palmer, 468 U.S. 517, 530 (1984). The
California Supreme Court has extended that conclusion to pretrial detainees,
rejecting the approach taken in Cohen. People v. Davis, 115 P.3d 417, 428-29 (Cal.
2005). We do not have to resolve that difference because this case is unlike Cohen.
There was no physical search here, and there was evidence the search was not
intended solely to bolster the prosecution’s case. The court did not abuse its
discretion in finding that these defendants had no reasonable expectation of privacy
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in their jail cell conversation and that law enforcement recorded their conversation
based on real concerns about witness safety. See United States v. Mayer, 560 F.3d
948, 956 (9th Cir. 2009).
5. Although the state must refrain from improper litigation methods
calculated to produce a wrongful conviction, it is also “obliged to ‘prosecute with
earnestness and vigor.’” Cone v. Bell, 556 U.S. 449, 469 (2009) (quoting Berger v.
United States, 295 U.S. 78, 88 (1935)). Defendants identify a few instances when
the court sustained defense objections to government questions and the
government made negative statements about defendants and their counsel, but they
have not established the district court abused its discretion in concluding
misconduct did not occur. United States v. Nadler, 698 F.2d 995, 1001 (9th Cir.
1983). As the government concedes, its comment in rebuttal closing was improper,
but it was harmless in light of its brevity and the district court’s prompt curative
instruction to the jury. See United States v. Barragan, 871 F.3d 689, 707-10 (9th
Cir. 2017).
6. The court did not violate the Sixth Amendment or Apprendi v. New
Jersey, 530 U.S. 466 (2000), in imposing life sentences based on a special verdict
form requiring the jury to unanimously agree that the government had proven
beyond a reasonable doubt that each defendant agreed that a co-conspirator would
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commit at least one of four enumerated offenses with maximum life penalties. By
statute, a RICO conspiracy conviction can lead to a maximum sentence of life
imprisonment “if the violation is based on a racketeering activity for which the
maximum penalty includes life imprisonment.” 18 U.S.C. § 1963(a). Because of
the special verdict form,1 this case does not raise the same concerns as United
States v. Nguyen, 255 F.3d 1335, 1343-44 (11th Cir. 2001).
7. Cumulative error does not mandate reversal because defendants have not
established that “the combined effect of multiple trial court errors violates due
process [because] it renders the resulting criminal trial fundamentally unfair.”
Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).
AFFIRMED.
1
The government filed an unopposed motion for judicial notice of the same
special verdict form used by the district court in another case. Although we do not
rely on that form in deciding this case, we agree that we may take judicial notice of
inferior court records from another case and therefore grant the motion. See United
States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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