United States v. Aaron Sandusky , 564 F. App'x 282 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50025
Plaintiff - Appellee, D.C. No. 2:12-cr-00548-PA-1
v.
MEMORANDUM*
AARON SANDUSKY, AKA Aaron
Tucker,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted March 3, 2014**
Pasadena, California
Before: BYBEE, BEA, and IKUTA, Circuit Judges.
Defendant Aaron Sandusky appeals his convictions under 21 U.S.C. §§ 846
and 841(a)(1), as well as his sentence to 120 months’ imprisonment. We have
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
*
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).
It is unclear whether Sandusky asserts a claim of vindictive or selective
prosecution. Regardless of the theory he advances, our review is de novo. United
States v. Kent, 649 F.3d 906, 912 (9th Cir. 2011); United States v. Sutcliffe, 505
F.3d 944, 954 (9th Cir. 2007). Assuming that Sandusky intended to assert
vindictive prosecution, his claim fails because he has not adduced evidence
indicating even the appearance of vindictiveness. United States v. Montoya, 45
F.3d 1286, 1299 (9th Cir. 1995). What is more, Sandusky has not alleged any
improper motive attributable to the federal government. United States v. Culliton,
328 F.3d 1074, 1081 (9th Cir. 2003) (“[T]here is nothing inappropriate or
vindictive about a state law enforcement agency referring potential violations of
federal law to federal authorities.”). Assuming that Sandusky intended to assert
selective prosecution, his claim fails because he has not identified other similarly
situated individuals who have not been prosecuted. Sutcliffe, 505 F.3d at 954.
Moreover, as just noted, Sandusky has not alleged an impermissible motive. Id.;
Culliton, 328 F.3d at 1081. Therefore, the district court properly denied
Sandusky’s pretrial motion to dismiss the indictment.
Sandusky argues that the government lacked power under the Commerce
Clause to prosecute him and that the Tenth Amendment forbade such prosecution.
“We review de novo the district court’s determination of the constitutionality of a
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federal statute.” United States v. Jones, 231 F.3d 508, 513 (9th Cir. 2000). Here,
binding precedent squarely forecloses Sandusky’s arguments. Gonzales v. Raich,
545 U.S. 1, 22, 29-33 (2005); Raich v. Gonzales, 500 F.3d 850, 867 (9th Cir.
2007).
Sandusky claims that the district court deprived him of a fair trial by
excluding all evidence of entrapment by estoppel. “A district court’s decision to
exclude evidence of a particular defense is reviewed de novo. A district court may
preclude a defense if the defendant fails to make a prima facie showing that he is
eligible for the defense.” United States v. Schafer, 625 F.3d 629, 637 (9th Cir.
2010) (citation omitted). The district court properly excluded an entrapment by
estoppel defense in this case. No authorized government official ever affirmatively
told Sandusky that his marijuana operations were permissible. Id. In addition, the
fact that Sandusky incorporated G3 Holistic on October 6, 2009, conclusively
establishes that he did not rely on any government action that occurred thereafter.
Id. Finally, the record demonstrates that Sandusky was never actually misled.
United States v. Tallmadge, 829 F.2d 767, 775 n.1 (9th Cir. 1987). For example, in
a July 2, 2010, interview, Sandusky acknowledged that marijuana “[was] still an
illegal drug” and that he could go to jail. Accordingly, the district court properly
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granted the government’s motion in limine with regard to Sandusky’s asserted
entrapment by estoppel defense.
Sandusky claims that his 120-month mandatory minimum sentence was not
supported by sufficient evidence. “When properly preserved, we review
sufficiency-of-evidence challenges by asking whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. King, 735 F.3d 1098, 1106 (9th Cir. 2013). Because Sandusky failed to
preserve his sufficiency-of-evidence challenge, however, we apply plain-error
review. Id. “Under plain-error review, reversal is permitted only when there is (1)
error that is (2) plain, (3) affects substantial rights, and (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted). At trial, Sandusky’s co-conspirators testified
that they were involved in growing and distributing more than 1,000 plants for
Sandusky. Government agents also testified that they collectively seized more than
1,000 plants during the November 2011 search of the Ontario warehouse. Viewing
this evidence in the light most favorable to the prosecution, a rational jury easily
could have found that the government proved the existence of 1,000 plants under
counts one and two of the indictment. Consequently, there was no plain error.
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Sandusky contends that the district court improperly excused “jurors who
never exactly said that they would definitely vote against the Government no
matter what.” A district court’s decision to excuse a juror for cause is reviewed for
abuse of discretion. United States v. Lindsey, 634 F.3d 541, 553 (9th Cir. 2011).
The district court excused only those jurors who said either that they could not be
impartial or that they were uncertain whether they could be impartial. Where these
prospective jurors represented to the court that they could not be impartial, the
district court necessarily acted within its broad discretion to excuse a juror for
cause. Even where these prospective jurors were ambiguous about whether they
could be impartial, the district court acted within its discretion to excuse a juror for
cause. Uttecht v. Brown, 551 U.S. 1, 7 (2007). Therefore, because none of the
excused jurors unambiguously stated that he could be impartial, none of the district
court’s decisions in voir dire can be deemed an abuse of discretion.
AFFIRMED.
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