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 2013-05

United States v. Frederick Parker , 525 F. App'x 578 ( 2013 )


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  •                                                                            FILED
NOT FOR PUBLICATION                               MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No. 12-10264
Plaintiff - Appellee,              D.C. No. 4:11-cr-02230-DCB-
JJM-3
v.
FREDERICK PARKER,                                MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted May 10, 2013
San Francisco, California
Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.
Defendant-Appellant Frederick Parker appeals his conviction for conspiracy
to possess a destructive device in violation of
    18 U.S.C. § 371
     and
    26 U.S.C. § 5861
    (d) and possession of a destructive device in violation of
    26 U.S.C. § 5861
    (d). He contends that the district court abused its discretion by denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
motion to sever his trial from that of his co-defendant. Parker’s co-defendant was
charged with drug-trafficking and firearm crimes in addition to being charged with
the same crimes as Parker.
We hold that the district court did not abuse its discretion because the joint
trial was not “so manifestly prejudicial as to require the trial judge to exercise his
discretion in but one way, by ordering a separate trial.” United States v. Sullivan,
    522 F.3d 967
    , 981 (9th Cir. 2008) (quoting United States v. Decoud,
    456 F.3d 996
    ,
1008 (9th Cir. 2006)). The most important factors in determining whether there
was manifest prejudice “are whether the jury can compartmentalize the evidence
against each defendant and the judge’s diligence in providing evidentiary
instructions to the jury.” Sullivan,
    522 F.3d at 
    981–82.
Parker was convicted based on evidence of his involvement in firebombing a
house thought to belong to a person involved in an attempted drug deal with some
Mexican Mafia members. Parker got involved in the firebombing because he was
living with a Mexican Mafia member. Parker was tried with a Mexican Mafia
leader named Alcantar. Two Mexican Mafia members testified for the government
against Alcantar and Parker, both of whom were involved in tossing gasoline-filled
bottles at the home.
2
Here, the jury was able to compartmentalize the evidence, as shown by “its
failure to convict all defendants on all counts.”
    Id. at 982
     (citation omitted). The
jury acquitted Parker’s co-defendant on two charges. This selective verdict shows
that the jury considered the evidence on each charge in the indictment and gave
each “individual consideration.”
    Id.
    Additionally, the prosecutors and witnesses presented the evidence in a way
that allowed the jury to compartmentalize the evidence. For example, in opening
statement and closing argument, the prosecutor said that Parker was not a member
of the Mexican Mafia or the drug conspiracy. The witnesses testified that Parker
was not a member of the Mexican Mafia and gave no evidence that Parker
participated in the drug conspiracy. These statements by the prosecutor in opening
statement and closing argument, and the statements of the witnesses in testimony,
tend to show that the jury understood the differences between the two defendants
and their alleged offenses.
The judge explicitly provided limiting instructions about the separate
charges and evidence at the start of the trial, during the presentation of evidence,
and at the end of the trial. See Sullivan,
    522 F.3d at 
    982 n.9. These instructions
“neutralized” any prejudicial effect of the evidence admitted only against his co-
defendant. United States v. Stinson,
    647 F.3d 1196
    , 1205 (9th Cir. 2011) (quoting
3
United States v. Patterson,
    819 F.2d 1495
    , 1503 (9th Cir. 1987)). Parker has not
shown that “the curative instructions were inadequate.” United States v. Johnson,
    297 F.3d 845
    , 855 (9th Cir. 2002). Instead, the instructions were fair and adequate.
Assuming without deciding that the abuse-of-discretion standard from
United States v. Hinkson,
    585 F.3d 1247
    , 1267 (9th Cir. 2009) (en banc), applies,
we hold that the district court did not abuse its discretion because the court
“identified the correct legal standard” and its application of that standard was “not
illogical, implausible, or without support in inferences that may be drawn from the
facts in the record.”
AFFIRMED.
4