United States v. Barbara Ross ( 2021 )

FILED
NOT FOR PUBLICATION
NOV 29 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50223
Plaintiff-Appellee, D.C. No. 3:19-cr-03350-W-1
v.
MEMORANDUM*
BARBARA L. ROSS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted November 18, 2021**
Pasadena, California
Before: LINN,*** BYBEE, and BENNETT, Circuit Judges.
Appellant Barbara Ross appeals her jury conviction and sentence for assault
on a federal officer, in violation of 18 U.S.C. § 111(a)(1). She argues that (1) the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
district court erred by not instructing the jury that self defense to excessive force is
an affirmative defense, (2) remand is appropriate for an evidentiary hearing on
whether a government agent’s contact with the jury was prejudicial, (3) her trial
counsel was ineffective for failing to request a self-defense-to-excessive-force
instruction, and (4) her sentence of 18 months imprisonment and three years
supervised release is substantively unreasonable. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm the conviction and sentence.
1. We review the district court’s answer to Juror Question 1 for plain
error because defense counsel did not sufficiently object to the instruction to
preserve the issue on appeal. Fed. R. Crim. P. 30(d), 52(b); see United States v.
Anderson, 741 F.3d 938, 945 (9th Cir. 2013) (“An objection to an instruction on a
different ground is not sufficient to preserve de novo review.”). The district
court’s response was not plain error. “Plain error arises only in exceptional
circumstances where we find that the trial court’s decision affected substantive
rights and where it is ‘highly probable that the error materially affected the
verdict.’” United States v. Span, 970 F.2d 573, 577 (9th Cir. 1992) (quoting
United States v. Armstrong, 909 F.2d 1238, 1244 (9th Cir. 1990)). The district
court’s failure to instruct the jury on self-defense to excessive force is not plain
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error where, as here, the defendant did not request an excessive force instruction or
rely on that theory of defense at trial. See Span, 970 F.2d at 578.
2. Similarly, we review for plain error Ross’s claim that an evidentiary
hearing is required to determine whether a government officer’s contact with a
juror during deliberations was prejudicial. See Puckett v. United States, 556 U.S.
129, 134–35 (2009). Defense counsel did not object to the contact or request an
evidentiary hearing at trial. Instead, counsel waited six months, until the
sentencing hearing, to raise the potential issue. We have set out a two-step process
for evaluating allegedly prejudicial jury contacts. First, “[w]hen a defendant
alleges improper contact between a juror and an outside party, the court asks . . .
whether the contact was ‘possibly prejudicial.’” Godoy v. Spearman, 861 F.3d
956, 962 (9th Cir. 2017) (en banc) (quoting Mattox v. United States, 246 U.S. 140,
150 (1892)). Second, if the contact is possibly prejudicial, the court should
presume prejudice and shift the burden to the government to establish that “the
contact was actually ‘harmless.’” Id. (quoting Remmer v. United States, 347 U.S.
227, 229 (1954)).
The district court heard Officer Perez’s recollection of the contact with
jurors. Perez explained that a juror asked him: “Do you guys get subpoenas?”
Perez said that he responded: “Yes, we get subpoenas.” And, that was “the extent
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of the conversation that [Perez] remembered.” Nothing in Perez’s response
indicated that he spoke to a juror about “the matter pending before the jury.”
Remmer, 347 U.S. at 229. The district court did not commit plain error in finding
no “credible risk” of prejudice and inquiring no further into the contact. See
Godoy, 861 F.3d at 967.
3. We decline to hear Ross’s ineffective assistance of counsel claim on
direct appeal because the record is not sufficiently developed and her legal
representation was not so deficient that she was obviously denied her Sixth
Amendment right to counsel. See United States v. Rivera-Sanchez, 222 F.3d 1057,
1060 (9th Cir. 2000).
4. We review sentencing decisions for an abuse of discretion, whether or
not the sentence is inside the Sentencing Guidelines. United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc). “In determining substantive
reasonableness, we are to consider the totality of the circumstances,” and we “may
not reverse just because we think a different sentence is appropriate.” Id. at 993.
The parties agreed that the Guideline imprisonment range was 18 to 24 months and
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the Guideline supervised release range was 1 to 3 years.1 While the Guidelines are
advisory, “in the overwhelming majority of cases, a Guidelines sentence will fall
comfortably within the broad range of sentences that would be reasonable in the
particular circumstances.” Id. at 994. This does not represent one of the “rare”
cases, where the court should vacate a sentence on the grounds that it is
substantively unreasonable. United States v. Ressam, 679 F.3d 1069, 1087 (9th
Cir. 2012). The district court considered the Guideline range, the 18 U.S.C.
§ 3553(a) factors, and the parties’ arguments in concluding that 18 months
imprisonment with three years supervised release was sufficient but not greater
than necessary to reflect the seriousness of the offense and provide adequate
deterrence. The district court did not abuse its discretion.
AFFIRMED.
1
Ross’s appeal to her sentence is not moot because the supervised release
portion could be affected if she prevails. See United States v. Allen, 434 F.3d
1166, 1170 (9th Cir. 2006); United States v. Verdin, 243 F.3d 1174, 1178 (9th Cir.
2001).
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