United States v. Mark Gill , 650 F. App'x 420 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30127
Plaintiff-Appellee, D.C. No. 3:14-cr-00275-JO-1
v.
MEMORANDUM*
MARK DOUGLAS GILL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued and Submitted May 6, 2016
Portland, Oregon
Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.
Law enforcement officials obtained a warrant to search Mark Gill’s home for
evidence of witness tampering and conspiracy to commit witness tampering in
connection with the prosecution of Dave Corbit, a leader of the Krude Rude Brood
(“Brood”) gang. The search revealed methamphetamine, which Gill confessed to
dealing. Gill appeals his convictions for conspiracy to distribute
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & 846, and possession
with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
& 841(b)(1)(C). We affirm the possession conviction, but reverse the conspiracy
conviction.
1. Gill argues that the district court erred in denying his request for a
Franks hearing. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978). But, as
the district court recognized, it “in essence” granted his Franks request by allowing
him to present under an offer of proof rubric all evidence he wished to present about
the accuracy of the search warrant affidavit. In any case, Gill did not establish that
any alleged misstatements in the affidavit were material to the existence of probable
cause that he was involved in a witness tampering scheme.
2. The affidavit alleged that (1) Corbit appeared to be looking for extra-
legal ways to avoid prosecution; (2) Corbit’s gang associates, including the widely-
feared Bobby Hammond, were looking for a witness because of her anticipated
testimony against Corbit; (3) Hammond sought to cover his tracks; (4) the man
Hammond hired, Deuce Romero, was going to stop looking for the witness out of
respect for a former boyfriend of the witness’s friend; and (5) Gill, a Brood associate,
was part of the scheme. The district court did not err in finding that the affidavit
established probable cause and denying the motion to suppress.
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3. Gill argues that the district court erred by refusing to compel the
government to grant use immunity to Deuce during the Franks hearing and to Gill’s
alleged co-conspirator, Reanna Erickson, at trial. There is no evidence, however,
that the prosecutor caused Deuce to invoke the Fifth Amendment. See United
States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008). The prosecutor may have
indirectly caused Erickson to invoke her Fifth Amendment rights by ensuring that
she was provided with counsel. But, this was a responsible thing to do, and there is
no evidence that the prosecutor threatened Erickson or otherwise acted “with the
purpose of distorting the fact-finding process.” Id.
4. The district court admitted text messages from Erickson to a person
identified in her phone as “Gill Mark” as statements by a party and a co-conspirator.
Gill argues that the label “Gill Mark” was inadmissible hearsay. But, a label
bearing a name is not an assertion, and therefore not hearsay. United States v. Snow,
517 F.2d 441, 442–44 (9th Cir. 1975). Moreover, Gill admitted that the phone
number associated with the text messages was his.
5. Gill also argues that the district court erred in admitting texts between
Erickson and DJ Probasco. Gill waived this argument by failing to adequately raise
it in his opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996). In any event, any error was harmless: the conversation established only that
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Erickson had sought to buy methamphetamine from Probasco, an unimportant fact
given that Gill admitted that Probasco was one of his sources.
6. Gill argues that the district court committed plain error by failing to
give a specific unanimity instruction. Such an instruction might have been useful,
because the government’s summary chart could have led the jury to believe there
were multiple conspiracies. See United States v. Lapier, 796 F.3d 1090, 1096 (9th
Cir. 2015). But, any error was not plain: the vast majority of the conspiracy
evidence was about Gill and Erickson, and in closing argument, the prosecutor
repeatedly referred only to Erickson as Gill’s co-conspirator.
7. The evidence does not support Gill’s conviction for conspiracy to
distribute methamphetamine. Viewed in the light most favorable to the
government, the evidence shows only that Gill and Erickson, who sold separately,
bought dealer-sized quantities of methamphetamine together once and discussed
doing so another time; and that Erickson lived in Gill’s house for a few days. There
was no evidence of an agreement to distribute jointly or in parallel. In contrast to
the cases cited by the government, there was no evidence of “a prolonged and
actively pursued course” of joint purchases or “a shared stake in the [other] buyer’s
illegal venture.” United States v. Moe, 781 F.3d 1120, 1125 (9th Cir. 2015)
(quotation marks omitted); see also United States v. Foy, 641 F.3d 455, 466 (10th
Cir. 2011) (the conspirators “regularly pooled their money together to purchase
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multiple-kilogram quantities of cocaine, treated their debts to their drug supplier as
common debts, coordinated the distribution of large amounts of cocaine, and
discussed taking a large amount of cocaine from their supplier without paying for
it”); United States v. Thornton, 609 F.3d 373, 380 (6th Cir. 2010) (the joint purchases
occurred “every day for at least two months”); United States v. Harris, 567 F.3d 846,
851 (7th Cir. 2009) (the joint purchases “happened at least biweekly, if not more, for
several years”).
8. Because we reverse Gill’s conspiracy conviction, we vacate the
sentence and remand for resentencing on an open record so that the district court
may resentence Gill without relying on the conspiracy count.1
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED.
1
Because we reverse the conspiracy count conviction for insufficiency of the
evidence, Gill may not be retried on that count. United States v. DeJarnette, 741
F.3d 971, 985 (9th Cir. 2013) (“Because the evidence was insufficient, the Double
Jeopardy Clause forbids a second trial.” (citation and internal quotation marks
omitted)).
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FILED
United States v. Gill, No. 15-30127
MAY 19 2016
TALLMAN, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in all aspects of the majority’s disposition except for the reversal of
the Count I conviction for conspiracy to distribute methamphetamine. See
Majority Disposition at 4-5. As to the court’s conclusion that the evidence was
insufficient to support the guilty verdict on that charge, I respectfully dissent.
Unlike a jury, we are tasked with viewing the evidence in the light most favorable
to support its determination. United States v. Mincoff, 574 F.3d 1186, 1191-92
(9th Cir. 2009). We all agree the jury properly found Gill guilty of possession with
intent to distribute methamphetamine, as charged in Count II. The question the
jury answered affirmatively in Count I was whether Gill conspired with Erickson
to acquire the drug for distribution when they pooled their money to get a better
price on larger quantities from the supplier of the methamphetamine. Applying the
teachings of Jackson v. Virginia, 443 U.S. 307, 319 (1979), a rational juror could
certainly find on this record that the prosecution established the essential elements
of conspiracy to distribute methamphetamine beyond a reasonable doubt.
The majority overlooks the fact that conspiracy to distribute drugs requires
only an agreement to accomplish a criminal objective. See United States v. Suarez,
682 F.3d 1215, 1219 (9th Cir. 2012). No overt act is required. See id. Here, the
jury had ample evidence of an agreement between Gill and Erickson to acquire
drugs so they could each thereafter distribute methamphetamine. The jury saw the
real time text messages between Gill and Erickson, in which they discussed
pooling their money together to buy methamphetamine from a Mexican supplier.
The jury heard from government witnesses that the amount of methamphetamine
Gill and Erickson could obtain with their pooled resources was a large quantity
meant for distribution. We should not create an unnecessary split with our sister
circuits who have ruled that pooling resources to buy distribution levels of drugs
may support a conviction for conspiracy to distribute. See, e.g., United States v.
Foy, 641 F.3d 455, 465-66 (10th Cir. 2011); United States v. Thornton, 609 F.3d
373, 380 (6th Cir. 2010); United States v. Harris, 567 F.3d 846, 851 (7th Cir.
2009). Common sense tells us the same. The text messages show that Gill and
Erickson believed that by pooling their resources, they could get a better wholesale
price before reselling the methamphetamine to their customers. The text messages
also established that Gill and Erickson met the same day so Erickson could give
her share of the buy money to Gill.
But that’s not all the jury heard about Gill and Erickson. The jury also had
evidence that when asked about a later text exchange, Erickson said that “she and
Mr. Gill were discussing putting together a drug deal . . . [though she maintained]
that it never came together.” The jury also learned that Gill admitted to the officers
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executing the search warrant that he was a “drug dealer” and that he had given
Erickson an amount of methamphetamine an officer later testified was a “dealer
amount of methamphetamine, not a user amount.” This “dealer amount” was then
found at Gill’s house in Erickson’s purse. But that’s still not all the jury knew
about Gill’s and Erickson’s activities. Also discovered at Gill’s house were
additional distribution-level quantities of methamphetamine, digital scales, replica
firearms, a police scanner, several cell phones, a Tupperware container with
methamphetamine residue, and $600 cash–$156 of which was in Erickson’s purse.
Also present during the search was Erickson herself, who the officers learned had
been staying at Gill’s house. In short, both had a motive to pool their resources,
they did so, and then jointly were found to later be in possession of the drugs and
distribution paraphernalia, which are the tools of their illicit trade. What more did
the jury need to support the sensible conclusion that they conspired to distribute
methamphetamine?
The majority relies on United States v. Moe, 781 F.3d 1120 (9th Cir. 2015),
to imply that a conspiracy to distribute requires evidence of “a prolonged and
actively pursued course” or “a shared stake in the [other] buyer’s illegal venture.”
Majority Disposition at 4. But Moe actually emphasizes that “[d]istinguishing
between a conspiracy and a buyer-seller relationship requires a fact-intensive and
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context-dependent inquiry” that does not turn on specific factors or bright-line
rules. 781 F.3d at 1125. Taking the evidence in the light most favorable to support
its collective judgment, a rational jury could find that the evidence presented
demonstrated more than a buyer-seller relationship. See id. at 1125-26
(recognizing that factors such as “mutual trust” and “whether the transactions were
standardized” were also relevant to distinguish conspirators from buyers-sellers).
We should affirm Gill’s conviction for conspiracy to distribute
methamphetamine.
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