United States v. Eric Marquez ( 2018 )

FILED
NOT FOR PUBLICATION
NOV 13 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50354
Plaintiff-Appellee, D.C. No.
3:16-cr-02985-LAB-1
v.
ERIC ALFONSO MARQUEZ, AKA Erik MEMORANDUM*
Alfonso Marquez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 5, 2018**
Pasadena, California
Before: RAWLINSON and HURWITZ, Circuit Judges, and BOUGH,*** District
Judge.
*
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 Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
Eric Marquez appeals his convictions for making false statements in
violation of 18 U.S.C. § 1001, challenging the district court's failure to give sua
sponte jury instructions, as well as its responses (not objected to below) to jury
questions. We have jurisdiction under 28 U.S.C. § 1292. We review for plain
error, United States v. Romm, 455 F.3d 990, 1003 (9th Cir. 2006); United States v.
Bonanno, 852 F.2d 434, 440 (9th Cir. 1988), and affirm.
1. The district court did not plainly err by failing to instruct the jury sua
sponte on a public authority or advice of counsel defense. The court's instruction
that the subject charges required a finding of willfulness adequately reached the
defense's theory that Marquez relied on a retired Customs and Border Protection
officer's advice in making the false statements. See United States v. Bush, 626
F.3d 527, 539 (9th Cir. 2010) ("[T]he failure to give a requested instruction is not
reversible error if other instructions, in their entirety, adequately cover that defense
theory.") (internal quotation marks omitted). In any event, neither defense was
available to Marquez, as there was no evidence that the retired officer had the
"actual legal authority" to condone his false answers, United States v. Blair, 210
F.3d 385 (9th Cir. 2000), or was an attorney.
2. The district court did not err in its responses to the jury's questions. First,
the court did not err by failing to inform the jury sua sponte that an arrest can
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revert to a detention under California Penal Code § 849.5. That section is not
applicable to Marquez's case, see Cal. Penal Code § 849.5 (applying to "any case in
which a person is arrested and released and no accusatory pleading is filed
charging him with an offense"), and Marquez did not contend that he was aware of,
or relied on, the statute. Second, the court's response did not give undue weight to
the relevance of the citation. Rather, the response was accurate s and did not
address whether Marquez knew that he had been arrested
AFFIRMED.
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