United States v. Chico Martines , 582 F. App'x 768 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10305
Plaintiff - Appellee, D.C. No. 1:11-cr-00952-DAE-2
v.
MEMORANDUM*
CHICO MARTINES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted June 12, 2014
Honolulu, Hawaii
Before: W. FLETCHER, IKUTA, and HURWITZ, Circuit Judges.
Defendant Chico Martines appeals his conviction and sentence for
conspiracy to manufacture marijuana or to possess marijuana with intent to
distribute. He assigns error to the district court’s instructions on his religious-use
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
defense and to the language of the indictment. He also challenges the sufficiency
of the evidence supporting his conviction. We affirm.
Because Martines did not object to the jury instruction before the district
court, we apply plain-error review. United States v. Wilkes, 662 F.3d 524, 544 (9th
Cir. 2011). “Reversal on the basis of plain error is an exceptional remedy and an
improper jury instruction rarely justifies reversal of a conviction for plain error.”
United States v. Ching Tang Lo, 447 F.3d 1212, 1228 (9th Cir. 2006). The district
court’s instruction on Martines’ religious-use defense did not constitute plain error.
Even assuming the district court erred by failing to instruct the jury that religious
use could be a defense to the charge of conspiracy to manufacture marijuana for
personal use, Martines cannot show that the error affected the outcome of the
proceedings. See Wilkes, 662 F.3d at 544. There was ample evidence to support
his conviction, and substantial reason to doubt the sincerity of his Rastafarian
beliefs. See infra.
We also review the indictment for plain error, since Martines challenges it
for the first time on appeal. United States v. Rodriguez, 360 F.3d 949, 958 (9th
Cir. 2004). Martines correctly points out that, while the indictment charged him in
the conjunctive (“conspir[acy] to manufacture . . . and to possess with intent to
distribute”), the statute under which he was charged employs the disjunctive. See
2
21 U.S.C. § 841(a)(1) (making it unlawful “to manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or dispense, a controlled
substance” (emphasis added)). While the indictment is not a model of clarity, it is
well established in this circuit that “a jury may convict on a finding of any of the
elements of a disjunctively defined offense, despite the grand jury’s choice of
conjunctive language in the indictment.” United States v. Bettencourt, 614 F.2d
214, 219 (9th Cir. 1980); see also United States v. Booth, 309 F.3d 566, 571–73
(9th Cir. 2002). We therefore decline to reverse the conviction on this basis.
Finally, sufficient evidence supports Martines’ conviction. Martines’ co-
conspirator Shane Oyama testified at trial to the existence of an oral agreement to
manufacture marijuana. The Religious Freedom Restoration Act (“RFRA”) may
supply a defense against a charge of conspiracy to manufacture marijuana for
personal use. See United States v. Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007);
United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996). But Martines’ vague
and generic testimony about the principles of his faith—together with the fact that
Martines did not tell his probation officer in 2006 that he was a Rastafarian, even
though he was held to have violated the terms of his supervised release by using
marijuana—could support a rational jury determination that Martines’ Rastafarian
beliefs were not in fact sincerely held. See Zimmerman, 514 F.3d at 853
3
(explaining that a claimant “may only invoke RFRA if his beliefs are both
sincerely held and rooted in religious belief” (internal quotation marks omitted)).
With respect to the charge of conspiracy to possess with intent to distribute, a
rational juror could have believed the statement of Officer Hanawahine, who
testified that, in his experience, possessing more than 100 marijuana plants is not
consistent with growing marijuana solely for personal use.
AFFIRMED.
4