United States v. Leroy Combs , 705 F. App'x 620 ( 2017 )

FILED
NOT FOR PUBLICATION
DEC 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10102
Plaintiff-Appellee, D.C. No.
1:13-cr-00362-AWI-BAM-3
v.
LEROY DONOVAN COMBS, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-10115
Plaintiff-Appellee, D.C. No.
1:13-cr-00362-AWI-BAM-4
v.
CHARLES WAYNE UPTERGROVE,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-10123
Plaintiff-Appellee, D.C. No.
1:13-cr-00362-AWI-BAM-5
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
LADONNA LEE MOON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted November 16, 2017
San Francisco, California
Before: W. FLETCHER and PAEZ, Circuit Judges, and WILKEN, District
Judge.**
Leroy Donovan Combs, Charles Wayne Uptergrove and Ladonna Lee Moon
appeal their convictions under 18 U.S.C. § 287. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. All defendants: The district court did not abuse its discretion in denying
the defendants’ mistrial motions based on co-defendant Gaylene Bolanos’
courtroom outburst in front of the jury. See United States v. Sarkisian, 197 F.3d
966, 981 (9th Cir. 1999). First, the outburst was not inherently prejudicial. See
Holbrook v. Flynn, 475 U.S. 560, 570 (1986). In contrast to the “truly rare” set of
circumstances in United States v. Mannie, 509 F.3d 851, 857 (7th Cir. 2007), the
**
The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
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jury in this case witnessed only a single two- to three-minute outburst from a co-
defendant, rather than a “violent courtroom brawl,” or a “campaign of
intimidation.”
Second, the district court took reasonable steps to ensure the fairness of the
proceedings and jury impartiality. See United States v. McCormac, 309 F.3d 623,
626 (9th Cir. 2002) (holding a “district court’s assessment of the jury’s ability to
remain impartial despite the explosion of defiance from [a] defendant is accorded
substantial weight because the district court is in the best position to ascertain
whether an event is prejudicial”). The court read the jury a cautionary instruction
prepared by defense counsel, and approved by all counsel, and gave the jurors an
opportunity to express whether the outburst impacted their ability to be fair to all
defendants. No juror expressed any concern over his or her ability to be fair and
impartial.
2. Uptergrove and Moon: The district court properly declined to instruct
the jury that a conviction for making a false claim under § 287 requires proof of
willfulness or intent to defraud. Under Ninth Circuit authority, an intent to defraud
is not an element of a charge under the false prong of § 287. See United States v.
Milton, 602 F.2d 231, 234 (9th Cir. 1979) (holding “the jury need not receive an
instruction on intent to defraud the government, nor is it an element of the offense,
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when the government prosecutes for the submission of false claims in violation of
18 U.S.C. § 287”). Uptergrove and Moon fail to cite binding authority requiring
the district court to instruct the jury on a good faith defense against false claim
charges under § 287.
3. Combs: The district court committed no error in sentencing Combs to 45
months’ imprisonment. We review a sentence for reasonableness, and “only a
procedurally erroneous or substantively unreasonable sentence will be set aside.”
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district
court’s reference to Combs’ “long, long history of failing to comply with the tax
laws” is well supported by the undisputed presentence report as well as by
evidence in the trial record, upon which the district court was permitted to rely in
fashioning an appropriate sentence. See United States v. Fitch, 659 F.3d 788, 790-
791 (9th Cir. 2011).
4. Uptergrove: The district court properly denied Uptergrove a two-level
reduction for acceptance of responsibility. The court’s actions were reasonable in
light of Uptergrove’s “decision to take the case to trial, where he vigorously denied
the ‘[knowingly]’ element of the offense.” United States v. Chastain, 84 F.3d 321,
324 (9th Cir. 1996). The record neither shows nor suggests that the district court
deemed Uptergrove ineligible for the reduction merely because he went to trial and
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contested his factual guilt. United States v. Cortes, 299 F.3d 1030, 1038 (9th Cir.
2002), United States v. Ochoa-Gaytan, 265 F.3d 837, 844 (9th Cir. 2001), and
United States v. McKinney, 15 F.3d 849, 853 (9th Cir. 1994), are therefore
distinguishable.
5. Uptergrove: Uptergrove’s sentence was substantively reasonable. See
United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc). The
district court carefully considered the 18 U.S.C. § 3553(a) factors and imposed a
reasonable sentence below the low end of the advisory Guidelines range.
AFFIRMED.
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