United States v. Gabriel Watters , 537 F. App'x 672 ( 2013 )

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                                                                           FILED
NOT FOR PUBLICATION                              JUN 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No. 11-10362
Plaintiff - Appellee,              D.C. No. 2:09-cr-00198-JAM-1
v.
MEMORANDUM *
GABRIEL DEAN WATTERS,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted January 17, 2013
San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
Watters appeals from his conviction for false statement and obstruction of
justice under

18 U.S.C. §§ 1001

 and 1512(c). In a separately filed published
disposition, we considered his argument that the district court gave an erroneous
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
instruction to the jury. Here we deal with the remainder of his claims. We have
jurisdiction under

28 U.S.C. § 1291

 and we affirm.
The government’s use of Starr as an informant did not violate Watters’s
Sixth Amendment rights. Watters was not convicted on the original charges, and he
therefore was not prejudiced regardless of whether Starr’s conduct implicated the
Sixth Amendment. See United States v. Danielson,

325 F.3d 1054

, 1069 (9th Cir.
2003). The information Starr gathered did not implicate the Sixth Amendment with
respect to the obstruction and false statement charges because the government had
not initiated adversarial proceedings against Watters for those crimes. See

id. at 1066

.
The district court did not err by applying the crime fraud exception to allow
Watters’s counsel to testify because the judge (1) properly placed the burden on the
government to prove the exception applied; (2) was presented with sufficient
evidence to conclude that Watters had given a forged receipt to Axup with the
intent of obstructing justice and making a false statement; and (3) had discretion in
determining whether to review further evidence in camera. See United States v.
Zolin,

491 U.S. 554

, 572 (1989); United States v. Chen,

99 F.3d 1495

, 1503 (9th
Cir. 1996).
2
Because there is no evidence that plea discussions took place between
Watters and the government, the district court did not err in rejecting Watters’s
argument the government violated Fed. R. Evid. 410 and Fed. R. Crim. P. 11.
Watters was not entitled to act of production immunity because he was not
compelled to produce the receipt. See United States v. Hubbell,

530 U.S. 27

, 35-36
(2000).
The prosecutor’s statements in opening and closing argument that he
received the receipt from Axup presented no danger of unduly influencing the jury
and therefore did not violate the advocate-witness rule because there was no
dispute that Axup had given the receipt to the prosecutor. See United States v.
Sayakhom,

186 F.3d 928

, 943 (9th Cir. 1999).
In light of the great latitude afforded district courts when deciding to read
back testimony to the jury, the district court did not abuse its discretion in denying
the jury’s request for a read back of Axup’s testimony. See United States v. Nolan,

700 F.2d 479

, 486 (9th Cir. 1983).
The evidence was sufficient to support a conviction because a rational juror
could easily have concluded that Watters forged the receipt based on Kim Wiltz’s
testimony that: (1) the receipt misspelled her business’s name; (2) her business did
not issue handwritten receipts; (3) she had never had an employee named Teddy
3
Reeves; (4) she had never seen the receipt; and (5) the cars listed thereon were
never in her inventory. See United States v. Clevenger,

733 F.2d 1356

, 1358 (9th
Cir. 1984).
The district court did not err when it declined to reduce Watters’s sentence
for acceptance of responsibility because the only evidence supporting that
reduction, a contrite letter from Watters, was written and received post-conviction.
See United States v. Martinez-Martinez,

369 F.3d 1076

, 1090 (9th Cir. 2004).
Because we hold there was no error committed by the district court, there is
no cumulative error on which to base Watters’s Due Process claim. See Jackson v.
Brown,

513 F.3d 1057