United States v. John Herrin ( 2021 )

NOT FOR PUBLICATION FILED
JUN 23 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30130
Plaintiff-Appellee, D.C. No.
6:16-cr-00015-SEH-1
v.
JOHN GREGORY ALEXANDER MEMORANDUM*
HERRIN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted June 11, 2021*
Seattle, Washington
Before: GOULD, CLIFTON, and MILLER, Circuit Judges.
John Herrin appeals from his convictions for interstate transportation of
stolen property and money laundering. We have jurisdiction. 28 U.S.C. § 1291.
We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Reviewing de novo, see United States v. Ward, 747 F.3d 1184, 1188 (9th
Cir. 2014), we conclude that there was no constructive amendment of the
indictment. See United States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002).
“[T]he proof offered at trial matched the charges made in the indictment.” United
States v. Hartz, 458 F.3d 1011, 1021 (9th Cir. 2006). Prosecutors have broad
discretion in bringing charges. United States v. Batchelder, 442 U.S. 114, 124
(1979). The Grand Jury Clause was not violated because Herrin was neither tried
for nor convicted of bank theft. That he might have been charged with that crime
is irrelevant. That there was evidence at trial that might have suggested his guilt of
that crime is also irrelevant. The evidence admitted was relevant to the charges for
which he was tried, and it did not alter those charges. See Hartz, 458 F.3d at 1021.
We review the denial of a motion in limine1 and the decision to admit
evidence at trial for an abuse of discretion. United States v. Alvirez, 831 F.3d
1115, 1120 (9th Cir. 2016). Whether evidence falls within the scope of Federal
Rule of Evidence 404(b) is reviewed de novo. United States v. Dorsey, 677 F.3d
944, 951 (9th Cir. 2012). The evidence to which Herrin objected was relevant
1
Herrin’s motion was a motion in limine and not a motion to suppress because it
sought to exclude evidence based on evidentiary grounds and not on grounds that
the evidence was illegally obtained. Compare Motion to Suppress, BLACK’S LAW
DICTIONARY (9th ed. 2009) (“A request that the court prohibit the introduction of
illegally obtained evidence at a criminal trial.”), with Motion in Limine, BLACK’S
LAW DICTIONARY (9th ed. 2009) (“A pretrial request that certain inadmissible
evidence not be referred to or offered at trial.”).
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under Rule 401 and was not “other act” evidence subject to Rule 404(b)’s
constraints. See Fed. R. Evid. 401 (evidence is relevant if “it has any tendency to
make a fact more or less probable than it would be without the evidence . . . and
the fact is of consequence in determining the action”); United States v. Loftis, 843
F.3d 1173, 1176 (9th Cir. 2016) (“Rule 404(b) applies solely to evidence of ‘other’
acts, not to evidence of the very acts charged as crimes in the indictment.”). The
evidence was directly relevant to “element[s] of the crime charged,” principally
that Herrin transported the money interstate and that Herrin had knowledge that the
money was stolen. See Loftis, 843 F.3d at 1176 (citation omitted); 18 U.S.C.
§ 2314 (elements include proving that property was transported interstate and that
defendant had knowledge that the property was stolen). The district court did not
abuse its discretion in admitting it.
Reviewing de novo, United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir.
2000), we conclude that the district court did not err in rejecting Herrin’s proposed
jury instruction and giving the instruction that it did. Because the evidence was
relevant under Rule 401, the district court was not necessarily required to give a
limiting Rule 404(b) instruction, but it was not error to give it. See United States v.
Rrapi, 175 F.3d 742, 748–50 (9th Cir. 1999). A district court must consider a
defendant’s proposed jury instruction that covers the defendant’s theory of the
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case, see United States v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011),
but a defendant is “not entitled to an instruction in a particular form,” United States
v. Keyser, 704 F.3d 631, 641–42 (9th Cir. 2012). Herrin’s proposed jury
instruction was offered to prevent the jury from considering other-act evidence in
deciding whether Herrin was guilty of the offenses charged in the indictment.
However, the instruction the district court gave, which was patterned after this
Circuit’s model 404(b) jury instructions, served that purpose as well. See Ninth
Cir. Model Crim. Jury Instrs. 2.10 & 4.3 (2018). It was proper for the district court
to give the instruction it did. See United States v. Thomas, 612 F.3d 1107, 1122
(9th Cir. 2010).
AFFIRMED.
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