United States v. Marcus Belton , 694 F. App'x 576 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10571
Plaintiff-Appellee, D.C. No.
4:14-cr-00030-JST-1
v.
MARCUS BELTON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted July 10, 2017
San Francisco, California
Before: GRABER and FRIEDLAND, Circuit Judges, and GUILFORD,** District
Judge.
Marcus Belton was found guilty of being a felon in possession of a firearm
and ammunition, see 18 U.S.C. § 922(g)(1), possessing with intent to distribute
cocaine and cocaine base within 1,000 feet of an elementary school, see 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Andrew J. Guilford, United States District Judge for the
Central District of California, sitting by designation.
§§ 841(a)(1), (b)(1)(C), 860(a), and possessing a firearm in furtherance of a drug
trafficking crime, see 18 U.S.C. § 924(c)(1)(A). Belton now appeals his
conviction, asserting four purported errors. Finding none, we affirm.
1. The district court did not abuse its discretion in denying Belton’s various
requests to continue the trial. See United States v. Flynt, 756 F.2d 1352, 1358 (9th
Cir. 1985). Belton rejected several different appointed attorneys throughout the
course of the proceedings, and engaged in dilatory conduct while representing
himself. The district court properly considered those facts. With the record in this
case, it was neither arbitrary nor unreasonable for the district court to conclude that
Belton was not “diligent in preparing his defense” and that his request for a
continuance “appear[ed] to be a delaying tactic.” See United States v. Kloehn, 620
F.3d 1122, 1127 (9th Cir. 2010). Further, standby counsel had sufficient time to
prepare before the first day of trial. Any alleged difficulty associated with that task
was not attributable to the district court’s decision to deny a continuance. See
United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989).
2. Belton challenges the district court’s ruling that, if he were to ultimately
testify at trial, he would be required to examine himself in question-and-answer
format. But, as his counsel emphasized at oral argument, Belton made no
commitment to testify in the absence of the district court’s ruling and, what is
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more, failed to even attempt to take the stand. We are aware of no authority, and
counsel has supplied none, that allows a criminal defendant to preserve such an
argument by merely thinking about the decision to testify. We therefore conclude
that Belton has forfeited the ability to challenge the district court’s ruling on this
issue. See United States v. Johnson, 903 F.2d 1219, 1222 (9th Cir. 1990). Any
other approach would venture far into the realm of speculation and conjecture. Cf.
Luce v. United States, 469 U.S. 38, 41–43 (1984).
3. The district court did not plainly err or abuse its discretion in admitting
evidence of Belton’s previous felonies. See United States v. Loftis, 843 F.3d 1173,
1176 n.1 (9th Cir. 2016); see also Puckett v. United States, 556 U.S. 129, 135
(2009). Consistent with the federal rules and our precedents concerning propensity
evidence, the district court properly admitted at least one of Belton’s convictions to
prove, among other things, “intent” and “knowledge.” See Fed. R. Evid. 404(b)(2);
United States v. Holler, 411 F.3d 1061, 1066–67 (9th Cir. 2005), overruled in part
on other grounds by United States v. Larson , 495 F.3d 1094, 1101 (9th Cir. 2007)
(en banc). That evidence was not unfairly prejudicial in the sense contemplated by
Federal Rule of Evidence 403. See United States v. Hankey, 203 F.3d 1160, 1172
(9th Cir. 2000). Belton’s other convictions were admitted, in sanitized form,
because he did not stipulate to his status as a “felon” under 18 U.S.C. § 922(g)(1).
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See United States v. Weiland, 420 F.3d 1062, 1078 (9th Cir. 2005). Any other
possible error, we conclude, was harmless because it had little or no effect on the
jury’s verdict, see id., and was mitigated by the district court’s appropriate limiting
instruction, see United States v. Lloyd, 807 F.3d 1128, 1167 (9th Cir. 2015).
4. Even under a de novo standard of review, see United States v. Kent, 649
F.3d 906, 912 (9th Cir. 2011), the district court did not err in denying Belton’s
motion to dismiss the superseding indictment for vindictiveness. Belton has not
produced any direct evidence of an improper prosecutorial motive. See United
States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007). Nor, at any rate, has he
identified circumstances sufficient to justify a presumption of prosecutorial
vindictiveness in the pre-trial context. See United States v. Goodwin, 457 U.S.
368, 381–82 (1982).
AFFIRMED.
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