United States v. Clifford Henry, Jr. , 695 F. App'x 213 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-50432, 14-50435,
15-50276
Plaintiff-Appellee,
D.C. No. 2:14-cr-00055-GW
v.
CLIFFORD EUGENE HENRY, Jr., MEMORANDUM*
STEVEN ROBERT AGUIRRE, and
JONATHAN CARL JARRELL,
Defendants-Appellants.
Appeals from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted August 8, 2017**
Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and FABER,*** District
Judge.
In these consolidated appeals, Clifford Henry, Jr., Steven Aguirre, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Jonathan Jarrell appeal from their jury convictions arising from their unauthorized
campfire that accidentally started a wildfire in the Angeles National Forest. All
three defendants were convicted under 18 U.S.C. § 1855 and 36 C.F.R. § 261.5(c).
Henry and Aguirre were also convicted under 36 C.F.R. § 261.5(e). As the parties
are familiar with the facts, we do not recount them here. We affirm.
Henry and Aguirre argue that they were denied their Sixth Amendment right
to counsel because their defense attorneys “entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing” by essentially conceding their
guilt at trial and arguing for jury nullification. United States v. Cronic, 466 U.S.
648, 659 (1984). However, there was no Cronic error because their defense
attorneys made the reasonable tactical decisions to concede uncontestable facts and
counts and focus on arguing that Henry and Aguirre were not guilty of the most
serious count. See United States v. Thomas, 417 F.3d 1053, 1057-59 (9th Cir.
2005) (holding that it was not Cronic error where defense counsel conceded some
incontestable counts to “enhance his credibility on counts where the evidence was
somewhat less clear and the penalties significantly greater”).
Contrary to Jarrell’s contention, viewing the evidence in the light most
favorable to the prosecution, there was sufficient evidence to convict him under
both 18 U.S.C. § 1855 and 36 C.F.R. § 261.5(c). See Jackson v. Virginia, 443 U.S.
307, 319 (1979). The jury reasonably could have found that Jarrell aided and
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abetted his co-defendants in “set[ting] on fire any timber, underbrush, or grass or
other inflammable material.” 18 U.S.C. § 1855. Likewise, the jury reasonably
could have found that Jarrell “[c]aus[ed]” the wildfire. 36 C.F.R. § 261.5(c).
The district court did not err by denying Jarrell’s motion to admit statements
made by the prosecutor during his co-defendants’ separate trial because the
statements were irrelevant to whether Jarrell violated § 1855. See Fed. R. Evid.
402 (“Irrelevant evidence is not admissible.”).
The district court also did not err by declining to provide two jury
instructions requested by Jarrell. The term “set[]” in § 1855 is a common term that
the jury could readily understand. See United States v. Hicks, 217 F.3d 1038, 1045
(9th Cir. 2000) (stating that “the district court need not define common terms that
are readily understandable by the jury”). Further instruction regarding when a
crime is “complete” was unnecessary because the court’s given instructions were
sufficient to allow Jarrell to argue that his co-defendants had completed the crime
before Jarrell acted. See id. at 1046 (“[T]he instructions ultimately given by the
district court left ample room for the defense to proffer its theory of the case.”).
We reject Jarrell’s contention that his § 1855 conviction should be reversed
based on cumulative error because there are no individual errors underlying his
conviction. See United States v. Franklin, 321 F.3d 1231, 1241 n.4 (9th Cir.
2003).
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Finally, we affirm the district court’s restitution order as to all three
defendants. Defendants’ main argument is that the district court erred by including
fire suppression costs in the restitution order under the Mandatory Victim
Restitution Act (“MVRA”). However, the costs incurred to suppress the wildfire
were “directly and proximately” caused by defendants’ offense conduct, and are
authorized under the MVRA. 18 U.S.C. § 3663A(a)(2), (b)(1); see also United
States v. De La Fuente, 353 F.3d 766, 771-74 (9th Cir. 2003) (holding that costs
incurred by county fire department’s hazardous materials division when
responding to the defendant’s mailing of letters containing alleged anthrax were
recoverable under the MVRA). We reject defendants’ other challenges to the
restitution order based on Apprendi v. New Jersey, 530 U.S. 466 (2000), the Eighth
Amendment, and insufficient evidence that Jarrell “caused” the wildfire.
AFFIRMED.
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