United States v. Jarvis Thomas ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 7 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10426
Plaintiff-Appellee, D.C. No.
1:17-cr-00296-DAD-BAM-2
v.
JARVIS THOMAS, AKA Jar, AKA MEMORANDUM*
JarMice,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted August 31, 2021**
San Francisco, California
Before: RAWLINSON and BYBEE, Circuit Judges, and CARDONE,*** District
Judge.
Jarvis Thomas appeals his criminal convictions for conspiracy to distribute
*
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 Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
and possess with the intent to distribute, and possession with the intent to
distribute, at least 500 grams of a substance with a detectable amount of
methamphetamine or fifty or more grams of actual methamphetamine. He also
appeals his 320-month sentence. We have jurisdiction under 28 U.S.C. § 1291.
We affirm.
1. The district court did not clearly err by denying Thomas’s putative motion
for a mistrial, nor was its curative instruction deficient after a government
witness’s testimony exceeded the scope of a pre-trial motion in limine. Thomas
did not object to the curative instruction, so we review for plain error and will only
reverse if (1) the appellant has not waived (2) a clear and obvious error that (3)
affected his substantial rights and (4) calls into question the fairness or integrity of
judicial proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009) (citations
omitted); United States v. Rodriguez, 971 F.3d 1005, 1012 (9th Cir. 2020).
We decide whether a curative instruction mitigates inappropriate testimony
by “weigh[ing] the forcefulness of the instruction and the conviction with which it
was given against the degree of prejudice generated by the [challenged] evidence.”
United States v. Johnson, 618 F.2d 60, 62 (9th Cir. 1980). When assessing
prejudice, “the probative force of the inadmissible evidence must be compared
with that of the admissible evidence which supports the verdict.” Id.Here, the curative instruction clearly and forcefully admonished the jury not
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to consider the erroneous witness statement, which was brief, vague, and did not
specifically refer to Thomas. See United States v. Voris, 964 F.3d 864, 875 (9th
Cir. 2020). Thomas thus suffered minimal prejudice from the witness’s errant
testimony, see Johnson, 618 F.2d at 62, and a mistrial was unwarranted, see United
States v. Lemus, 847 F.3d 1016, 1024–25 (9th Cir. 2016).
2. The district court did not plainly err by allowing a government case agent to
interpret intercepted phone calls during trial. United States v. Houser, 804 F.2d
565, 570 (9th Cir. 1986) (applying plain error review to otherwise-inadmissible
witness testimony). The case agent here merely interpreted “ambiguous
conversations based upon [his] direct knowledge of the investigation.” United
States v. Gadson, 763 F.3d 1189, 1206 (9th Cir. 2014) (quotation marks and
citation omitted). Nor did the district court permit the case agent to improperly
opine on ultimate issues of fact. A “lay witness may testify as to an ultimate issue
of fact [if their] testimony is otherwise admissible.” United States v. Crawford,
239 F.3d 1086, 1090 (9th Cir. 2001); Fed. R. Evid. 704. The case agent’s
testimony met this standard, United States v. Perez, 962 F.3d 420, 435 (9th Cir.
2020), and we decline to find plain error.
3. The district court did not plainly err by allowing a DEA agent expert witness
to give lay witness testimony interpreting ambiguous phone calls and exploring
hypotheticals paralleling the facts of Thomas’s case. Under Federal Rule of
3
Evidence 701, expert witnesses may give lay opinion testimony on ambiguous
statements. See United States v. Vera, 770 F.3d 1232, 1242, 1246 (9th Cir. 2014)
(citation omitted). The statements interpreted by this DEA agent were ambiguous
and merely explained why drug traffickers did business in certain ways. Expert
witnesses may also field hypotheticals based on their own interpretation of the
facts in the record. United States v. Celestine, 510 F.2d 457, 460 (9th Cir. 1975).
Thus, no plain error exists here.
4. The district court instructed the jury to “determine whether it was reasonably
foreseeable to defendant, or within the scope of the defendant’s particular
agreement with the conspirators, that the conspiracy involved certain amounts of
methamphetamine.” This disjunctive instruction was erroneous because a jury
need not determine that the type and quantity of drugs were within the scope of the
co-conspirators’ agreement. United States v. Collazo, 984 F.3d 1308, 1315 (9th
Cir. 2021) (en banc). However, the error was harmless in light of the
“overwhelming evidence” of Thomas’s “agreement involving the requisite drug
type and quantity.” Id. at 1336. The error was also harmless because the
instruction imposed an additional burden on the government, benefitting Thomas
by making a conviction more difficult. Id. at 1329.
5. Thomas requests reversal for cumulative error. Although he asserted several
errors, as previously discussed, the district court made only one actual error. “One
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error is not cumulative error.”1 United States v. Sager, 227 F.3d 1138, 1149 (9th
Cir. 2000).
6. The district court did not plainly err when it imposed a three-level
sentencing enhancement. Although we may consult up to six factors to determine
whether clear and convincing evidence is required at sentencing, United States v.
Valle, 940 F.3d 473, 479 (9th Cir. 2019) (citation omitted), Thomas limits his
argument to the thirty-seven percent increase to his sentence that the sentencing
enhancement created. This falls short of the 100 percent increase required by
Valle. Id. Further, Thomas was not otherwise facing a relatively short sentence.
Id. His un-enhanced offense level was thirty-six with a Category IV criminal
history, which would yield a Guidelines range of 262–297 months, or
approximately twenty-two to twenty-five years. Reversal is thus unwarranted.
AFFIRMED.
1
Contrary to Thomas’s argument, the witness’s brief and vague reference to a gang
did not result in a due process violation in view of the district court’s curative
instruction. See United States v. Lemus, 849 F.3d 1016, 1025 (9th Cir. 2016).
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