United States v. Alex Pedrin, Jr. , 623 F. App'x 851 ( 2015 )

FILED
NOT FOR PUBLICATION AUG 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10623
Plaintiff - Appellee, D.C. No. 4:09-cr-02073-CKJ-
GEE-2
v.
ALEX JOSEPH PEDRIN, Jr., AKA Alex MEMORANDUM*
Pedrin, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted March 13, 2015
San Francisco, California
Before: NOONAN, W. FLETCHER, and CHRISTEN, Circuit Judges.
Alex Pedrin, Jr., appeals his conviction for conspiracy to possess with intent
to distribute 40 to 50 kilograms of cocaine, and the 210-month sentence imposed
by the district court. We have jurisdiction under 28 U.S.C. § 1291. He challenges
his conviction and sentence on eleven grounds. We resolve one issue, Pedrin’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
contention that his conviction resulted from “outrageous government conduct,” in a
concurrently filed opinion, and the remaining ten here. We affirm.
1. Pedrin first argues that the district court abused its discretion in denying
his request that the jury be instructed on withdrawal from a conspiracy. We
disagree. Even if a withdrawal instruction were available to a defendant convicted
under 21 U.S.C. § 846, which we doubt, see United States v. Shabani, 513 U.S. 10,
17 (1994), the district court did not abuse its discretion in concluding that there
was no evidence that would support such an instruction in Pedrin’s case. The
evidence clearly demonstrates that Pedrin committed an “overt act” in furtherance
of the conspiracy: he obtained supplies and recruited co-conspirators. No rational
jury could have concluded otherwise.
2. Pedrin next argues that the district court abused its discretion in admitting
prior “bad act” evidence under Federal Rule of Evidence 404 — specifically, the
testimony of co-defendant Terry Bombard, who testified that Pedrin had previously
robbed drug stash houses. We disagree. First, Bombard’s testimony helped prove
a material element of 21 U.S.C. § 846, Pedrin’s “intent to commit the underlying
offense.” United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001).
Second, the testimony was sufficiently reliable. See United States v. Johnson, 132
F.3d 1279, 1283 (9th Cir. 1997) (“This reliability threshold is not a high one, and
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the testimony of a single witness can be sufficient.”). Finally, the danger of unfair
prejudice, though real, did not substantially outweigh the probative value of the
testimony. See United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir. 2014).
3. Pedrin next argues that the district court abused its discretion in admitting
the opinion testimony of Agent Richard Zayas, the ATF agent who orchestrated the
operation. Assuming without deciding that Agent Zayas’s testimony should not
have been admitted, we hold it was “more probably harmless than not.” United
States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007). Unlike in Freeman, and in
other cases in which we have expressed concern about the “dangers inherent in
permitting investigating police officers . . . to testify as both percipient and expert
witnesses,” United States v. Anchrum, 590 F.3d 795, 803 (9th Cir. 2009), Zayas’s
opinion testimony in this case was brief and isolated. Any risk of prejudice,
moreover, was mitigated by the district court’s curative instruction.
4. Pedrin next argues that the government violated his Fifth and Sixth
Amendment rights by deporting co-defendant Omar Perez, who now claims he
would have testified on Pedrin’s behalf, before his trial. Assuming that this
argument is properly before us, we reject it on the merits. Although the
government may not deport a noncitizen who it knows can provide exculpatory
evidence for a criminal defendant, to make out a constitutional violation, the
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defendant must show that the government acted in “bad faith.” United States v.
Leal-Del Carmen, 697 F.3d 964, 969–70 (9th Cir. 2012). Here, Pedrin presents no
evidence that Perez told anyone that he was willing to offer exculpatory testimony
before he was deported. “When the government doesn’t know what a witness will
say, it doesn’t act in bad faith by deporting him.” Id. at 970.
5. Pedrin next argues that the district court abused its discretion in denying
his motions for a mistrial based on two instances of alleged prosecutorial
misconduct. We disagree. Even assuming that the prosecutor’s statements were
inappropriate, the district court did not abuse its discretion in concluding that,
“considered in the context of the entire trial,” the statements were not “likely to
have affected the jury’s discharge of its duty to judge the evidence fairly.” United
States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000). Further, the district court
could reasonably have concluded that the errors could be cured by providing
appropriate instructions to the jury, which it did. See United States v. Cardenas-
Mendoza, 579 F.3d 1024, 1029–30 (9th Cir. 2009).
6. Pedrin next argues that there was insufficient evidence to support his
conviction. We disagree. In reviewing the sufficiency of the evidence, we ask
“whether ‘after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
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beyond a reasonable doubt.’” United States v. Nevils, 598 F.3d 1158, 1163–64
(9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Here, a rational jury could easily have concluded that Pedrin (1) agreed to rob the
stash house, an “illegal objective”; and (2) intended to possess with intent to
distribute 40 to 50 kilograms of cocaine. See Herrera-Gonzalez, 263 F.3d at 1095.
The jury heard audio recordings of Pedrin agreeing to participate in the conspiracy,
and heard testimony from Bombard that he had previously committed similar
crimes. This was more than enough to satisfy the deferential Jackson standard.
7. Pedrin’s final argument regarding his trial is that cumulative error
rendered it fundamentally unfair. See United States v. Inzunza, 638 F.3d 1006,
1024 (9th Cir. 2011). We disagree. At most, the district court made a single
isolated error in permitting Zayas to offer opinion testimony, and the prosecutor
made two inappropriate statements. We find no cumulative error that would
require reversal.
8. With respect to his sentence, Pedrin first argues that the district court
erred by relying on the weight of the fictitious cocaine to set his base offense level.
We conclude the district court did not err. The commentary to the Sentencing
Guidelines specifically instructs that in a drug conspiracy in which the agreed-upon
quantity and the actual quantity differ, “the agreed-upon quantity of the controlled
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substance shall be used to determine the offense level unless . . . the amount
delivered more accurately reflects the scale of the offense.” U.S.S.G. § 2D1.1 cmt.
5. It further specifies that, “in a reverse sting, the agreed-upon quantity of the
controlled substance would more accurately reflect the scale of the offense because
the amount actually delivered is controlled by the government, not by the
defendant.” Id.
9. Pedrin next argues that the district court plainly erred in not instructing
the jury on sentencing entrapment, and that it abused its discretion in not departing
downward on the basis of sentencing entrapment. “Sentencing entrapment occurs
where ‘a defendant, although predisposed to commit a minor or lesser offense, is
entrapped in committing a greater offense subject to greater punishment.’” United
States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010) (quoting United States v.
Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994)). The district court did not abuse its
discretion in denying Pedrin a downward departure on the basis of sentencing
entrapment. There was no evidence that Pedrin expressed hesitation or reluctance
about the scheme, nor that he expressed concern regarding the quantity of drugs at
issue. See United States v. Black, 733 F.3d 294, 312–13 (9th Cir. 2013). For
similar reasons, we reject Pedrin’s argument that the district court plainly erred by
not providing an instruction to the jury on sentencing entrapment. Even if Pedrin
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would have been entitled to such an instruction under United States v. Cortes, 757
F.3d 850, 864–65 (9th Cir. 2014), he did not request one at trial, and given the
discretionary nature of the decision to provide a jury instruction, we conclude there
was no plain error.
10. Pedrin finally argues that the district court imposed a substantively
unreasonable sentence. We disagree. “[I]n the overwhelming majority of cases, a
Guidelines sentence will fall comfortably within the broad range of sentences that
would be reasonable in the particular circumstances.” United States v. Laurienti,
731 F.3d 967, 976 (9th Cir. 2013) (internal quotations omitted). Here, the district
court imposed a below-Guidelines sentence of 210 months, taking into account the
unusual nature of the sting operation and the impact of Pedrin’s family history.
There was no abuse of discretion.
AFFIRMED.
NOONAN, Circuit Judge, dissents.
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