United States v. Behrooz Badie ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10636
Plaintiff - Appellee, D.C. No. 2:08-cr-00474-WBS
v.
MEMORANDUM*
BEHROOZ BADIE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted December 8, 2014**
San Francisco, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and NAVARRO, Chief
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Gloria M. Navarro, Chief District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
Defendant-Appellant Behrooz Badie appeals the district court’s entry of
judgment and imposition of sentence. We have jurisdiction under 18 U.S.C.
§ 1291, and affirm.
We reject Defendant-Appellant’s argument that the trial court abused its
discretion by denying Defendant-Appellant’s motion to exclude Agent
Sommercamp’s testimony. The trial court did not commit error under United
States v. Curtin, 489 F.3d 935, 957–58 (9th Cir. 2007) (en banc), because the FBI
302s at issue were not proffered or received as evidence. Additionally, “[i]ssues of
credibility are to be resolved by the jury, not the trial court.” United States v.
Evans, 728 F.3d 953, 964 (9th Cir. 2013) (quoting Rainey v. Conerly, 973 F.2d
321, 326 (4th Cir. 1992)) (internal quotation marks omitted).
We likewise reject Defendant-Appellant’s claim that Judge Garcia
committed plain error by failing to recuse himself. Judge Garcia did not “display a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 555 (1994). At most, Judge Garcia’s actions
and comments were permissible “expressions of impatience, dissatisfaction,
annoyance, and even anger.” Id. at 555–56.
Finally, we reject Defendant-Appellant’s claim that the trial court abused its
discretion by denying Defendant-Appellant’s motion for continuance of sentence
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proceedings. Defendant-Appellant was not diligent in readying his defense prior to
the date of sentencing; it is unlikely that the need for the continuance would have
been met if the continuance had been granted; the continuance would have
inconvenienced the trial court; and Defendant-Appellant was not prejudiced by the
denial of the motion. See United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.
1985).
AFFIRMED.
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