United States v. Ricky Hitsman , 624 F. App'x 462 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 24 2015
MOLLY C. DWYER, CL
U.S. COURT OF APPEA
UNITED STATES OF AMERICA, No. 13-50521
Plaintiff-Appellee, D.C. No. 2:12-cr-00221-DSF
v. MEMORANDUM*
RICKY DAVID HITSMAN,
AKA Rick David Hitsman,
Defendant-Appellant
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted July 6, 2015
Pasadena, California
Before: FERNANDEZ and CLIFTON, Circuit Judges, and MUELLER,** District
Judge.
Ricky David Hitsman was convicted of five violations of 18 U.S.C.
§ 2320(a) for trafficking in counterfeit Viagra. He appeals his conviction on five
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kimberly J. Mueller, District Judge for the U.S. District
Court for the Eastern District of California, sitting by designation.
grounds: (1) the evidence against him was constitutionally insufficient; (2) his
prior recorded statements were improperly excluded as hearsay; (3) a photograph
comparing real and fake Viagra pills was improperly admitted; (4) the government
unconstitutionally exercised a peremptory strike to excuse a black juror; and (5) a
government witness improperly testified Hitsman had invoked his right to counsel.
I. Sufficiency of Evidence
Appellant challenges the sufficiency of the evidence showing that Hitsman
sold counterfeit pills and knew those pills were counterfeit. Evidence is
constitutionally sufficient if, viewed in the light most favorable to the prosecution,
“any rational trier of fact” could have found the essential elements of the crime
beyond a reasonable doubt. United States v. Nevils, 598 F.3d 1158, 1163–65
(2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))
(emphasis in original).
First, although the government presented relatively weak evidence to
establish a chain of custody between the pills Hitsman sold and the pills confirmed
by lab testing to be counterfeit, viewed in the light most favorable to the
government, this evidence was sufficient. Moreover, Hitsman’s counsel conceded
throughout trial and in closing argument that the pills were counterfeit. See United
States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991).
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Second, the evidence was sufficient to show Hitsman knew the mark on the
pills was counterfeit based on his recorded statements played to the jury, the
photograph comparing genuine pills with the pills Hitsman sold, in-person
demonstrations at trial comparing genuine pills and the pills Hitsman sold, and
other evidence presented at trial.
II. Hearsay
A district court’s constructions of the hearsay rules are reviewed de novo,
and decisions to admit or exclude evidence under those rules are reviewed for
abuse of discretion. United States v. Morales, 720 F.3d 1194, 1199 (9th Cir.
2013). The district court correctly concluded that each of Hitsman’s excluded
statements was hearsay because Hitsman intended to introduce each as evidence of
his stated belief, and either (1) the statement’s relevance for that purpose depended
on whether he had truthfully stated his belief; or (2) the statement evidenced his
belief only if its component factual assertions were true. See Fed. R. Evid. 801,
802.
Despite their status as hearsay, Hitsman intended to offer some of his
statements as evidence of his false belief, not of the truth of any underlying factual
assertion. See Fed. R. Evid. 803(3). For example, he sought to introduce his prior
statement that authentic drugs were coming out “the back door” of a Pfizer factory.
Nevertheless, any district court error in failing to recognize the hearsay exception
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was harmless. See United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997).
The government introduced some of the same and several equivalent statements,
which the district court properly admitted. Other evidence of Hitsman’s guilt was
strong.
III. Admission of a Comparison Photograph
The district court admitted a photograph comparing two authentic and two
counterfeit Viagra pills. Decisions to admit evidence are reviewed for abuse of
discretion. Morales, 720 F.3d at 1199. The district court did not abuse its
discretion in admitting the photograph. It was introduced after testimony by the
photographer, who described where he obtained the pills and how and when he
took the picture. Hitsman has only speculated regarding the potential for
distortion.
IV. Discriminatory Peremptory Strike
The Equal Protection Clause prohibits prosecutors from intentionally
striking a potential juror on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89
(1986). To challenge a peremptory strike under Batson, the defendant must first
make out a prima facie case of discrimination. Id. at 96–97. Second, if the
defendant satisfies his burden at the first step, the government must put forward a
neutral explanation for its decision to strike. Id. at 97–98. Third, the trial court
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must determine whether the defendant has proven purposeful discrimination. Id.
at 98.
Here, Hitsman objected after the government struck Juror No. 4, who was
black. The premise of the objection as stated by defense counsel was that Juror
No. 4 was the only black member of the panel, “leaving the jury with not a single
African American member.” That was, in fact, not the case. The district court
noted that there was at least one other African American member of the panel. The
district court concluded Hitsman had not made out a prima facie case of purposeful
discrimination, but still invited the prosecutor to explain. The district court then
denied the challenge without explanation. This court’s precedent suggests that
once a prosecutor explains a challenged strike, the district court must proceed to
step three of Batson, “evaluate meaningfully the persuasiveness” of the
prosecutor’s explanation, and create “a clear record” of its “deliberate decision on
the ultimate question of purposeful discrimination.” United States v. Alanis,
335 F.3d 965, 968–69 & n.2 (9th Cir. 2003). The district court’s step-three
decision is typically reviewed for clear error. Snyder v. Louisiana, 552 U.S. 472,
477 (2008). Here, because the district court did not explain on the record its
reasons for denying the challenge, this court has nothing to which it can defer. See
id. at 479; Alanis, 335 F.3d at 969 & n.3.
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Under these circumstances, applying a de novo standard of review, the
record on appeal shows the prosecutor’s explanation was race neutral and not
pretext for racial discrimination. The prosecutor explained Juror No. 4 had
attended the last day of her brother’s trial, at which he was convicted of a drug
offense, had indicated she was emotionally affected by the conviction, and had a
cousin who was involved in a gun crime, who was also serving a custodial
sentence. Only Juror No. 4 described attending a family member’s trial. Juror No.
4 was one of two jurors who requested to discuss charges and convictions at the
sidebar, and the government struck both. Although Juror No. 4 did not say she was
emotionally affected, her request to discuss the matter privately was consistent
with an indication of emotion.
V. Invocation of the Right to Counsel
The government may not impeach a criminal defendant with his decision to
remain silent, Doyle v. Ohio, 426 U.S. 610, 619 (1976), or to hire a lawyer, United
States v. Kallin, 50 F.3d 689, 693 (9th Cir. 1995). During cross examination, one
of the government’s witnesses responded to a question by saying Hitsman had
“lawyered up” and “seeked [sic] counsel.” The district court promptly allowed a
sidebar at defense counsel’s request, and the court denied a motion for mistrial.
The line of questioning ceased, and no one mentioned the answer again until the
next morning, when the district court firmly instructed the jury not to consider it.
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If the witness’s statement violated the rule of Doyle, the error was harmless.
See United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991). The
circumstances suggest the statement was not calculated to imply Hitsman’s guilt.
Although the district court’s curative instruction came the next morning, neither
party stressed the statement or suggested Hitsman’s guilt could or should be
inferred from it, and the statement was very brief.
VI. Conclusion
Given the nature of any errors, as discussed above, the cumulative effect was
not prejudicial. See United States v. Ruiz, 710 F.3d 1077, 1080 n.1 (9th Cir.)
(noting isolated errors do not justify reversal), cert. denied, 134 S. Ct. 488 (2013).
AFFIRMED.
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