United States v. Reyes Vega , 669 F. App'x 395 ( 2016 )

FILED
NOT FOR PUBLICATION
SEP 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50357
Plaintiff-Appellee, D.C. No. 2:13-cr-00295-R-1
v.
MEMORANDUM*
REYES VEGA, AKA Ray Vega,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 14-50381
Plaintiff-Appellee, D.C. No. 2:13-cr-00295-R-4
v.
AURORA BARRERA,
Defendant-Appellant.
Appeals from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted September 1, 2016
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: TASHIMA, WARDLAW, and BYBEE, Circuit Judges.
Reyes Vega and Aurora Barrera appeal their convictions for conspiracy to
commit bank robbery and bank robbery by use of a dangerous device. We have
jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.
1. The defendants did not preserve the issue of severance, thereby waiving the
claim on appeal. “Motions to sever must be timely made and properly maintained, or
the right to severance will be deemed waived.” United States v. Kaplan, 554 F.2d
958, 965 (9th Cir. 1977). Failure to renew a severance motion at the close of evidence
“generally waives appellate review” unless the defendant “‘can show either that he
diligently pursued severance or that renewing the motion would have been an
unnecessary formality.’” United States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008)
(quoting United States v. Decoud, 456 F.3d 996, 1008 (9th Cir. 2006)). Barrera did
not renew her motion to sever at the close of evidence, and she did not demonstrate
that she otherwise pursued severance or that a renewed motion at the close of evidence
would have been futile. Vega failed entirely to move for severance or to join in
Barrera’s severance motion. Both defendants thus waived the issue of severance.
2. The district court’s interjections during defendants’ cross-examinations of
prosecution witnesses did not constitute a Confrontation Clause violation. “A
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limitation on cross examination ‘does not violate the Confrontation Clause unless it
limits relevant testimony and prejudices the defendant.’” United States v. Holler, 411
F.3d 1061, 1066 (9th Cir. 2005) (quoting United States v. Bensimon, 172 F.3d 1121,
1128 (9th Cir. 1999)). Because the defendants failed to identify any material lines of
inquiry precluded by the district court’s interruptions, those interruptions did not rise
to the level of a constitutional violation.
3. The district court did not plainly err in admitting evidence of Vega’s prior
bad acts. A party whose counsel “either introduced or opened the door” to certain
testimony may not subsequently challenge the use of that testimony against him.
Loher v. Thomas, 825 F.3d 1103, 1118 (9th Cir. 2016). Vega’s counsel relied on
Vega’s past romantic and business misconduct to corroborate Vega’s alibi and
impeach a prosecution witness. Because Vega opened the door to testimony regarding
his romantic and business misconduct, the district court’s admission of that testimony
was not plain error.
4. The district court did not err in finding that the evidence presented at trial
was sufficient to support Barrera’s conviction for assault with a dangerous device. A
conviction for assault requires, in relevant part, proof of “a threat or attempt to inflict
bodily harm.” United States v. Brannon, 616 F.2d 413, 419 (9th Cir. 1980) (citation
omitted) (internal quotation marks omitted); see also 18 U.S.C. § 2113(d). Barrera’s
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co-worker Palomera testified that Barrera showed her a purported bomb and
repeatedly said that they should comply with the robbers’ demands because she didn’t
want anyone to get hurt. Accepting this evidence, a rational jury could have found
beyond a reasonable doubt that Barrera threatened Palomera with bodily harm. See
United States v. Backman, 817 F.3d 662, 667–68 (9th Cir. 2016).
5. Even if the district court erred in excluding Barrera’s call to 911, the error
was harmless. “We will reverse an evidentiary ruling for abuse of discretion ‘only if
such nonconstitutional error more likely than not affected the verdict.’” United States
v. Hinkson, 585 F.3d 1247, 1282 (9th Cir. 2009) (en banc) (quoting United States v.
Edwards, 235 F.3d 1173, 1178–79 (9th Cir. 2000)). Although the 911 call might have
provided some corroboration for Barrera’s account of events, the balance of the
evidence supported the prosecution’s theory and revealed inconsistencies in Barrera’s
defense. In addition, because Barrera testified in her own defense, the jury had an
opportunity beyond the 911 call to assess her credibility. Any error arising from the
exclusion of the evidence did not more likely than not affect the verdict.
AFFIRMED.
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