United States v. Stacy Stith , 357 F. App'x 91 ( 2009 )

FILED
NOV 24 2009
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30012
Plaintiff - Appellee, D.C. No. 2:07-cr-00337-JLR
v.
MEMORANDUM *
STACY EARL STITH,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted November 2, 2009
Seattle, Washington
Before: ALARCÓN, FERNANDEZ and CLIFTON, Circuit Judges.
Stacy Earl Stith appeals his conviction on drug charges based on three
alleged trial errors. While the issues Stith raises might require reversal in an
appropriate case, the overwhelming evidence against Stith’s entrapment defense
rendered any error harmless. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We assume without deciding that the government’s cross-examination
regarding Stith’s prior not-guilty pleas infringed on Stith’s constitutional right to
be proved guilty of those charges beyond a reasonable doubt. See United States v.
Norris, 910 F.2d 1246, 1247 (5th Cir. 1990). We need not decide that issue
because even if there was error, it was harmless.
The amount of drugs that Stith had with him when he was arrested, his
conduct in recorded telephone calls, and his implausible explanation of the
informant’s scheme leave us convinced beyond a reasonable doubt that any error
was harmless. See Chapman v. California, 386 U.S. 18, 24 (1967). The evidence
against Stith’s entrapment defense was overwhelming. Cf. United States v.
Velarde-Gomez, 269 F.3d 1023, 1034–35 (9th Cir. 2001) (en banc) (considering
the weight of evidence in determining whether an officer’s comments on a
defendant’s silence were harmless); United States v. Nobari, 574 F.3d 1065,
1081–82 (9th Cir. 2009) (considering the same in determining whether a
prosecutor’s misconduct was harmless).
The evidence against Stith also resolves the remaining issues because more
deferential standards of review apply to nonconstitutional and unpreserved errors.
Assuming there was improper admission of hearsay, that testimony more probably
than not had no material affect the verdict. See United States v. Seschillie, 310 F.3d
2
1208, 1214 (9th Cir. 2002); United States v. Rangel, 534 F.2d 147, 149 (9th Cir.
1976). And assuming that the unpreserved Confrontation Clause error occurred, it
did not affect Stith’s substantial rights. See United States v. Ramirez, 537 F.3d
1075, 1086 (9th Cir. 2008).
We do not conclude that the cumulative effect of the errors “rendered the
criminal defense far less persuasive and thereby had a substantial and injurious
effect or influence on the jury’s verdict.” Parle v. Runnels, 505 F.3d 922, 928 (9th
Cir. 2007) (internal quotations omitted); see also Nobari, 574 F.3d at 1083. Stith’s
entrapment defense would have been unpersuasive in an errorless trial.
AFFIRMED.
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