United States v. Dennis Cyrus, Jr. , 526 F. App'x 794 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10576
Plaintiff - Appellee, D.C. No. 3:05-cr-00324-MMC-2
v.
MEMORANDUM*
DENNIS CYRUS, JR.,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted April 19, 2013
San Francisco, California
Before: HAWKINS, GRABER, and CHRISTEN, Circuit Judges.
Dennis Cyrus (“Cyrus”) appeals his jury trial conviction and life sentence
arising out of a series of San Francisco area murders. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
Cyrus was found to have: participated in a racketeering influenced and corrupt
organization through his membership in the Page Street Gang; possessed drugs with
intent to distribute and with intent to distribute within 1,000 feet of a public housing
facility; conspired to distribute fifty grams or more of crack cocaine; murdered Randy
Mitchell and Raymond Jimmerson; kidnapped and murdered Joseph Hearns; assaulted
and attempted to murder Marcus Atkinson as violent crimes in aid of racketeering
(“VICAR”); murdered Raymond Jimmerson to prevent his future cooperation with
federal law enforcement or involvement in court proceedings; murdered Raymond
Jimmerson in retaliation for his previous cooperation with federal law enforcement
and testimony in front of a federal grand jury; and used firearms during the
commission of the three murders and the attempted murder.
Reviewed for abuse of discretion, the admission of the testimony of San
Francisco Police Officer Brian Peagler as an expert on street gangs was proper and not
prejudicial. United States v. Hankey, 203 F.3d 1160, 1166–67, 1169–70 (9th Cir.
2000). The district court permissibly assessed Officer Peagler’s reliability during
trial, United States v. Alatorre, 222 F.3d 1098, 1102–05 (9th Cir. 2000), and did not
abuse its discretion in admitting his expert testimony on street gang organization and
operation, see United States v. Padilla, 387 F.3d 1087, 1094 (9th Cir. 2004).
Neither did the court abuse its discretion in admitting the other evidence
2
challenged on appeal. The testimony from analysts employed by the San Francisco
criminal laboratory was based on well-established drug identification techniques used
to identify the samples at issue. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,
150 (1999). There was no error in admitting the lyrics found in Cyrus’s possession,
given the weight of other evidence against Cyrus. See United States v. Weiland, 420
F.3d 1062, 1078–79 (9th Cir. 2005).
Cyrus argues for the first time on appeal that the videotaped interview of his
cousin, Darryl McQuillion, was erroneously admitted. But there was no plain error
in admitting the tape, as the court was presented evidence sufficient to determine the
interview played for the jury was the same interview McQuillion adopted in prior
testimony. United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000); see also United
States v. Tran, 568 F.3d 1156, 1163 (9th Cir. 2009). Further, any error was harmless
because the jury received sufficient other evidence to convict Cyrus of the Jimmerson
murder charges even without McQuillion’s taped statements. See United States v.
Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc).
Nor was there plain error in the admission of Inspector Herman Jones’s
testimony that McQuillion told him that Cyrus said he killed Jimmerson to advance
in the gang. While hearsay, the statement duplicated motivation evidence presented
3
by expert and cooperating witnesses, and was therefore insufficient to affect Cyrus’s
substantial rights. See United States v. Olano, 507 U.S. 725, 736 (1993).
Cyrus argues that the evidence was insufficient to establish that he possessed
the requisite intent under the witness tampering, witness retaliation, and VICAR
statutes in the murder of Ray Jimmerson. Viewed in the light most favorable to the
prosecution, a rational trier of fact could have found, on the basis of McQuillion’s
taped interview and cooperating witness and jailhouse informant testimony, that Cyrus
murdered Jimmerson to retaliate against past cooperation with federal law
enforcement and to prevent future law enforcement. In the same light, a rational trier
of fact could have credited expert testimony regarding gang promotion and
cooperating witness testimony to find that gang promotion was at least a general
purpose of Cyrus’s Jimmerson murder. See United States v. Banks, 514 F.3d 959,
969–70 (9th Cir. 2008).
Cyrus argues, again for the first time on appeal, that the government improperly
vouched for the credibility of cooperating witnesses Lacy Jackson and Donald
Armour in closing statements. Reviewed for plain error, United States v. Dorsey, 677
F.3d 944, 953 (9th Cir. 2012), petition for cert. filed, __ U.S.L.W. __ (U.S. Sept. 28,
2012) (No. 12-6571), the government told the jury to consider two things when
weighing Jackson’s and Armour’s credibility: the district court judge, not a
4
prosecutor, would determine a sentence for Jackson and Armour, and the “hallmark
of the truth” is when pieces fit together. Because the prosecutor’s statement did not
invoke the authority of the court to bolster the credibility of a cooperating witness who
had received a reduced sentence for his cooperation, there was no error. See id. at
954.
Because any errors were de minimus and did not affect the outcome of the trial,
there was no cumulative error. See United States v. Lindsey, 634 F.3d 541, 555 (9th
Cir. 2011), cert. denied, 131 S. Ct. 2475 (2011).
AFFIRMED.
5