United States v. Maxwell Gaffney ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50037
Plaintiff-Appellee, D.C. No.
3:17-cr-03330-MMA-1
v.
MAXWELL JOSEPH GAFFNEY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted October 5, 2021
Pasadena, California
Before: GRABER and CHRISTEN, Circuit Judges, and SEEBORG,** District
Judge.
Maxwell Gaffney appeals his conviction for distribution of heroin resulting
in death in violation of 21 U.S.C. § 841(b)(1)(C). We have jurisdiction under 28
U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard Seeborg, Chief United States District Judge
for the Northern District of California, sitting by designation.
1. The district court did not err in declining to instruct the jury that
proximate cause was required to convict Gaffney. We review de novo whether an
instruction omitted or misstated an element of the charged offense. United States v.
Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010). “[P]roximate cause is not a required
element for conviction and sentencing under § 841(b)(1)(C).” United States v.
Houston, 406 F.3d 1121, 1124–25 (9th Cir. 2005). The Supreme Court’s decision
in Burrage v. United States, 571 U.S. 204 (2014), holding that but-for causation is
required, did not call into question the holding or reasoning in Houston. See United
States v. Gonzalez, 906 F.3d 784, 799 (9th Cir. 2018).
2. The district did not err in declining to give Gaffney’s proposed jury
instructions concerning his theory of defense. We review de novo “[w]hether the
other instructions adequately cover the theory of defense.” United States v. Del
Muro, 87 F.3d 1078, 1081 (9th Cir. 1996). Gaffney’s proposed instructions either
were repetitive of instructions given by the court or misstated the law. See id.;
United States v. George, 420 F.3d 991, 1000 (9th Cir. 2005) (holding that a
defendant “is not entitled to an instruction that misstates the law”).
3. The district court did not err in admitting images of Facebook messages
between Gaffney and another heroin purchaser. We review evidentiary rulings for
abuse of discretion. United States v. Whittemore, 776 F.3d 1074, 1077 (9th Cir.
2015). The text messages were relevant, probative, and properly authenticated, and
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they were not inadmissible hearsay. As the messages were similar to the ones
between Gaffney and the decedent Kyle Rodriguez, they were relevant to
Gaffney’s knowledge, intent, and lack of mistake concerning the sale of heroin to
Rodriguez. See Fed. R. Evid. 401 (“Evidence is relevant if . . . it has any tendency
to make a fact more or less probable than it would be without the evidence[.]”);
Fed. R. Evid. 404(b)(2). Given the relevance of the messages, any prejudicial
effect did not “substantially outweigh[]” their probative value. Fed. R. Evid. 403.
The messages were properly authenticated because, among other reasons, the
phone number used by the account holder “Max Gaffney” in the messages was
Gaffney’s phone number. See Fed. R. Evid. 901(a).
Additionally, non-constitutional errors in evidentiary rulings are subject to
harmless error review. United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir.
2002). The messages between Gaffney and the other purchaser only went to the
elements of whether Gaffney sold heroin to Rodriguez and whether he knew what
he sold was heroin. The government provided other evidence of these elements at
trial, including the messages between Gaffney and Rodriguez, and drug
paraphernalia found in Gaffney’s home. Even if the district court erred in admitting
the messages between Gaffney and the other purchaser, “it is more probable than
not that the error did not materially affect the verdict.” Id. (internal quotation
marks and citation omitted). Finally, the messages sent to Gaffney were admissible
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as non-hearsay evidence because they were admitted to show their effect on
Gaffney, not for their truth. See Fed. R. Evid. 801(c)(2).
4. Sufficient evidence supports the verdict. Gaffney argues that there was
insufficient evidence that Rodriguez had lethal levels of heroin in his system and
that the heroin Rodriguez used when he overdosed must have been supplied by
someone other than Gaffney. Multiple experts, however, testified that Rodriguez
would not have died but for the heroin. The case agent who reviewed the contents
of Rodriguez’s phone testified that the only messages in which Rodriguez
successfully arranged to buy heroin close to the date of his death were the ones
with Gaffney. Further, the government also presented evidence that Rodriguez did
not use heroin earlier in the evening before his overdose at home. Friends and
family testified that Rodriguez did not appear to be on drugs earlier in the day, and
that Rodriguez ate a large meal on his way home, which an expert opined he would
not have been able to eat if he had already used heroin that evening. Viewing the
evidence “in the light most favorable for the prosecution . . . [a] 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, 1161 (9th Cir. 2010) (en banc)
(internal quotation marks and citation omitted).
5. The district court did not abuse its discretion in denying Gaffney’s motion
for a new trial. See United States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011)
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(reviewing for abuse of discretion the denial of a motion for a new trial). Although
the standard governing motions for a new trial is “much broader” than the one
governing motions for acquittal, United States v. Kellington, 217 F.3d 1084, 1097
(9th Cir. 2000) (quoting United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d
1206, 1211 (9th Cir. 1992)), this case is not an “exceptional case[] in which the
evidence preponderates heavily against the verdict,” United States v. Pimentel, 654
F.2d 538, 545 (9th Cir. 1981) (internal quotation marks and citation omitted).
Instead, the government provided significant evidence to support each of the
elements of the offense. Further, Gaffney argues that his prosecution and
conviction were unfair given his lack of prior involvement in Rodriguez’s battle
with addiction. This argument, however, concerns Congress’s design of the statute,
not a lack of evidence to support the conviction.
AFFIRMED.
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