United States v. Freddie Bernal ( 2013 )

FILED
NOT FOR PUBLICATION JUL 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30098
Plaintiff - Appellee, D.C. No. 3:10-cr-00298-EJL-2
v.
MEMORANDUM*
FREDDIE MICHAEL BERNAL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted July 12, 2013**
Portland, Oregon
Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
Freddie Michael Bernal appeals his jury conviction and sentence for willful
injury or depredation of property of the United States in violation of 18 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1361 and false statement of material fact in violation of 18 U.S.C. § 1001(a)(2).
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.
The district court did not abuse its discretion in admitting evidence that
Bernal damaged Nez Perce pictographs when he spray painted rocks on federal
government land. As the district court found, the evidence of pictograph damage
was highly probative for two elements of the offense under § 1361—the nature of
the damage and the cost of the damage—and was not unduly prejudicial. See
United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008) (holding that the
probative value of the evidence is high where it is “not extrinsic to the crime
charged” but instead directly related to the offense). Further, the district court did
not commit plain error in failing to exclude, sua sponte, the testimony of Julia
Altman and other witnesses whom Appellant purports have testified “cloaked with
the mantle of an expert.” See Jinro America Inc. v. Secure Investments Inc., 266
F.3d 993, 1004 (9th Cir. 2000). The testimony was not unduly prejudicial, given
the nature the witnesses’ testimony and that the Government did not designate
these witnesses as experts. Thus, the evidence of pictograph damage and the
testimony of such witnesses were properly admitted under Federal Rule of
Evidence 403.
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The district court also did not abuse its discretion in denying Bernal’s
request that the jury view the site of the damaged pictographs in person. The
district court properly considered that taking the jury to view the site was
logistically difficult. See Hametner v. Villena, 361 F.2d 445, 446 (9th Cir. 1966)
(per curiam). To reach the site, the jury would be required to drive from the
courthouse to the state park and hike for about an hour from the parking lot. The
district court also considered that the jury had sufficient evidence to understand
what was depicted at the site and the nature of the damage inflicted to the site by
the defendants. That evidence included over one hundred photographs and
exhibits related to the rock face at the Red Elk Rock Shelter, and testimony of
witnesses who described the site and the damage caused to the site. See Hughes v.
United States, 377 F.2d 515, 516 (9th Cir. 1967) (holding that the district court did
not abuse its discretion by denying the jury a site visit where photographs of the
site were admitted into evidence).
Finally, the district court did not abuse its discretion in sentencing Bernal.
The district court correctly calculated the guidelines range before departing
downward to a below-Guidelines sentence of 36 months imprisonment. The
district court stated that it had considered the 18 U.S.C. § 3553(a) factors,
including the need to avoid unwarranted sentence disparities between co-
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defendants. See 18 U.S.C. § 3553(a)(6). Moreover, the district court explained
that it was sentencing Bernal to a higher sentence than his co-defendants because
the co-defendants cooperated with the government’s investigation, accepted
responsibility for their actions, and were not convicted of the second crime of false
statement of material fact.
Furthermore, the sentence imposed on Bernal was not substantively
unreasonable. In sentencing Bernal, the district court properly considered §
3553(a) factors by noting Bernal’s individual background, criminal record,
additional conviction of false statement of material fact, and failure to cooperate
with the government or to accept responsibility for his actions. See United States
v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (holding that a sentence
is substantively unreasonable if, under the totality of the circumstances, it fails to
properly reflect § 3553(a) considerations ).
AFFIRMED.
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