United States v. Dennis Clinton , 617 F. App'x 836 ( 2015 )

FILED
NOT FOR PUBLICATION OCT 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50579
Plaintiff - Appellee, D.C. No. 8:08-cr-00176-DOC-7
v.
MEMORANDUM*
DENNIS J. CLINTON, AKA Dennis Lee
Clinton,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-50582
Plaintiff - Appellee, D.C. No. 8:08-cr-00176-DOC-5
v.
WILLIAM JOSEPH FERRY,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted October 20, 2015**
Pasadena, California
Before: IKUTA and OWENS, Circuit Judges and SESSIONS,*** District Judge.
Dennis Clinton and William Ferry appeal convictions for conspiracy, mail
fraud, and wire fraud. Because the parties are familiar with the facts, we do not
recount them except as necessary. Having jurisdiction under 28 U.S.C. § 1291, we
reject the appellants’ claims and affirm.
First, we decline to address Clinton’s ineffective assistance of counsel claim.
“‘As a general rule,’ we do not review [these] claims on direct appeal” and neither
exception to the rule applies here. See United States v. Benford, 574 F.3d 1228,
1231 (9th Cir. 2009).
Second, the district court did not abuse its discretion in excluding evidence
of a co-defendant’s dismissal as more prejudicial than probative. The dismissal
was not probative of the appellants’ guilt or innocence and evidence of the
dismissal created an “undue tendency” that the jury would rely on an improper
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
2 13-50579
basis to decide the case. See United States v. Gonzalez-Flores, 418 F.3d 1093,
1098 (9th Cir. 2005); United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992).
Third, the district court did not err when it held an ex parte hearing with the
government concerning the co-defendant’s dismissal. The district court properly
reviewed the government’s reasons for dismissing the co-defendant in camera to
determine if the information was exculpatory, and as a result would need to be
disclosed to the defendant. See Brady v. Maryland, 373 U.S. 83 (1963); United
States v. Alvarez, 358 F.3d 1194, 1208–09 (9th Cir. 2004).
Fourth, the transcript of the ex parte hearing should remain sealed. After
determining that the transcript was not relevant to the defendants’ defense, and
therefore not Brady material, the district court had no obligation to release it. See
Alvarez, 358 F.3d at 1208.
Appellant’s motion for judicial notice is denied.
AFFIRMED.
3 13-50579