United States v. Iqbal Singh-Sidhu , 644 F. App'x 784 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 17 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10337
Plaintiff - Appellee, D.C. No. 3:13-cr-00032-RCJ-
VPC-1
v.
IQBAL SINGH-SIDHU, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted March 14, 2016**
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Iqbal Singh-Sidhu appeals his jury conviction for various offenses under the
Controlled Substance Act (CSA) and the Controlled Substance Analogue
Enforcement Act (Analogue Act) stemming from his sale of “Spice” to an
*
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).
undercover DEA officer on three separate occasions in 2012. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm Singh-Sidhu’s conviction.
1. We decline, under the invited error doctrine, to review Singh-Sidhu’s
challenge to the jury instructions on “knowledge” and “deliberate ignorance,”
addressing the government’s burden of proof to show that he acted with the
requisite “knowledge” required by the CSA and the Analogue Act. See 21 U.S.C.
§§ 802(32), 813, 841(a)(1); McFadden v. United States, 135 S. Ct. 2298, 2302
(2015) (holding that § 841(a)(1) of the CSA “makes it unlawful knowingly to
manufacture, distribute, or possess with intent to distribute controlled substances”).
Singh-Sidhu invited the error, if any, when he stipulated to the jury instruction on
knowledge and proposed the jury instruction on deliberate ignorance. In doing so,
he “intentionally relinquished or abandoned a known right.” United States v.
Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc).
At the conclusion of trial, the parties discussed and refined the language of
these instructions and defense counsel confirmed that he “got it” and had “no
objection.” In addition, Judge Jones explained the legal definition of “knowledge”
at the beginning of trial and informed defense counsel that he was free to object or
ask for a sidebar to further discuss these instructions. Defense counsel never
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objected. This is record evidence that Singh-Sidhu considered the objection “but
then, for some tactical or other reason, rejected the idea.” Id.
Nor do we reach this argument, as Singh-Sidhu urges, through the “guise of
ineffective assistance of counsel on direct appeal.” “[A]s a general rule, we do not
review challenges to the effectiveness of defense counsel on direct appeal,” and the
record in this case is not “sufficiently developed to permit determination” of this
issue. United States v. Moreland, 622 F.3d 1147, 1157 (9th Cir. 2010) (citation
omitted).
2. The district court did not abuse its discretion by admitting a photograph
of multiple Viagra pills that were found during the government’s search of Singh-
Sidhu’s store. See United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002)
(reviewing admission of evidence under Fed. R. Evid. 404(b) for an abuse of
discretion). Under Federal Rule of Evidence 404(b), the Viagra pills were
admissible as probative of Singh-Sidhu’s intent to distribute the charged drugs.
See Fed. R. Evid. 404(b); United States v. Bailey, 696 F.3d 794, 799 (9th Cir.
2012). As the trial court explained, the fact that multiple Viagra pills—a drug that
can be illegally distributed and is intended for human consumption—were found
near several packets of Spice is relevant to show Singh-Sidhu’s similar intent with
regards to the Spice. See Romero, 282 F.3d at 688 (defendant’s previous drug-
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related activities admissible to show defendant’s knowledge of cocaine distribution
methods); see also United States v. Curtin, 489 F.3d 935, 944 (9th Cir. 2007) (en
banc) (“Rule 404(b) is a rule of inclusion—not exclusion . . . .”). Finally, any
alleged error was harmless, because the jury knew about the Viagra even without
the photograph and the trial court properly instructed the jury not to consider any
evidence of other crimes or acts. See Weeks v. Angelone, 528 U.S. 225, 234 (2000)
(“A jury is presumed to follow its instructions.”).
3. Finally, Singh-Sidhu challenges the admission of Dr. Ghozland’s
testimony regarding the adverse effects of synthetic cannabinoids on humans. We
review the admission of this evidence under a plain error standard of review
because Singh-Sidhu made the “wrong specific objection” at trial. See United
States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990). The district court
properly ruled that the “probative value” of Dr. Ghozland’s testimony was not
“substantially outweighed” by the danger of unfair prejudice. See United States v.
Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000). Dr. Ghozland’s testimony was
relevant to show that the charged drugs were analogues and that Singh-Sidhu
possessed more Spice than a single individual could consume. Dr. Ghozland’s
testimony was limited to general statistics and did not have the “undue tendency”
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to influence the jury to reach a verdict based on emotion. Id. The district court did
not plainly err by admitting Dr. Ghozland’s testimony.
AFFIRMED.
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