United States v. Damion Sleugh ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10547
Plaintiff-Appellee, D.C. No.
4:14-cr-00168-YGR-2
v.
DAMION SLEUGH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted February 14, 2020
San Francisco, California
Before: GOULD and MURGUIA, Circuit Judges, and FEINERMAN,** District
Judge.
A jury convicted Damion Sleugh of (1) conspiracy to distribute or possess
with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 846;
(2) attempted possession with intent to distribute marijuana, id.; (3) Hobbs Act
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
robbery, 18 U.S.C. §§ 1951(a), (b)(1); (4) using or carrying a firearm during or in
furtherance of a drug trafficking crime or crime of violence, id. §§ 2, 924(c);
(5) using a firearm during a crime of violence or drug trafficking crime and
causing murder, id. §§ 2, 924(j)(1); and (6) being a felon in possession of a
firearm, id. § 922(g)(1). Sleugh timely appealed, challenging his convictions on
several grounds. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Sleugh argues that the district court erred when it declined to instruct
the jury on voluntary and involuntary manslaughter. “We review the refusal to
instruct on a lesser included offense for abuse of discretion.” United States v.
Begay, 673 F.3d 1038, 1045 (9th Cir. 2011) (en banc). Because Sleugh’s trial
counsel conceded that the evidence did not support a voluntary manslaughter
instruction, the district court did not abuse its discretion in declining to give that
instruction. See id. Nor did the district court abuse its discretion when it declined
to give an involuntary manslaughter instruction, as the evidence did not support the
gross negligence finding necessary for an involuntary manslaughter conviction.
See United States v. Rivera-Alonzo, 584 F.3d 829, 834 (9th Cir. 2009).
2. Sleugh next argues that the district court erred when it permitted
certain testimony from the government’s Jamaican Patois translator, Carlton
Turner, and that the testimony prejudiced him as to the Hobbs Act robbery charge.
Because Sleugh did not object to the testimony at issue, we review for plain error.
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See United States v. Lloyd, 807 F.3d 1128, 1152 (9th Cir. 2015).
“The plain error standard requires the party challenging an instruction to
show that: (1) there was error; (2) the error was plain; (3) the error affected that
party’s substantial rights; and (4) the error seriously affected the fairness, integrity,
or public reputation of judicial proceedings.” Bearchild v. Cobban, 947 F.3d 1130,
1139 (9th Cir. 2020). A defendant satisfies the fourth prong, “undoubtedly the
hardest [prong] to meet,” Claiborne v. Blauser, 934 F.3d 885, 900 (9th Cir. 2019)
(alteration in original) (quoting Hoard v. Hartman, 904 F.3d 780, 791 (9th Cir.
2018)), when “[i]t is impossible to know whether the jury would have come to the
same conclusion” absent the error, United States v. Becerra, 939 F.3d 995, 1006
(9th Cir. 2019). Even if Sleugh could meet the first three requirements, he does
not meet the fourth.
At trial, Turner testified to his English translation of Sleugh’s recorded
conversation with his girlfriend, in which Sleugh spoke in a mix of Jamaican
Patois and English. The audio recording of the conversation and Turner’s written
translation were admitted into evidence. On appeal, Sleugh attacks various aspects
of Turner’s testimony. For example, Turner interpreted Sleugh’s instruction to his
girlfriend, originally in Jamaican Patois, that she “can’t write nothing to[o] serious
in the letters,” as meaning that she should not “write anything too serious in the
letters because the jail guards . . . read them,” even though neither Sleugh nor his
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girlfriend mentioned jail guards. Similarly, Turner interpreted Sleugh’s English
statement, “you need that at least you need the . . . to even send me all the way up
the river,” to mean that “the murder weapon wasn’t found, and they need that to
send him all the way up the river,” even though neither Sleugh nor his girlfriend
mentioned a weapon, and even though the statement was in English. In Sleugh’s
view, the clearest error arose from Turner’s testimony that it “sounded like [Sleugh
and someone else] were setting up some type of a robbery,” which derived from
Turner’s translation of Sleugh’s Jamaican Patois statement, “A no to dat deh
person a to im,” to the English statement, “[I didn’t text] that person, I text him.”
Even without Turner’s testimony on those points, the evidence clearly
supported the jury’s finding that Sleugh committed Hobbs Act robbery.
Shawndale Boyd, a co-defendant who pleaded guilty before trial, testified that
Sleugh admitted to him that he took the money and marijuana from the victim,
Vincent Muzac, and drove off after Sleugh and Muzac had an argument over the
marijuana’s quality that ended in Sleugh shooting Muzac, and that Sleugh later
displayed several pounds of the marijuana at his own house. Moreover, Sleugh
told his girlfriend in untranslated English: “Didn’t want to give it . . . fighting back
you know how it is.” The jury easily could have concluded on its own that this
statement referenced Sleugh’s act of robbing Muzac of the marijuana. Likewise,
the jury easily could have understood Sleugh’s other statements to mean what
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Turner testified they meant. The government introduced other evidence against
Sleugh as well, including cell site data and photographs of Sleugh with cash and
marijuana. Accordingly, because Sleugh fails to establish the fourth plain error
prong, we cannot conclude that the district court plainly erred when it admitted the
testimony. See United States v. Flores, 802 F.3d 1028, 1037–40 (9th Cir. 2015)
(holding that even where the prosecutor’s statements were plainly erroneous, the
defendant did not satisfy the third or fourth prongs of the plain error standard
because, “in the context of the trial as a whole, it is unlikely that the jury was
misled about the law or the facts”).
3. Sleugh also argues that the district court erred when it gave a
Pinkerton instruction for Counts 3 (Hobbs Act robbery), 4 (using or carrying a
firearm during or in furtherance of a drug trafficking crime or crime of violence),
and 5 (using a firearm during a drug trafficking crime or crime of violence and
causing murder) because permitting Pinkerton liability for offenses that are not the
objects of the charged conspiracy impermissibly lowers the mens rea required for
those offenses and contradicts common law. Not so. Pinkerton liability is
vicarious, which means that to convict Sleugh based on a Pinkerton theory, the
jury must have found that a co-conspirator had the mens rea for the substantive
offense. See Pinkerton v. United States, 328 U.S. 640, 646–47 (1946). Although
Pinkerton liability is subject to due process limits, see United States v. Bingham,
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653 F.3d 983, 997 (9th Cir. 2011), those limits are not approached here, as a
reasonable jury could have found that Sleugh played a major role in the conspiracy
and that robbery, use of a firearm, and murder were reasonably foreseeable during
a large-scale drug transaction. Sleugh’s common law argument fails because, as he
acknowledges, courts have long sustained Pinkerton liability in similar situations.
See United States v. Castaneda, 9 F.3d 761, 768 (9th Cir. 1993) (holding that
conspirators in a drug distribution network could be convicted for using a firearm
under a Pinkerton theory), overruled in part on other grounds by United States v.
Nordby, 225 F.3d 1053 (9th Cir. 2000).
4. Sleugh argues that Pinkerton liability does not apply to 18 U.S.C.
§ 924(c) because Congress addressed in § 924(o) the penalties for a person who
conspires to violate § 924(c). Sleugh concedes that we review this issue for plain
error. See United States v. Kaplan, 836 F.3d 1199, 1216–17 (9th Cir. 2016);
United States v. Alferahin, 433 F.3d 1148, 1154 & n.2 (9th Cir. 2006). Pinkerton
liability for a § 924(c) charge and liability under § 924(o) are not necessarily
inconsistent. They punish different conduct—Pinkerton liability in this
circumstance applies when a co-conspirator actually violates § 924(c), and
§ 924(o) applies when conspirators conspire to violate § 924(c)—and it is
reasonable for Pinkerton liability under § 924(c) to punish a conspirator more
severely when a firearm is actually used than § 924(o) liability punishes a
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conspirator who merely agrees to the use of a firearm. Compare 18 U.S.C.
§ 924(o) (“A person who conspires to commit an offense under subsection (c) shall
be imprisoned for not more than 20 years . . . .”), with Castaneda, 9 F.3d at 765(“Under the rule first pronounced in [Pinkerton], each conspirator is liable for the
criminal act of a co-conspirator if: 1) the substantive offense was committed in
furtherance of the conspiracy, and 2) the offense could reasonably have been
foreseen to be a necessary or natural consequence of the unlawful agreement.”).
Consequently, the district court did not plainly err in instructing that Pinkerton
liability could apply to § 924(c). The additional arguments that Sleugh makes for
the first time in his reply brief concerning Pinkerton liability for § 924(c) are
forfeited. See Avila v. L.A. Police Dep’t, 758 F.3d 1096, 1101 (9th Cir. 2014)
(“Arguments ‘not raised clearly and distinctly in the opening brief’ are waived.”
(quoting McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir 2009))).
5. Finally, Sleugh argues that the jury instruction that “the crime alleged
in Count Three, Robbery by Force, is a crime of violence” was plainly erroneous
because Hobbs Act robbery is not categorically a crime of violence under
§ 924(c)’s elements clause. But we recently held that Hobbs Act robbery is
categorically a crime of violence, see United States v. Dominguez, 954 F.3d 1251,
1261 (9th Cir. 2020) (“We reaffirm that Hobbs Act robbery is a crime of violence
under 18 U.S.C. § 924(c)(3)(A) . . . .”), so the instruction was not erroneous, let
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alone plainly so.
AFFIRMED.
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