United States v. Sean Alexander ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50258
Plaintiff-Appellee, D.C. No.
2:16-cr-00471-RGK-3
v.
SEAN RONALDO ALEXANDER, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-50353
19-50308
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00471-RGK-2
FRANCISCO JUANTONIO HILT, AKA
Frebo,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted October 6, 2020
Pasadena, California
Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Sean Alexander and Francisco Hilt (“Defendants”) were convicted of multiple
charges for illegal sales of firearms. They appeal their convictions and the district
court’s denial of Hilt’s motion for a new trial. We affirm.
1. There was sufficient evidence for the jury to find that Alexander and Hilt
engaged in a “regular course of trade or business” of unlicensed dealing in firearms
under 18 U.S.C. §§ 922(a)(1)(A), 921(a)(21)(C). Alexander participated in four
sales from December 2015 to May 2016, and Hilt participated in five sales from
December 2015 to February 2016. In addition, Defendants expended considerable
effort aside from the enumerated transactions, such as obtaining the firearms,
making sales to others, and soliciting purchases from a confidential informant.
The government also presented evidence that Defendants were motivated by profit.
A rational jury considering this evidence could find that Alexander and Hilt
devoted time, attention, and labor to dealing in firearms as a regular course of
business.
2. We review for plain error Defendants’ claim that the government submitted
an improper legal theory to the jury in its closing argument by stating that “two
transactions are enough to hold them guilty.” Defendants’ argument fails. The
statement was part of the government’s argument that Defendants agreed to violate
18 U.S.C. § 922(a)(1)(A). See United States v. Moe, 781 F.3d 1120, 1124 (9th Cir.
2015) (“[A]n agreement to accomplish an illegal objective” is an element of
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conspiracy.). Accordingly, the statement was permissible in the context of the
conspiracy charge. Regardless, given the significant evidence of many firearm sales
over a period of months, any error in the closing argument was not prejudicial.
3. Section 922(a)(1)(A) is not void for vagueness as applied to Defendants.
“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Beckles v. United States, 137 S. Ct. 886, 892 (2017)
(quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). The statute was
sufficiently clear to give Defendants notice that their seven sales, conducted for
profit and over a number of months, fell within its proscription. In particular,
§ 922(a)(1)(A)’s reference to “engag[ing] in the business” of dealing in firearms is
not void for vagueness. The “use of terms such as ‘business’ and ‘dealing’” are
“well defined in the law.” United States v. Van Buren, 593 F.2d 125, 126 (9th Cir.
1979) (per curiam). The definition of “engaged in the business” at § 921(a)(21)(C),
enacted after Van Buren, only added clarity to § 922(a)(1)(A).
4. The district court did not abuse its discretion in denying Hilt’s pretrial motion
to compel the production of the confidential informant’s identity. United States v.
Napier, 436 F.3d 1133, 1136 (9th Cir. 2006). “To obtain disclosure of the identity
of a confidential informant, a defendant must show a need for the information.”
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United States v. Spires, 3 F.3d 1234, 1238 (9th Cir. 1993). “[M]ere suspicion that
information will prove helpful is insufficient . . . .” United States v. Wong, 886 F.2d
252, 256 (9th Cir. 1989). Hilt did not argue why the informant’s identity would
further his entrapment defense. In addition, the government disclosed the
informant’s criminal record, benefits provided, and communications with Hilt.
Under these circumstances, the district court acted within its discretion in ordering
the government to disclose the informant’s identity one week prior to trial should
the government decide to call him as a witness. Additionally, because Hilt
discovered, and the government confirmed, the informant’s identity only nine days
after the court’s denial of the motion to compel, any error did not prejudice Hilt’s
substantial rights. United States v. Amlani, 111 F.3d 705, 712 (9th Cir. 1997).
5. The government did not violate its obligations under Brady v. Maryland, 373
U.S. 83 (1963), by failing to produce the confidential informant’s name; the
transcripts and records of his testimony in state and federal criminal cases; and
evidence of the informant’s violence, drug addiction, or mental illness. To violate
Brady, the government’s failure to disclose evidence must be material, such that it
creates “a reasonable probability that the outcome would have been different” and
“that the favorable evidence could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.” Amado v. Gonzalez, 758
F.3d 1119, 1140 (9th Cir. 2014) (simplified).
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Setting aside the government’s arguments that it did not possess certain of the
information at the relevant time, Defendants failed to satisfy Brady’s materiality
requirement. Hilt primarily argues that the information would have supported his
entrapment defense, but he does not explain how. Hilt suggests that the fact that the
informant grew up in Hilt’s neighborhood, his history of working for law
enforcement, and law enforcement’s need for an informant in that neighborhood
show that the informant targeted or lured Hilt. But none of this evidence would
demonstrate inducement or a lack of predisposition as required for entrapment. See
United States v. Si, 343 F.3d 1116, 1125 (9th Cir. 2003). Likewise, Hilt fails to
connect either element of entrapment to the informant’s history of violence, drug
addiction, or mental illness, or to the informant’s testimony in the state case.1
Nor does the possible impeachment value of this material warrant reversing
Defendants’ convictions. In Hilt’s view, the informant’s unreliability is
demonstrated by the dismissal of the state case in which he testified and the
informant’s threat of violence to his girlfriend. But this evidence does not put the
whole case in a different light so as to undermine confidence in the verdict,
especially since each of the firearms transactions between the informant and
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For the same reason, this evidence would not support his motion to dismiss for
outrageous conduct. See United States v. McClelland, 72 F.3d 717, 721 (9th Cir.
1995) (Dismissals for outrageous conduct must meet “extremely high standard” and
be “grossly shocking and . . . outrageous,” such as where the government
“completely fabricat[ed] the crime.”).
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Defendants was video-recorded. Banks v. Dretke, 540 U.S. 668, 698–701 (2004)
(noting that suppressed evidence is not material where other evidence provided
“strong support” for conviction); Amado, 758 F.3d at 1140.
6. Defendants’ Sixth Amendment confrontation rights were not violated as a
result of the informant not testifying under his true name. At trial, the government
requested “to [not] distribute any documents with [the informant’s] actual name.”
The government also asked, “Is it fine if we refer to the confidential informant
simply as the confidential informant?” The district court did not plainly err in
granting the request.
Defendants argue that the district court’s decision violated the Confrontation
Clause. But the court’s order was limited to the government’s use of the informant’s
real name and did not correspondingly limit Defendants’ cross-examination. In any
case, Defendants failed to show any prejudice from their purported inability to use
the informant’s true name. Any suggestion that the jury would assume that
Defendants threatened the informant since the government did not use his name is
wholly speculative.
7. The indictment and jury instructions for Hilt’s felon-in-possession charges
under 18 U.S.C. § 922(g)(1) were not plainly erroneous. A violation of § 922(g)(1)
requires that the defendant know that he had been convicted of a crime punishable
by more than one year’s imprisonment at the time of his possession. See Rehaif v.
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United States, 139 S. Ct. 2191, 2194 (2019); United States v. Benamor, 937 F.3d
1182, 1186 (9th Cir. 2019). Though the omission of this knowledge element from
the indictment and jury instructions was erroneous, it did not affect Hilt’s substantial
rights. Benamor, 937 F.3d at 1188–89.
The government presented evidence that Hilt pled no contest in July 1999 to
violating California Health & Safety Code § 11359. Though he received only a
suspended sentence, 3 years’ probation, and 60 days in county jail, the violation was
a felony. Cal. Health & Safety Code § 11359 (1999) (requiring that one who violates
the section “shall be punished by imprisonment in the state prison”); Cal. Penal Code
§ 17 (1999) (“A felony is a crime which is punishable with death or by imprisonment
in the state prison.”). The record shows that he was informed of the drug offense’s
maximum penalty. See Cal. Penal Code § 18 (1999) (providing a penalty of 16
months, two years, or three years’ imprisonment). Hilt also admitted during a post-
arrest interview that he knew he could not possess guns because of his felony
conviction.
8. The jury instructions were not plainly erroneous as to Hilt’s convictions for
the sale of firearms to a prohibited person under 18 U.S.C. § 922(d)(1). The charges
against Hilt were predicated on his sales of firearms to the informant, who is
undisputedly a felon. While the jury instruction substituted “convicted felon” for
the statutory phrase “convicted of a crime punishable by imprisonment for a term
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exceeding one year,” 18 U.S.C. § 922(d)(1), any error did not affect Hilt’s substantial
rights. Hilt acknowledges that the informant told him that he was a felon. Such
information gave Hilt “reasonable cause to believe” the informant had been
convicted of a crime punishable by more than a year in prison, as required by the
statute. 18 U.S.C. § 922(d)(1); see also Felony, Random House Webster’s College
Dictionary 484 (1999) (defining felony as “an offense of graver character than a
misdemeanor and usu. punished by imprisonment for more than one year”).
9. Defendants argue that their convictions should be reversed for cumulative
error. But reversal on grounds of cumulative error is not available where “evidence
of guilt is otherwise overwhelming.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir.
2007). Each sale to the informant was video- and audio-recorded, and Defendants’
voices and faces were identifiable. The government also presented text messages
between Defendants and the informant detailing their planned transactions.
Accordingly, reversal for cumulative error is inappropriate.
10. Hilt’s 13-year sentence was not an abuse of discretion. See United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). He argues that he was learning
disabled, severely abused as a child, and extremely poor all of his life, while his prior
crimes were misdemeanors involving marijuana and traffic offenses. But the court
took those facts into account and imposed a below-Guidelines sentence. Cf. United
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States v. Amezcua–Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (explaining that a
sentence within the Guidelines range is usually reasonable).
* * *
For the foregoing reasons, the district court’s judgments are AFFIRMED.
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