United States v. Christopher Graham , 644 F. App'x 795 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 18 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30205
Plaintiff - Appellee, D.C. No. 3:12-cr-00178-BR-1
v.
MEMORANDUM*
CHRISTOPHER ADIN GRAHAM,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted March 10, 2016**
Portland, Oregon
Before: FISHER, BERZON, and WATFORD, Circuit Judges.
1. The district court did not abuse its discretion in denying defendant
Christopher Graham’s request for a longer continuance.
*
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).
Page 2 of 3
Granting a longer continuance would have caused nontrivial inconvenience
to the witnesses and the court. By the time of defense counsel’s request, potential
witnesses’ flight and hotel reservations had already been made. In addition, an
insufficient number of jurors were available the week after the scheduled start date,
so any continuance longer than the few days the district court granted would have
required a substantial postponement.
A longer continuance also would have served limited utility. The
government did not call the victim’s mother to testify at trial, so additional time to
investigate any leads raised by her late-disclosed statement would have provided
minimal benefit. The district court’s decision, moreover, caused the defense no
more than negligible prejudice. The government did not use the recordings of
Graham’s recent calls from prison in its case. And the district court precluded the
government from calling its prison informant to the stand until the second week of
trial. This delay provided the defense sufficient time to prepare for cross-
examination, and defense counsel thoroughly impeached the informant using
information taken directly from the late-produced files. The defense also
impeached the victim’s credibility and used information from the late-disclosed
Law Enforcement Database System reports to call her testimony into question.
Furthermore, there was no apparent prejudice from the late disclosure of either the
Page 3 of 3
forensic analysis of Graham’s cell phone or the transcript of the full December 7,
2010, phone call to the police. In sum, Graham’s “general claim” that he was not
given an adequate opportunity to thoroughly analyze all of the late-produced
discovery is “insufficient to show the actual prejudice required to reverse a
conviction.” United States v. de Cruz, 82 F.3d 856, 861 (9th Cir. 1996).
2. The district court did not plainly err in calculating Graham’s Sentencing
Guidelines range. Section 3A1.3 calls for a two-level increase “[i]f a victim was
physically restrained in the course of the offense.” Under the Guidelines, the term
“‘[p]hysically restrained’ means the forcible restraint of the victim such as by
being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt. n.1(K). The jury heard
evidence that Graham locked his victim in the trunk of his car and drove her to a
location in order to coerce her into engaging in further commercial sex activity.
Such restraint was not necessary to the application of U.S.S.G. § 2G1.1, which sets
a Base Offense Level of 34 for Graham’s offense of conviction, sex trafficking
accomplished by force, fraud, or coercion under 18 U.S.C. § 1591(b)(1). The two
guidelines thus serve distinct purposes. There was no improper double counting.
See United States v. Smith, 719 F.3d 1120, 1125 (9th Cir. 2013); see also U.S.S.G.
§ 3A1.3 cmt. n.2.
AFFIRMED.