United States v. Jack Sexton

FILED
NOT FOR PUBLICATION DEC 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30171
Plaintiff - Appellee, D.C. No. 2:11-cr-00383-RSL-1
v.
MEMORANDUM*
JACK PERSHING SEXTON,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-30172
Plaintiff - Appellee, D.C. No. 2:11-cr-00383-RSL-2
v.
RONALD CLAUDE KETTELLS,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted November 17, 2014
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.
Jack Sexton and Ronald Kettells were convicted of three counts of armed bank
robbery, three counts of using a firearm during and in relation to a crime of violence,
and one count of conspiracy. On appeal, they challenge the denial of their motions
to sever counts, to suppress evidence, and to exclude evidence of drug use, and the
district court’s refusal to instruct the jury on the effect of drug use on witness
credibility. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
1. Regardless of whether it is viewed as invoking Rule 8 or Rule 14 of the
Federal Rules of Criminal Procedure, the motion to sever was properly denied.
a. The indictment alleges that the substantive counts were committed in
furtherance of a single, overarching conspiracy. The substantive counts were
therefore part of a “common scheme or plan” for joinder purposes. Fed. R. Crim. P.
8(a). The defendants do not challenge the sufficiency of the evidence supporting the
guilty verdict on the conspiracy count. Thus, the conspiracy count was not added in
bad faith. See United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir. 1982).
b. The defendants have not shown “‘clear,’ ‘manifest,’ or ‘undue’ prejudice
from the joint trial.” United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir. 1980)
(noting that establishing prejudice under Rule 14 requires more than a showing that
separate trials would have yielded “a better chance for acquittal”).
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2. The searches conducted on the property where the defendants lived were
within the scope of valid warrants.
a. The first warrant satisfied the particularity requirement even though the
address on it stated the name of the wrong town. The address was otherwise correct,
and the warrant listed other features of the property that permitted the searching
officers to confirm they were at the right location. Moreover, the property was under
surveillance when the defendants arrived in a car identified as the getaway vehicle
from a bank robbery, and the defendants admitted that they lived at the property.
There was therefore no “reasonable probability . . . that the officers [would]
mistakenly search another premise.” United States v. Mann, 389 F.3d 869, 876 (9th
Cir. 2004).
b. The district court did not clearly err in determining that any omissions from
the warrant application were at most negligent. See United States v. Castillo, 866 F.2d
1071, 1078 (9th Cir. 1988). Moreover, given the strength of the other evidence in the
application, inclusion of the omitted information would not have undermined probable
cause. See United States v. Reeves, 210 F.3d 1041, 1046 (9th Cir. 2000).
c. The first warrant authorized the search of the property where the defendants
lived, and the abandoned Chevrolet Cheyenne on the property was within the scope
of that authorization regardless of whether it is viewed as a vehicle or a structure. See
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United States v. Cannon, 264 F.3d 875, 880 (9th Cir. 2001) (“[T]he Fourth
Amendment is not violated by a search of the grounds or outbuildings within a
residence’s curtilage where a warrant authorizes a search of the residence.”); United
States v. Duque, 62 F.3d 1146, 1151 (9th Cir. 1995) (“[A] search warrant authorizing
a search of a particularly described premises may permit the search of vehicles owned
or controlled by the owner of, and found on, the premises.”).
d. It strains common sense to read the phrase, “to include all travel trailers and
buildings”—which appears after the address on the warrant—as excluding the
Cheyenne from the scope of the warrant. See United States v. Traylor, 656 F.2d 1326,
1331 (9th Cir. 1981).
e. The defendants make no arguments relating specifically to the second
warrant.
3. The district court did not abuse its discretion by allowing testimony
regarding the defendants’ drug use. Evidence of a defendant’s drug habit is
admissible to prove motive to commit a bank robbery. See United States v. Miranda,
986 F.2d 1283, 1285 (9th Cir. 1993) (collecting cases). Nor did the district court err
by failing to explicitly mention the Federal Rule of Evidence 403 balancing
requirement in admitting this evidence. Rule 403 is satisfied if, as here, it appears
from the record as a whole that the court was aware of its requirements and adequately
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considered the question of prejudice. United States v. Verduzco, 373 F.3d 1022, 1029
n.2 (9th Cir. 2004).
4. A “witness using drugs” instruction was not required because the drug
addiction of the testifying witness was disputed, defense counsel cross-examined the
witness on this subject, and the court gave a general instruction on witness credibility.
See United States v. Vgeri, 51 F.3d 876, 881 (9th Cir. 1995).
AFFIRMED.
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