United States v. Curtis Tichenor

FILED
NOT FOR PUBLICATION FEB 10 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30227
Plaintiff - Appellee, D.C. No. 9:12-cr-00050-DLC-1
v.
MEMORANDUM*
CURTIS KEITH TICHENOR,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Submitted February 3, 2015**
Seattle Washington
Before: FISHER, BEA, and MURGUIA, Circuit Judges.
Curtis Keith Tichenor appeals from his convictions for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1), robbery in violation
of 18 U.S.C. § 1951(a) and brandishing a firearm in furtherance of a crime of
*
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).
violence in violation of 18 U.S.C. § 924(c)(1)(A). We have jurisdiction under 28
U.S.C. § 1291, and affirm.
1. We reject Tichenor’s argument that the felon-in-possession count was
misjoined with the robbery-related charges. See United States v. VonWillie, 59
F.3d 922, 929-30 (9th Cir. 1995) (joinder proper when the indictment charges the
defendant with being a felon in possession of the same weapons used in the
commission of other charged crimes and evidence overlaps).
2. Tichenor’s argument that the district court abused its discretion by refusing
to sever the felon-in-possession count fails because he cannot establish that the
joint trial was “manifestly prejudicial.” United States v. Lewis, 787 F.2d 1318,
1321 (9th Cir.), opinion amended on denial of reh’g, 798 F.2d 1250 (9th Cir.
1986); see VonWillie, 59 F.3d at 930. The prosecutor stipulated to the prior
conviction and did not present any additional evidence about the crime. Also, as
the district court observed, the evidence related to the felon-in-possession count
overlapped significantly with the robbery charges. Given the overlapping
evidence, the “burden on judicial resources that would have resulted from hearing
the charges and evidence against [Tichenor] in multiple trials outweighs any
limited prejudice that [Tichenor] may have experienced” by having the charges
jointly tried. United States v. Lopez, 477 F.3d 1110, 1117 (9th Cir. 2007).
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3. Tichenor argues that the district court erred by denying his motion for a
mistrial because the government, by showing a witness the gun during a pre-trial
meeting, “suggestively persuaded” the witness to identify the gun at trial as the
weapon used during the robbery. Before the allegedly suggestive meeting,
however, the witness had already described the gun in detail, and identified it in a
photograph.1 Tichenor therefore cannot show that the district court abused its
discretion by denying his motion for a mistrial. See Renico v. Lett, 559 U.S. 766,
774 (2010) (“[D]ecision to declare a mistrial is left to the sound discretion of the
judge, but the power ought to be used with the greatest caution, under urgent
circumstances, and for very plain and obvious causes.” (internal quotation marks
omitted)).
4. We also reject Tichenor’s contention that the district court abused its
discretion when it denied his motion for acquittal. Because Tichenor failed to
object to the admission of Kimes’s prior inconsistent statement (Defense Exhibit
1
Tichenor does not challenge the earlier photo identification. He also fails
to provide authority extending the suggestive suspect identification case law to
identifications of physical evidence. See Johnson v. Sublett, 63 F.3d 926, 931-32
(9th Cir. 1995) (“There is no authority holding that a defendant’s due process right
to reliable identification procedures extends beyond normal authenticity and
identification procedures for physical evidence offered by the prosecution.”).
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500), the jury was free to consider the evidence for any purpose, or reject it in its
entirety. See United States v. Foster, 711 F.2d 871, 877 (9th Cir. 1983).
5. Lastly, the district court did not abuse its discretion by refusing Tichenor’s
proposed addict instruction. The district court provided the jury with several
cautionary instructions regarding the witness’ credibility, including a general
credibility instruction, an immunity instruction, and an instruction cautioning the
jury about the witness’ prior felony conviction. Taken together, these instructions
adequately cautioned the jury about the witness’ trustworthiness. See United
States v. Burrows, 36 F.3d 875, 878 (9th Cir. 1994) (holding that an addict
instruction is not required where, as here, there was an adequate opportunity for the
adverse party to cross-examine the witness about her addiction and the court’s
reading of other cautionary instructions gave the jury an adequate basis to assess
the witness’ credibility).
AFFIRMED.
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