United States v. Wendell Kopp

FILED
NOT FOR PUBLICATION JAN 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30310
Plaintiff - Appellee, D.C. No. 1:08-cr-00153-RFC-1
v.
MEMORANDUM *
WENDELL DEAN KOPP,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted December 6, 2011
Seattle, Washington
Before: TASHIMA, McKEOWN, and TALLMAN, Circuit Judges.
Wendell Dean Kopp (“Kopp”) appeals his jury conviction for conspiracy to
possess with intent to distribute and distribution of methamphetamine, in violation
of 21 U.S.C. §§ 846 and 841(a)(1), possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
possession of firearms used in furtherance of the drug trafficking offenses, in
violation of 18 U.S.C. §§ 924(c)(1) and (2). We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
The district court did not err in denying Kopp’s motion to suppress. The
totality of the circumstances supported Kopp’s stop and detention. The stop was
justified by articulable facts which, combined with Officer Michael Gilluly’s
training and experience as a police officer, created a reasonable suspicion of
criminal activity. United States v. Johnson, 581 F.3d 994, 999 (9th Cir. 2009).
The district court’s decision to withhold certain pages of Kristy Cota’s
informant files after conducting an in camera review did not constitute clear error.
We have independently reviewed the two informant files and agree that the
withheld pages contained immaterial information that is unrelated to the alleged
conspiracy. United States v. Van Brandy, 726 F.2d 548, 551 (9th Cir. 1984).
There was no violation of Brady v. Maryland, 373 U.S. 83 (1963), or Giglio v.
United States, 405 U.S. 150 (1972).
The district court addressed the appropriate factors and correctly weighed
the potential for prejudice when it provided a limiting instruction and admitted
evidence under Federal Rule of Evidence 404(b) that Kopp was arrested for
possession of methamphetamine and drug paraphernalia approximately five weeks
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before the beginning of the charged conspiracy. United States v. Castillo, 181 F.3d
1129, 1134 (9th Cir. 1999).
The district court did not commit plain error in allowing DEA Special Agent
Daniel Dunlap to testify that the items seized from Kopp during the September and
November 2008 arrests were tools of the trade of a methamphetamine drug
distributor because the testimony neither affected Kopp’s substantial rights nor the
fairness, integrity, or public reputation of the trial. United States v.
Gomez-Norena, 908 F.2d 497, 500-02 (9th Cir. 1990). Agent Dunlap’s testimony
constituted a small portion of an otherwise strong case against Kopp.
Finally, the district court did not commit plain error in failing to instruct the
jury sua sponte that withdrawal is a defense to Pinkerton liability. Pinkerton v.
United States, 328 U.S. 640 (1946). Kopp had the initial burden of showing that
his actions warranted a withdrawal instruction, United States v. Lothian, 976 F.2d
1257, 1261 (9th Cir. 1992), and the evidence at trial did not indicate that Kopp
disavowed the unlawful goal of the conspiracy, affirmatively acted to defeat the
purpose of the conspiracy, or took definite, decisive, and positive steps to
disassociate himself from the conspiracy. United States v. Kilby, 443 F.3d 1135,
1139 (9th Cir. 2006). In light of Kopp’s failure to withdraw from the conspiracy
and the testimony at trial regarding the extensive nature of the drug distribution
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enterprise, Kopp’s substantial rights were not affected by the district court’s failure
to instruct the jury on the withdrawal defense.
AFFIRMED.
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