United States v. Mark Randall

FILED
NOT FOR PUBLICATION JUN 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30243
Plaintiff - Appellee, D.C. No. 3:09-cr-05466-RJB-4
v.
MEMORANDUM*
MARK RANDALL,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted May 5, 2011
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Mark Randall appeals his jury conviction and sentence for conspiracy to
commit an offense against the United States (18 U.S.C. § 371), damage to property
of the United States (18 U.S.C. §§ 1361 and 2), and theft of government property
(18 U.S.C. §§ 641 and 2), in connection with the cutting of two maple trees from
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Olympic National Forest. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
First, there was sufficient evidence adduced at trial to support Randall’s
conviction of conspiracy to damage and steal federal property. See United States v.
Sullivan, 522 F.3d 967, 976 (9th Cir. 2008) (holding that a conspiracy conviction
requires “1) an agreement to engage in criminal activity, 2) one or more overt acts
taken to implement the agreement, and 3) the requisite intent to commit the
substantive crime” (internal quotation marks omitted)). While Randall correctly
contends that a buyer-seller relationship alone is insufficient to establish a
conspiracy to distribute a stolen item, there is sufficient evidence to support the
jury’s finding that Randall was more than a mere buyer of stolen timber. Randall
explicitly and implicitly agreed to lend his harvesting expertise, permits, and
connections to the criminal enterprise. In doing so, he completed a number of overt
acts, including marking a fallen tree for proper cutting and contacting Faith Farm
to allow the three co-defendants to use his permit. Randall also acted with the
intent to damage a tree when he entered the Olympic National Forest and marked it
for cutting, and with the intent to steal when he permitted his co-defendants to use
his permit to cut the wood. Since there was sufficient evidence to support the
conspiracy conviction, the district court did not plainly err in submitting the
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Pinkerton instruction to the jury. See Pinkerton v. United States, 328 U.S. 640(1946).
Second, the district court did not plainly err in submitting a deliberate
ignorance or willful blindness instruction as part of the instruction on acting
“knowingly.” See United States v. Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en
banc). While Randall contends that the Jewell instruction infected the jury’s
understanding of different state of mind requirements for other crimes, such as 18
U.S.C. § 1361’s willfulness requirement, the jury was also correctly instructed on
“willfully.” There was no plain error. See United States v. Heredia, 483 F.3d 913,
923–24 (9th Cir. 2007) (en banc). Moreover, this court has previously upheld the
use of a Jewell instruction in a factually similar case. See United States v.
Henderson, 721 F.2d 276, 278–79 (9th Cir. 1983) (upholding the submission of a
Jewell instruction where the defendant contended that he believed that the timber
was on his own property).
Lastly, the district court did not clearly err in imposing a two-level
sentencing enhancement based on Randall’s role in the conspiracy. The two-level
aggravating role enhancement applies “[i]f the defendant was an organizer, leader,
manager, or supervisor in any criminal activity.” U.S.S.G. § 3B1.1(c). Evidence
that Randall supervised at least one other participant is sufficient under U.S.S.G.
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§ 3B1.1(c). Here, Randall directed his three co-defendants on how to properly cut
fallen trees, he went to the cutting site to inspect the second tree and mark it for
cutting, directed his co-defendants on how best to profit off the wood, and directed
them to use his permit at Faith Farm. See United States v. Garro, 517 F.3d 1163,
1165 (9th Cir. 2008).
The conviction and sentence are AFFIRMED.
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