FILED

NOT FOR PUBLICATION AUG 05 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10097

Plaintiff-Appellee, D.C. No. 1:12-cr-00174-JMS-1

v.

MEMORANDUM*

JACOB DRUMMONDO-FARIAS,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding

Argued and Submitted June 9, 2015 Honolulu, Hawaii

Before: WARDLAW, BERZON, and OWENS, Circuit Judges.

Jacob Drummondo-Farias (“Drummondo”) appeals his conviction of

conspiracy to distribute and possess with intent to distribute methamphetamine, in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. The conspiracy and distribution counts were properly joined as “offenses

. . . of the same or similar character.” See Fed. R. Crim. P. 8(a); United States v.

Rousseau, 257 F.3d 925, 932 (9th Cir. 2001).1 The first count charged

Drummondo with conspiring to distribute methamphetamine in Hawaii, beginning

at an unknown date and ending in January of 2012. The second count charged

Appellant with distributing methamphetamine in Hawaii in December of 2010. In

light of these similarities, and because Rule 8 is to be “broadly construed in favor

of initial joinder,” id. at 573, joinder was not improper. See Rousseau, 257 F.3d at

932 (holding that two firearm offenses were “[c]learly” of a “same or similar

character” even though “the crimes involved different evidence, did not involve a

common scheme or plan,” and were separated by more than six months because

both counts charged “being a felon in possession of a firearm”); United States v.

Free, 841 F.2d 321, 324 n.1 (9th Cir. 1988) (“It is fairly clear in this case that,

although separated by time and involving different victims, the murder charge and

the assault charges are of the same or similar character.”); cf. United States v.

Satterfield, 548 F.2d 1341, 1344 (9th Cir. 1977) (Kennedy, J.) (“[R]ule 8(a)

1 Drummondo has not waived his Rule 8(a) misjoinder argument by failing to renew his motion to sever at the close of evidence: “While it is clear that a Rule 14 motion to sever must be renewed at the close of the evidence or it is waived, . . . there is no such requirement for a Rule 8 motion.” United States v. Terry, 911 F.2d 272, 277 (9th Cir. 1990).

2 permits joinder against one defendant of offenses ‘of the same or similar

character,’ even when those offenses arise out of wholly separate, unconnected

transactions . . . .”).

We have upheld joinder in similar circumstances. See, e.g., United States v.

Akana, 210 F. App’x 681, 682 (9th Cir. 2006) (upholding joinder of counts

separated by fifteen months charging (1) conspiracy to distribute

methamphetamine, and (2) possession of methamphetamine with intent to

distribute).2 And we have found no authority holding that distributing a controlled

2 Other courts have uniformly upheld joinder under these circumstances, as well. See, e.g., United States v. Melendez, 301 F.3d 27, 35-36 (1st Cir. 2002) (upholding joinder of counts separated by nearly two years charging (1) aiding and abetting distribution of cocaine base, and (2) possession of cocaine with intent to distribute); United States v. Turner, 93 F.3d 276, 283-84 (7th Cir. 1996) (upholding joinder of counts separated by more than fourteen months charging (1) conspiracy to possess methamphetamine, and (2) possession of methamphetamine with intent to distribute); United States v. Rodgers, 732 F.2d 625, 629-30 (8th Cir. 1984) (upholding joinder of counts separated by twenty months charging (1) distribution of cocaine, and (2) possession of cocaine with intent to distribute).

3 substance, and conspiring to distribute that same substance less than fourteen

months later, are not offenses of “the same or similar character” under Rule 8(a).3

Given the similarities between the charged crimes, the substance at issue,

and the location of the alleged conduct, the charges are linked by more than a

“vague thematic connection.” United States v. Jawara, 474 F.3d 565, 579 (9th Cir.

2006) (internal quotation marks omitted). These counts are not similar simply

because they involve drugs. See id. (disapproving the hypothetical joinder of a

charge against a pharmacist for selling unlawful amounts of pseudoephedrine over-

the-counter and a subsequent charge for purchasing cocaine). Rather, these counts

3 The dissent’s reliance on the temporal gap between the charges in this case is misplaced. The less than fourteen-month gap between the counts—which does nothing to lessen the other similarities between the charges, both of which involve distribution of the same drug in the same state by the same defendant—does not render these otherwise similar counts dissimilar. See, e.g., Akana, 210 F. App’x at 682 (upholding joinder of charges fifteen months apart). The dissent cites Free for the proposition that even shorter temporal gaps weigh against joinder, but in Free, we found it “fairly clear” that joinder was proper. 841 F.2d at 324 n.1. Nothing in our discussion in Free indicates that we would have reached a contrary conclusion had the temporal gap been longer.

4 are similar because they both relate to dealing methamphetamine in Hawaii within

a relatively short period of time.4

4 We need not discuss prejudice because we conclude there was no misjoinder, but we note our disagreement with the dissent’s characterization of the prosecutor’s charging decision. At oral argument, the government explained its decision as follows:

Government: Basically, after the first trial ended in a mistrial, we went back—obviously we were trying to improve our case in any way we could—going back and looking through DEA files, they found this one buy that had been made from a task force group from Mr. Drummondo that we were not aware of at the time of the first trial. Judge Wardlaw: Who was not aware of it, the prosecutors? Government: Correct. Judge Wardlaw: Well, I don’t understand. If it was worth prosecuting, why didn’t the DEA bring it to you in the first place? Government: Because our standard policy is we will not accept one buy cases. There are exceptions to that. But normally we expect— Judge Berzon: Not accept what cases? Government: One buy cases, meaning there have to be multiple buys to avoid issues of entrapment, to ensure credibility of the CI, if there is one, all of those sorts of issues. Because there had never been more than one buy, they never brought it to our office for consideration.

It is possible, as the dissent asserts, that the prosecution filed the distribution charge in order to improve its chances of securing a conviction on the conspiracy count. But the government never said the new charge was filed for this purpose. We see no reason to assume the prosecutor had such an illegitimate motive when it is also possible the prosecutor, upon discovering evidence that Drummondo committed multiple crimes, deviated from ordinary policy in a legitimate effort to increase the odds of securing a conviction for distribution so that Drummondo would not entirely evade punishment if the jury again failed to convict on the conspiracy charge. We note also that the district court instructed the jury to consider the charges separately, diminishing the risk of prejudice. See, e.g., United States v. Fiorillo, (continued...)

5 2. We assume, without deciding, that the district court abused its discretion

in precluding the defense from cross-examining Officer Thayne Costa about a prior

incident of untruthfulness, but we find the error harmless. See United States v.

Moran, 493 F.3d 1002, 1014 (9th Cir. 2007). Even absent Costa’s testimony, there

was ample evidence from which the jury could reasonably have concluded beyond

a reasonable doubt that Drummondo was guilty of the conspiracy charge. See

United States v. Edwards, 235 F.3d 1173, 1179 (9th Cir. 2000) (per curiam). Two

of Drummondo’s co-conspirators and another uncharged co-conspirator implicated

him as one of the leaders of the conspiracy. Circumstantial evidence—including

postal money orders, postal service records, phone records, and flight

records—corroborated these co-conspirators’ testimony. Moreover, several other

percipient law enforcement witnesses whose credibility was not in question

testified to many of the same facts reported by Costa. Therefore, undermining

Costa’s credibility did not go to the heart of the defense and, indeed, would have

done little if anything to bolster it. Moran, 493 F.3d at 1014. Accordingly, “it is

more probable than not that the error did not materially affect the verdict.” Id.

4 (...continued) 186 F.3d 1136, 1145 (9th Cir. 1999) (per curiam). That the jury in fact rendered a split verdict “shows that the jury followed the trial court’s instructions.” United States v. Alvarez, 358 F.3d 1194, 1206 (9th Cir. 2004).

6

AFFIRMED.

7

FILED

USA v. Drummondo-Farias, 14-10097 AUG 05 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BERZON, Circuit Judge, concurring in part and dissenting in part.

I agree with the majority that any error in precluding the defense from cross-

examining Costa was harmless, and therefore concur in Section 2 of the

memorandum disposition. However, I conclude that the conspiracy and

distribution counts were misjoined under Rule 8(a) and that the misjoinder actually

prejudiced Drummondo-Farias. I therefore respectfully dissent from Section 1.

1. Although “Rule 8 has been ‘broadly construed in favor of initial joinder,’”

United States v. Jawara, 474 F.3d 565, 573 (9th Cir. 2007) (quoting United States

v. Friedman, 445 F.2d 1076, 1082 (9th Cir. 1971)), the Rule 8 test is not “without

meaningful limits.” Id. at 579. Jawara identified six nonexhaustive factors,

quoted by the majority, to consider in assessing whether the charges in an

indictment were properly joined under that prong of Rule 8(a). In my view, the

enumerated Jawara elements, taken together, weigh against finding the charges are

the same or similar. (The government advances no factors other than those

enumerated in Jawara for consideration as to joinder.)

(1) The essential elements of the two crimes do not overlap. Although the

offenses are related, the conspiracy charge requires no overt act, United States v. Shabani, 513 U.S. 10, 11 (1994), and the distribution charge requires no

agreement. Thus, the elements factor may tilt (a bit) in favor of finding the charges

are “of the same or similar character,” but not strongly.

(2) The charges in Drummondo-Farias’ indictment are separated by nearly

fourteen months. I can find only one (unpublished) case in this Circuit approving

the joinder under the “same or similar character” prong of charges separated by a

period of fourteen months or more, United States v. Akana, 210 F. App’x 681, 682

(9th Cir. 2006) (unpublished). Two of the charges in that case alleged identical

statutory violations and therefore identical essential elements. Most of our cases

approving joinder of charges as “offenses . . . of the same or similar character”

either involve temporally overlapping charges, or temporal separations of

significantly shorter duration than the one in this case. We have also suggested that

even shorter temporal distances weigh against finding joinder was proper. See,

e.g., United States v. Free, 841 F.2d 321, 323, 324 n.1 (9th Cir. 1988). I therefore

conclude the temporal proximity factor weighs against finding the charges are of

the same or similar character.

(3) As to the third factor, “the likelihood and extent of evidentiary overlap”

between the charges, the indictment makes no suggestion that the evidence on the

two counts was likely to overlap. Additionally, the rather precise figures of

2 methamphetamine described in each count are markedly different, indicating that

the physical evidence would be proved by two separately seized batches of drugs.

This factor therefore also weighs against finding the charges are of the “same or

similar character.”

(4) As to the fourth factor, “the physical location of the acts,” the complaint

alleges that the conspiracy occurred “in the District of Hawaii and elsewhere,” and

that the distribution occurred “in the District of Hawaii.” The District covers the

entire state, comprised of seven inhabited islands. Also, as the conspiracy is

alleged also to have occurred “elsewhere,” the indictment indicates the physical

location of the acts is partly dissimilar. I therefore conclude this factor weighs

against finding that the crimes are of the same or similar character.

(5) As to the fifth factor, “modus operandi,” the indictment is silent as to the

modus operandi of either crime. I therefore conclude the modus operandi factor

weighs against finding the offenses are of the same or similar character. See

Jawara, 474 F.3d at 579

(6) As to the final factor, “the identity of the victims,” the indictment does

not identify any victims of either crime. I therefore conclude this factor weighs

against finding the offenses are “of the same or similar character.”

3 When so many of the factors Jawara identified as relevant to the “same or

similar character” inquiry weigh against such a finding, the face of the complaint

does not establish that the offenses are of the same or similar character. I therefore

conclude the counts were misjoined.

b. “A violation of Rule 8 ‘requires reversal only if the misjoinder results in

actual prejudice because it had a substantial and injurious effect or influence in

determining the jury’s verdict.’” Jawara, 474 F.3d at 579 (quoting Terry, 911 F.2d

at 277). In determining whether the misjoinder had a “‘substantial and injurious’

effect on the jury’s verdict,” id., a variety of factors are relevant, “including ‘the

overwhelming evidence of guilt shown,’ the provision of a ‘proper limiting

instruction . . . admonish[ing] the jury to consider each count . . . separately,’ and

the likelihood that evidence admitted on the misjoined count would have been

admissible in a separate trial as evidence of intent under Federal Rule of Evidence

404(b).” Id. (quoting United States v. Lane, 474 U.S. 438, 449 (1986)).

The evidence adduced at Drummondo-Farias’ second trial was certainly

sufficient for a reasonable juror to conclude beyond a reasonable doubt that he was

guilty of conspiracy, but it was not “overwhelming.” Lane, 474 U.S. at 450. The

cooperating witnesses had strong incentive to lie. The other evidence on the

conspiracy charge was primarily circumstantial. That the first trial of Count 1

4 ended in a mistrial also tends to suggest the evidence was not “overwhelming.” As

to the overlap in evidence, “it is generally ‘much more difficult for jurors to

compartmentalize damaging information about one defendant derived from joined

counts, than it is to compartmentalize evidence against separate defendants joined

for trial.’” Jawara, 474 F.3d at 581 (quoting See United States v. Lewis, 787 F.2d

1318, 1322 (9th Cir.) opinion amended on denial of reh’g, 798 F.2d 1250 (9th Cir.

1986)). Here, evidence admitted solely for Count 2–the tape recording of “Jake”

discussing methamphetamine purchases with Fua–could have enhanced the jury’s

impression of the defendant’s guilt of Count 1. If the conspiracy had been charged

separately, that audio recording would likely not have been admitted.

The split verdict is not dispositive of the prejudice question, because of the

possibility of an illicit compromise verdict. See United States v. Terry, 911 F.2d

272, 280 n.3 (1990) (quoting United States v. Grey Bear, 863 F.2d 572, 579 (8th

Cir. 1988)) (some alterations in original); see also Lewis, 787 F.2d at 1322 (noting

psychological studies suggesting that evidence of a weak charge can improperly

enhance the jury’s perception of the strength of the evidence of another charge).

Further, the evidence adduced regarding the distribution charge was

significantly “more extensive, and thus more damaging, than that which [c]ould

[have] be[en] adduced to establish a prior crime as proof of such matters as motive

5 or intent” in a separate second trial of the conspiracy charge. Satterfield, 548 F.2d

at 1346. The bulk of the 180 pages of testimony introduced in support of Count 2

would not have been admissible under Rule 404(b), because it would have been

either unnecessarily cumulative or prejudicial or both.

Finally, the government added Count 2 after the first trial ended in a hung

jury, because “obviously, we were trying to improve our case any way we could;”

after “looking through DEA files, [we] found this one buy [in 2010] by . . . Mr.

Drummondo,” which was then added to the indictment, despite a policy of not

prosecuting “one buy” cases. In other words, the government joined the

distribution charge to improve its chances of prevailing on the conspiracy charge.

Joinder did not serve judicial economy here. It only served to prejudice the

defendant by presenting the jury with the temptation of an illicit compromise

verdict. I therefore respectfully dissent.

6