United States v. Damien Zepeda

MEMORANDUM

In a nine-count indictment, the government charged Defendant Damien Zepeda (“Zepeda") with, inter alia, conspiracy to commit assault, assault -with a deadly weapon, and use of a firearm during a crime of violence. Following a jury trial, he was convicted of all nine counts. On appeal, he argues that numerous errors at trial warrant reversal of his conspiracy conviction, and that there was insufficient evidence to convict him of conspiracy beyond a reasonable doubt. We have juris diction under 18 U.S.C. § 1291 and we affirm.

Zepeda argues that the district court erred in failing to give a voluntary intoxication instruction at trial. We disagree. Because Zepeda neither presented nor relied upon a voluntary intoxication theory of defense, the district court’s failure to instruct the jury on that theory sua sponte was not plain error. See United States v. Bear, 439 F.3d 565, 568 (9th Cir.2006); United States v. Span, 970 F.2d 573, 578 (9th Cir.1992).

Zepeda next argues that the prosecutor committed misconduct when questioning his brother Matthew Zepeda (“Matthew”) regarding Matthew’s obligations to testify truthfully pursuant to his plea agreement, and that the district…