FILED

NOT FOR PUBLICATION

JUN 22 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30237

Plaintiff-Appellee, D.C. No. 2:15-cr-00199-RAJ-1 v.

BRIAN H. JONES, Sr., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted June 4, 2018 Seattle, Washington

Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,** District Judge.

1. Sufficiency of the Evidence. There was sufficient evidence to convict

Jones of Count 7, possessing a firearm in furtherance of a crime of violence.

Because Jones did not move for a judgment of acquittal, “we review under a more

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. rigorous standard of review for plain error to prevent a ‘miscarriage of justice.’”

United States v. Roston, 986 F.2d 1287, 1289 (9th Cir. 1993) (quoting United

States v. Curtis, 568 F.2d 643, 647 (9th Cir. 1978)). First, the statute does not

require the Government prove Jones possessed a specific firearm, but, rather, any

firearm. See 18 U.S.C. § 924(c)(1)(A) (requiring that “any person who, during and

in relation to any crime of violence . . . shall, in addition to the punishment

provided for such crime of violence . . . (ii) if the firearm is brandished, be

sentenced to a term of imprisonment of not less than 7 years” (emphasis added)).

Therefore, any claim there was insufficient evidence, because there was varying

evidence about the specific model and type of the pistol, is unavailing. Second,

Williams affirmatively testified that Jones brandished a firearm during the

December 25, 2015 assaults. Therefore, under the plain error standard of review,

there is no question “any rational trier of fact could have found” that Jones

possessed a firearm when he committed the assaults charged in Counts 5 and 6.

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

2 2. Severing. Jones’s argument that the district court abused its discretion by

denying his motion to sever Counts 1, 2, and 3 from Counts 5, 6, and 7 is waived.1

“It is well settled that the motion to sever ‘must be renewed at the close of

evidence or it is waived.’” United States v. Alvarez, 358 F.3d 1194, 1206 (9th Cir.

2004) (quoting United States v. Restrepo, 930 F.2d 705, 711 (9th Cir. 1991)).

Jones moved before trial to sever but did not renew his motion at the close of

evidence. Further, there is no evidence that Jones “diligently pursued severance or

that renewing the motion would have been an unnecessary formality.” United

States v. Sullivan, 522 F.3d 967, 1008 (9th Cir. 2008) (quoting United States v.

Decoud, 456 F.3d 996, 1008 (9th Cir. 2006)).

3. Grand Jury Testimony. The district court did not abuse its discretion by

admitting Medina’s grand jury testimony. “We have expressly recognized that the

foundational prerequisites of [Federal Rule of Evidence] 613(b) require only that

the witness be permitted-at some point-to explain or deny the prior inconsistent

statement.” United States v. Young, 86 F.3d 944, 949 (9th Cir. 1996) (emphasis

added); see also Fed. R. Evid. 613(b), Advisory Committee Note (noting “no

1 The Government argues that the counts were properly joined. However, Jones has raised no such argument on appeal. Therefore, any argument that the counts were improperly joined is also waived. Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). 3 specification of any particular time or sequence” for providing the witness the

“opportunity to explain”). Jones had the opportunity to cross examine Medina on

the statements after the introduction of the grand jury testimony and did so. This

was sufficient and the district court did not abuse its discretion by allowing

Medina’s grand jury testimony to be admitted.

4. Statements to Medical Providers. The district court did not abuse its

discretion by admitting the statements Medina made to medical treatment

providers. Where statements are made for the purpose of medical diagnosis or

treatment, statements made to medical providers (identifying the abuser) are

admissible. United States v. Kootswatewa, 885 F.3d 1209, 1212-13 (9th Cir. 2018)

(holding “[t]he declarant’s selfish interest in obtaining appropriate medical care

renders statements made for purposes of diagnosis or treatment inherently

trustworthy”). Both medical treatment providers testified that knowing the identity

of the attacker and the contours of the incident were important for Medina’s

treatment, and Jones provided no contrary evidence.

5. Statement to Law Enforcement. The district court did not abuse its

discretion by admitting Medina’s statement to law enforcement as an excited

utterance, because she “was under the stress of excitement” of the earlier attack

when she arrived at the police station. Fed. R. Evid. 803(2). Rule 803(2) excludes

4 from the rule against hearsay statements “relating to a startling event or condition,

made while the declarant was under the stress of excitement that it caused.” Here,

Medina testified that Jones and her fought from 2:00 a.m. to 6:00 a.m., Jones

forced her to accompany him to try and buy a gun (approximately 7:30 a.m. to 8:30

or 9:00 a.m.), she left at her first opportunity (after Jones passed out), and she went

straight to the tribal police (arriving about 9:00 a.m.).

6. Impeachment with Prior Police Report. Jones waived his argument that

the district court improperly allowed the prosecution to impeach Medina with her

prior report to tribal police by failing to argue the statements were improperly

admitted under Rule 613(b). Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)

(“[A]rguments not raised by a party in its opening brief are deemed waived.”).

Jones instead argues that the district court abused its discretion by allowing the

statements under Rule 801(d)(1)(A). However, the statements were not offered

under Rule 801, rather, the record indicates the Government proffered the

statements as impeachment evidence. which would be admitted under Rule 613(b).

7. Cross Examination of Ramos. Jones abandoned his argument that the

district court improperly limited Jones’s cross examination of Ramos by not

arguing that the district court abused its discretion under Rule 403. Crime Justice

& Am., Inc. v. Honea, 876 F.3d 966, 978 (9th Cir. 2017) (“Issues raised in a brief

5 which are not supported by argument are deemed abandoned” (quoting Leer v.

Murphy, 844 F.2d 628, 634 (9th Cir. 1988))). Rule 609 provides that when

“attacking a witness’s character for truthfulness by evidence of a criminal

conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by

death or by imprisonment for more than one year, the evidence (A) must be

admitted, subject to Rule 403.” Jones notes that the convictions are subject to a

Rule 403 determination, but only argues that the district court abused its discretion

by not following the mandatory “must” language in Rule 609.

8. Cross Examination of Williams. The district court did not abuse its

discretion by limiting Williams’s cross examination and, in the process, did not

infringe on Jones’s “fundamental right to present a defense.” United States v.

McCourt, 925 F.2d 1229, 1236 n.12 (9th Cir. 1991). Jones does not specifically

argue under what rule Williams’s tribal court misdemeanor domestic violence

convictions should have been admitted, and affirmatively states that they were “not

offered under [Rule] 609.” Therefore, we construe Jones’s argument to be that the

convictions should have been admissible under Rule 404(b) as substantive

evidence. Jones proffered the evidence to “corroborate[] Medina’s testimony that

she was fearful of [Williams], and that he was both threatening and controlling of

her.” In other words, it was offered to prove that Williams had indeed acted a

6 certain way. Such evidence is improper under Rule 404(b). McCourt, 925 F.2d at

1235-36 (holding “[e]vidence of ‘other crimes, wrongs, or acts,’ no matter by

whom offered, is not admissible for the purpose of proving propensity or

conforming conduct” (quoting Fed. R. Evid. 404(b)). Regardless, Jones was able to

introduce the fact that Williams had been “physical” with Medina in the past, and

Williams testified he had admitted to the conduct “because [he] wanted to stay out

of jail.” This was sufficient for Jones to argue that Medina had initially provided

false reports because she was afraid of Williams.

9. Vouching. First, it was not plain error for the prosecutor to state that she

“th[ought] all the facts show you here that if you agree with what [Medina] has

testified to, what [Williams] has testified to, about what happened on Christmas

Day, you will find that the defendant possessed a firearm in furtherance of a crime

of violence on Christmas Day 2014.” See United States v. Flores, 802 F.3d 1028,

1034 (9th Cir. 2015). There was no indication of “extra-record” knowledge; the

prosecutor argued for the jury to convict Jones for Count 7 by referencing the

evidence supporting that count. Id. at 1040 (quoting United States v. Ruiz, 710 F.3d

1077, 1085 (9th Cir. 2013)). Second, it was not improper for the prosecutor to use

the phrase “[Medina]’s truth” to argue one version of Medina’s testimony was true

and the other was not. United States v. Necoechea, 986 F.2d 1273, 1279 (9th Cir.

7 1993) (holding it was proper for a prosecutor to state “I submit to you that she’s

telling the truth”); United States v. Preston, 873 F.3d 829, 844 (9th Cir. 2017)

(holding it was improper for the prosecutor to refer to a witness’s testimony as “the

truth”). Finally, even if the prosecutor improperly stated that she “d[idn’t] think

[Williams’s] a man who could orchestrate a scheme as to what he’s going to do

next week, much less orchestrate a scheme were he directs [Medina],” the district

court cured the statement. Thus, any error was harmless. Flores, 802 F.3d at 1034.

10. Double Jeopardy. The district court did not err by denying Jones’s

motion to dismiss the indictment on double jeopardy grounds. “[U]nder what is

known as the dual-sovereignty doctrine, a single act gives rise to distinct

offenses—and thus may subject a person to successive prosecutions—if it violates

the laws of separate sovereigns.” Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863,

1867 (2016). Indian tribes have retained sovereignty to prosecute their own

members. United States v. Wheeler, 435 U.S. 313, 329-30 (1978). Therefore,

8 because Jones was initially prosecuted by the tribal government under its sovereign

power, Jones’s right against double jeopardy was not violated.2

AFFIRMED.

2 While Jones alleges that his tribe and the federal government colluded in his two prosecutions, he has merely highlighted the fact that the tribal prosecutor entered an appearance in his federal prosecution. This falls far short of the type of prosecutorial “commandeer[ing]” necessary to overcome the dual-sovereignty doctrine. See United States v. Zone, 403 F.3d 1101, 1104-05 (9th Cir. 2005). 9