NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50037

Plaintiff-Appellee, D.C. No. 3:17-cr-03330-MMA-1 v.

MAXWELL JOSEPH GAFFNEY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Argued and Submitted October 5, 2021 Pasadena, California

Before: GRABER and CHRISTEN, Circuit Judges, and SEEBORG,** District Judge.

Maxwell Gaffney appeals his conviction for distribution of heroin resulting

in death in violation of 21 U.S.C. § 841(b)(1)(C). We have jurisdiction under 28

U.S.C. § 1291. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. 1. The district court did not err in declining to instruct the jury that

proximate cause was required to convict Gaffney. We review de novo whether an

instruction omitted or misstated an element of the charged offense. United States v.

Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010). “[P]roximate cause is not a required

element for conviction and sentencing under § 841(b)(1)(C).” United States v.

Houston, 406 F.3d 1121, 1124–25 (9th Cir. 2005). The Supreme Court’s decision

in Burrage v. United States, 571 U.S. 204 (2014), holding that but-for causation is

required, did not call into question the holding or reasoning in Houston. See United

States v. Gonzalez, 906 F.3d 784, 799 (9th Cir. 2018).

2. The district did not err in declining to give Gaffney’s proposed jury

instructions concerning his theory of defense. We review de novo “[w]hether the

other instructions adequately cover the theory of defense.” United States v. Del

Muro, 87 F.3d 1078, 1081 (9th Cir. 1996). Gaffney’s proposed instructions either

were repetitive of instructions given by the court or misstated the law. See id.;

United States v. George, 420 F.3d 991, 1000 (9th Cir. 2005) (holding that a

defendant “is not entitled to an instruction that misstates the law”).

3. The district court did not err in admitting images of Facebook messages

between Gaffney and another heroin purchaser. We review evidentiary rulings for

abuse of discretion. United States v. Whittemore, 776 F.3d 1074, 1077 (9th Cir.

2015). The text messages were relevant, probative, and properly authenticated, and

2 they were not inadmissible hearsay. As the messages were similar to the ones

between Gaffney and the decedent Kyle Rodriguez, they were relevant to

Gaffney’s knowledge, intent, and lack of mistake concerning the sale of heroin to

Rodriguez. See Fed. R. Evid. 401 (“Evidence is relevant if . . . it has any tendency

to make a fact more or less probable than it would be without the evidence[.]”);

Fed. R. Evid. 404(b)(2). Given the relevance of the messages, any prejudicial

effect did not “substantially outweigh[]” their probative value. Fed. R. Evid. 403.

The messages were properly authenticated because, among other reasons, the

phone number used by the account holder “Max Gaffney” in the messages was

Gaffney’s phone number. See Fed. R. Evid. 901(a).

Additionally, non-constitutional errors in evidentiary rulings are subject to

harmless error review. United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir.

2002). The messages between Gaffney and the other purchaser only went to the

elements of whether Gaffney sold heroin to Rodriguez and whether he knew what

he sold was heroin. The government provided other evidence of these elements at

trial, including the messages between Gaffney and Rodriguez, and drug

paraphernalia found in Gaffney’s home. Even if the district court erred in admitting

the messages between Gaffney and the other purchaser, “it is more probable than

not that the error did not materially affect the verdict.” Id. (internal quotation

marks and citation omitted). Finally, the messages sent to Gaffney were admissible

3 as non-hearsay evidence because they were admitted to show their effect on

Gaffney, not for their truth. See Fed. R. Evid. 801(c)(2).

4. Sufficient evidence supports the verdict. Gaffney argues that there was

insufficient evidence that Rodriguez had lethal levels of heroin in his system and

that the heroin Rodriguez used when he overdosed must have been supplied by

someone other than Gaffney. Multiple experts, however, testified that Rodriguez

would not have died but for the heroin. The case agent who reviewed the contents

of Rodriguez’s phone testified that the only messages in which Rodriguez

successfully arranged to buy heroin close to the date of his death were the ones

with Gaffney. Further, the government also presented evidence that Rodriguez did

not use heroin earlier in the evening before his overdose at home. Friends and

family testified that Rodriguez did not appear to be on drugs earlier in the day, and

that Rodriguez ate a large meal on his way home, which an expert opined he would

not have been able to eat if he had already used heroin that evening. Viewing the

evidence “in the light most favorable for the prosecution . . . [a] rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc)

(internal quotation marks and citation omitted).

5. The district court did not abuse its discretion in denying Gaffney’s motion

for a new trial. See United States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011)

4 (reviewing for abuse of discretion the denial of a motion for a new trial). Although

the standard governing motions for a new trial is “much broader” than the one

governing motions for acquittal, United States v. Kellington, 217 F.3d 1084, 1097

(9th Cir. 2000) (quoting United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d

1206, 1211 (9th Cir. 1992)), this case is not an “exceptional case[] in which the

evidence preponderates heavily against the verdict,” United States v. Pimentel, 654

F.2d 538, 545 (9th Cir. 1981) (internal quotation marks and citation omitted).

Instead, the government provided significant evidence to support each of the

elements of the offense. Further, Gaffney argues that his prosecution and

conviction were unfair given his lack of prior involvement in Rodriguez’s battle

with addiction. This argument, however, concerns Congress’s design of the statute,

not a lack of evidence to support the conviction.

AFFIRMED.

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