United States v. Alexis Simon
665 F. App'x 597
| 9th Cir. | 2016Background
- Alexis Torres Simon and two co-defendants conspired with a confidential informant (Corona) to abduct a delivery-van driver and steal drugs and the van; Simon was arrested en route and possessed a firearm.
- A jury convicted Simon of: Hobbs Act conspiracy (18 U.S.C. § 1951), felon-in-possession (18 U.S.C. § 922(g)), conspiracy to commit theft from an interstate shipment (18 U.S.C. § 371), and three counts of theft from an interstate shipment (18 U.S.C. § 659).
- Record evidence included recordings and Corona’s testimony that Simon had and discussed a gun; Corona received substantial state-court benefits tied to his assistance.
- At trial the district court excluded certain proffered evidence (e.g., Facebook photos; testimony about prosecutor/agent statements) under Fed. R. Evid. 403 and limited questioning about FBI Guidelines compliance.
- The jury convicted; the district court applied a two-level leader/organizer enhancement under U.S.S.G. § 3B1.1(c) and used U.S.S.G. § 2X1.1 in sentencing; Simon received 192 months’ imprisonment.
- On appeal the Ninth Circuit affirmed all convictions and most rulings, deferring decision on one sentencing-guidelines issue.
Issues
| Issue | Simon's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for § 922(g) possession charge | Evidence insufficient; challenge not raised below | Record (recording, Corona’s testimony) supports possession; jury credibility governs | Affirmed — plain-error review; evidence sufficient for a reasonable jury to convict |
| Exclusion of evidence about Agent Christensen and Corona (FRE 403) / due process | Excluded evidence was material to bias/credibility and to FBI Guideline compliance; exclusion violated due process | Excluded material was of limited probative value and risked unfair prejudice, confusion, delay | Affirmed — no abuse of discretion; constitutional claim fails because defendant had other means to attack credibility |
| Failure to strike a juror for cause | Court should have struck juror for cause | Peremptory strike was used, precluding for-cause argument | Affirmed — peremptory strike bars an argument that juror should have been removed for cause |
| Prosecutor’s rebuttal comments (Griffin claim) | Two rebuttal comments impermissibly commented on defendant’s silence | Comments, in context, did not comment on silence; court cured one with instruction | Affirmed — no Griffin error; one claim reviewed for abuse of discretion, one for plain error |
| Admissibility/reliability of cell-site location testimony | Agent Easter’s testimony unreliable; improper foundation | Testimony was reliable and admissible; district court’s reliability finding proper | Affirmed — plain-error review yielded no reversible error |
| § 3B1.1(c) leadership enhancement | Enhancement improper; Simon not an organizer/leader | Simon directed logistics, recruited/coordinated co-defendant, instructed confidential informant | Affirmed — court properly applied two-level organizer/leader enhancement |
| Use of § 2X1.1 vs § 2B3.1 at sentencing | District court should have applied § 2B3.1 | Court applied § 2X1.1 which triggered additional enhancements | Issue deferred by the Ninth Circuit for future proceedings |
Key Cases Cited
- United States v. Sullivan, 797 F.3d 623 (9th Cir. 2015) (plain-error review discussed)
- United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005) (jury credibility determinations)
- United States v. Backman, 817 F.3d 662 (9th Cir. 2016) (abuse-of-discretion review of evidentiary exclusions)
- United States v. Bahamonde, 445 F.3d 1225 (9th Cir. 2006) (due process review of excluded defense evidence)
- Holmes v. South Carolina, 547 U.S. 319 (2006) (limits on exclusion of defense evidence; Rule 403 principles)
- United States v. Martinez-Salazar, 528 U.S. 304 (2000) (peremptory strike precludes later for-cause challenge)
- United States v. Stinson, 647 F.3d 1196 (9th Cir. 2011) (standards for reviewing prosecutorial comments)
- United States v. Doss, 630 F.3d 1181 (9th Cir. 2011) (Griffin and plain-error framework)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard)