United States v. Damien Zepeda
506 F. App'x 536
9th Cir.2013Background
- Nine-count indictment charging Zepeda with conspiracy to commit assault, assault with a deadly weapon, and firearm use during a crime of violence; jury convicted on all counts; on appeal, challenged conspiracy conviction and trial errors; jurisdiction under 18 U.S.C. § 1291; panel affirmed.
- Zepeda argued for a voluntary intoxication instruction; district court allegedly did not sua sponte give it; court rejected plain-error view.
- Prosecutor’s conduct during a witness’s testimony (perjury objection) and related mistrial motion; district court issued curative instruction; government’s witnesses largely favored the government.
- Prosecutor’s closing argument allegedly misstated evidence by implying a conspiratorial agreement not supported by testimony; court found no prejudicial plain error given remaining evidence.
- Issue also addressed whether juror asleep during trial required further investigation; court held no plain error; insufficient evidence claim for conspiracy was ultimately rejected, propping up the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether voluntary intoxication instruction was required | Zepeda sought a voluntary intoxication defense | District court failed to instruct sua sponte | Not plain error; no reliance on voluntary intoxication presented |
| Prosecutor misconduct during witness testimony | Perjury objection improper; mistrial warranted | Mistrial denial appropriate | Harmless error; curative instruction mitigated impact |
| Closing argument misstatement about conspiracy | Statement implied a conspiratorial agreement | No proper basis in testimony; prejudicial | Not plain error given substantial corroborating evidence |
| Juror asleep; need for evidentiary hearing | Slumber could prejudice fair trial | Investigate potential bias | No plain error; inattention unlikely to deprive right to impartial jury |
| Sufficiency of evidence for conspiracy conviction | Evidence insufficient to prove conspiracy beyond reasonable doubt | Conspiratorial conduct shown by multiple witnesses | Sufficient evidence; reasonable juror could infer conspiracy beyond reasonable doubt |
Key Cases Cited
- United States v. Bear, 439 F.3d 565 (9th Cir. 2006) (voluntary intoxication instruction not plain error when not argued)
- United States v. Span, 970 F.2d 573 (9th Cir. 1992) (support for standard on sua sponte instructions)
- United States v. Necoechea, 986 F.2d 1273 (9th Cir. 1993) (curative instructions in response to misconduct)
- United States v. Parks, 285 F.3d 1133 (9th Cir. 2002) (curve for evaluating prosecutorial misconduct)
- United States v. Sullivan, 522 F.3d 967 (9th Cir. 2008) (context for harmless error review post-mraud)
- United States v. Blueford, 312 F.3d 962 (9th Cir. 2002) (postverdict credibility and evidence assessment)
- United States v. Olano, 62 F.3d 1180 (9th Cir. 1995) (single juror’s slumber not per se plain error)
- United States v. Esquivel-Ortega, 484 F.3d 1221 (9th Cir. 2007) (standard for reviewing conspiracy sufficiency)
- Jackson v. Virginia, 443 U.S. 307 (1980) (sufficiency review for jury verdicts)
- United States v. Sanchez-Mata, 925 F.2d 1166 (9th Cir. 1991) (knowing participation in conspiracy requires only slight connection)