Case Information
*1 Before: FERNANDEZ, PAEZ, and WATFORD, Circuit Judges.
*2
In а nine-count indictment, the government charged Defendant Damien Zepeda (“Zepeda”) with, inter alia , conspiraсy to commit assault, assault with a deadly weapon, and use of a firearm during a crime of violence. Following a jury [1] trial, he was convicted of all nine counts. On appeal, he argues that numerous errors at trial warrаnt reversal of his conspiracy conviction, and that there was insufficient evidence to convict him of conspiracy beyond a reasonable doubt. We [2] have jurisdiction 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
nоr 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
,
*3
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
court errеd in denying Zepeda’s motion for a mistrial on this basis. The
government concedes that the prosecutor’s “pеrjury” objection during Matthew’s
testimony was improper. Any error resulting from that improper objection was
harmless, however. First, the district court gave a prompt and proportional
curative instruction.
See United States v. Necoechea
,
In addition, the prosecutor’s pre-trial admonitions that Matthew should not
commit perjury were not misconduct. Matthеw’s contemporaneous letter to
Zepeda reveals that the prosecutor did not use coеrcive or intimidating tactics, but
sought to assure Matthew’s adherence to the conditions of his plea agreement.
See
United States v. Vavages
,
Zepeda next argues that the prosecutor misstated the evidence during closing
argument and causеd the jury falsely to infer a conspiratorial agreement between
him and his brothers. It is “not misconduct for the prosecutor to argue reasonable
inferences based on the record.”
United States v. Younger
,
Zepeda further argues that the district court erred in failing to conduct an evidentiary hearing when the prosecutor alerted her that а juror was asleep. “A single juror’s slumber . . . is not per se plain error.” United States v. Olano , 62 F.3d 1180, 1189 (9th Cir. 1995). Zepeda failed to demonstrate that thе juror’s inattention “deprived him of his right to an impartial jury and, more generally, to a fair trial” because the record reflects that the juror was asleep during key testimony that incriminated him. Id. (citation and internal quotation marks *5 omitted). The juror’s inattention therefore, if anything, was harmful to the government. Accordingly, the district court did not plainly err in failing to investigate further.
Finally, Zepedа argues that insufficient evidence supported his conspiracy
conviction. We disagree. Zepedа testified that he wanted to have his brothers with
him on the night of the crime; Jeremy testified that Zepeda was carrying а handgun
and a sawed off shotgun, and that “they were supposed to give me the shotgun”;
Jeremy testified that he saw Zepeda hand Matthew the shotgun before walking to
the door of the victims’ house; and, Matthew testified that Zepeda instructed him
on how to load the shotgun, and told him to fire a shot if something happened.
Drawing all inferences in the government’s favor, a reasonable juror could have
inferred a conspiratorial agreement from these facts, and found Zepeda guilty of
conspiracy beyond a reasonable doubt.
See United States v. Esquivel-Ortega
, 484
F.3d 1221, 1224 (9th Cir. 2007);
see also Jackson v. Virginia
,
We decline to review Zеpeda’s ineffective assistance of counsel claim on
direct appeal because the record is insufficiently developed.
See United States v.
McKenna
,
In light of our conclusions, cumulative error does not warrant reversal. See
Necoechea
,
AFFIRMED.
Notes
[*] This disрosition is not appropriate for publication and is not precedent except as providеd by 9th Cir. R. 36-3.
[1] The nine counts included: (1) conspiracy to commit assault with a dangerous weapon and assault resulting in seriоus bodily injury, in violation of 18 U.S.C. §§ 1153, 371, and 2; (2) assault resulting in serious bodily injury against Dallas Peters, in violation of 18 U.S.C. §§ 1153, 113(a)(6) and 2; (3) use of a firearm during a crime of violence as charged in count 2, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2; (4), (6), (8) assault with a dangerous weapon against Dallas Peters, Stephanie Aviles, and Jane Doe, in violation of 18 U.S.C. §§ 1153, 113(a)(3), and 2; and, (5), (7), (9) use of a firearm during the crimes of violence charged in counts 4, 6, and 8, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2.
[2] In an opinion filed concurrently with this Memorandum, wе reversed Zepeda’s convictions under counts 2 through 9 of the Indictment. Here, we address only Zepeda’s conspiracy conviction, under count 1 of the Indictment.