United States v. Barbara Ross

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 29, 2021
• Docket: 20-50223
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 29 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50223

Plaintiff-Appellee, D.C. No. 3:19-cr-03350-W-1

v. MEMORANDUM* BARBARA L. ROSS,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding

Submitted November 18, 2021** Pasadena, California

Before: LINN,*** BYBEE, and BENNETT, Circuit Judges.

Appellant Barbara Ross appeals her jury conviction and sentence for assault

on a federal officer, in violation of 18 U.S.C. § 111(a)(1). She argues that (1) the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard Linn, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. district court erred by not instructing the jury that self defense to excessive force is

an affirmative defense, (2) remand is appropriate for an evidentiary hearing on

whether a government agent’s contact with the jury was prejudicial, (3) her trial

counsel was ineffective for failing to request a self-defense-to-excessive-force

instruction, and (4) her sentence of 18 months imprisonment and three years

supervised release is substantively unreasonable. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm the conviction and sentence.

1. We review the district court’s answer to Juror Question 1 for plain

error because defense counsel did not sufficiently object to the instruction to

preserve the issue on appeal. Fed. R. Crim. P. 30(d), 52(b); see United States v.

Anderson, 741 F.3d 938, 945 (9th Cir. 2013) (“An objection to an instruction on a

different ground is not sufficient to preserve de novo review.”). The district

court’s response was not plain error. “Plain error arises only in exceptional

circumstances where we find that the trial court’s decision affected substantive

rights and where it is ‘highly probable that the error materially affected the

verdict.’” United States v. Span, 970 F.2d 573, 577 (9th Cir. 1992) (quoting

United States v. Armstrong, 909 F.2d 1238, 1244 (9th Cir. 1990)). The district

court’s failure to instruct the jury on self-defense to excessive force is not plain

2 error where, as here, the defendant did not request an excessive force instruction or

rely on that theory of defense at trial. See Span, 970 F.2d at 578.

2. Similarly, we review for plain error Ross’s claim that an evidentiary

hearing is required to determine whether a government officer’s contact with a

juror during deliberations was prejudicial. See Puckett v. United States, 556 U.S.

129, 134–35 (2009). Defense counsel did not object to the contact or request an

evidentiary hearing at trial. Instead, counsel waited six months, until the

sentencing hearing, to raise the potential issue. We have set out a two-step process

for evaluating allegedly prejudicial jury contacts. First, “[w]hen a defendant

alleges improper contact between a juror and an outside party, the court asks . . .

whether the contact was ‘possibly prejudicial.’” Godoy v. Spearman, 861 F.3d

956, 962 (9th Cir. 2017) (en banc) (quoting Mattox v. United States, 246 U.S. 140,

150 (1892)). Second, if the contact is possibly prejudicial, the court should

presume prejudice and shift the burden to the government to establish that “the

contact was actually ‘harmless.’” Id. (quoting Remmer v. United States, 347 U.S.

227, 229 (1954)).

The district court heard Officer Perez’s recollection of the contact with

jurors. Perez explained that a juror asked him: “Do you guys get subpoenas?”

Perez said that he responded: “Yes, we get subpoenas.” And, that was “the extent

3 of the conversation that [Perez] remembered.” Nothing in Perez’s response

indicated that he spoke to a juror about “the matter pending before the jury.”

Remmer, 347 U.S. at 229. The district court did not commit plain error in finding

no “credible risk” of prejudice and inquiring no further into the contact. See

Godoy, 861 F.3d at 967.

3. We decline to hear Ross’s ineffective assistance of counsel claim on

direct appeal because the record is not sufficiently developed and her legal

representation was not so deficient that she was obviously denied her Sixth

Amendment right to counsel. See United States v. Rivera-Sanchez, 222 F.3d 1057,

1060 (9th Cir. 2000).

4. We review sentencing decisions for an abuse of discretion, whether or

not the sentence is inside the Sentencing Guidelines. United States v. Carty, 520

F.3d 984, 993 (9th Cir. 2008) (en banc). “In determining substantive

reasonableness, we are to consider the totality of the circumstances,” and we “may

not reverse just because we think a different sentence is appropriate.” Id. at 993.

The parties agreed that the Guideline imprisonment range was 18 to 24 months and

4 the Guideline supervised release range was 1 to 3 years.1 While the Guidelines are

advisory, “in the overwhelming majority of cases, a Guidelines sentence will fall

comfortably within the broad range of sentences that would be reasonable in the

particular circumstances.” Id. at 994. This does not represent one of the “rare”

cases, where the court should vacate a sentence on the grounds that it is

substantively unreasonable. United States v. Ressam, 679 F.3d 1069, 1087 (9th

Cir. 2012). The district court considered the Guideline range, the 18 U.S.C.

§ 3553(a) factors, and the parties’ arguments in concluding that 18 months

imprisonment with three years supervised release was sufficient but not greater

than necessary to reflect the seriousness of the offense and provide adequate

deterrence. The district court did not abuse its discretion.

AFFIRMED.

1 Ross’s appeal to her sentence is not moot because the supervised release portion could be affected if she prevails. See United States v. Allen, 434 F.3d 1166, 1170 (9th Cir. 2006); United States v. Verdin, 243 F.3d 1174, 1178 (9th Cir. 2001). 5