United States v. Busane

218 F. App'x 633

Opinion

MEMORANDUM

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1. The district court instructed the jury on all the elements of Busane’s defense that she lacked the requisite knowledge. Because Valtierra’s motivation was not an element of the defense, the district judge did not err in failing to instruct the jury thereon. United States v. Romero-Avila, 210 F.3d 1017, 1023 (9th Cir.2000) (de novo review). Nor did the district judge abuse his discretion in refusing to use the exact language suggested by Busane. United States v. Shipsey, 363 F.3d 962, 966 n. 3 (9th Cir.2004).

2. The district court found that Busane didn’t meet the fifth prong of U.S.S.G. § 5C1.2 because she didn’t provide information about the crime; Busane does not dispute this finding. The district court thus didn’t err in refusing to grant a safety valve reduction. See United States v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir.2003) (application of guidelines to facts is reviewed de novo).

3. Even if the prosecutor’s closing argument constituted misconduct, which is doubtful, such misconduct didn’t deprive Busane of a fair trial and any error was harmless. See United States v. Weatherspoon, 410 F.3d 1142, 1150-51 (9th Cir. 2005) (quoting United States v. Hinton, 31 F.3d 817, 824 (9th Cir.1994)); United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir.1988) (mistrial only warranted where “the misconduct deprives the defendant of a fair trial”).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.