United States v. Douglas Farrar, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 24, 2022
• Docket: 19-10122
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 24 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 19-10122 Plaintiff-Appellee, D.C. No. 1:18-cr-00055-HG-1

v. MEMORANDUM* DOUGLAS SCOTT KA FARRAR, Jr., AKA Douglas S. K. Farrar, Jr., Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, Senior District Judge, Presiding

Argued and Submitted February 4, 2021 Honolulu, Hawaii

Before: CLIFTON, R. NELSON, and COLLINS, Circuit Judges.

Douglas Farrar, Jr. (“Farrar”) appeals his conviction for conspiring to

distribute methamphetamine and cocaine with his father, Douglas Farrar, Sr.

(“Farrar Sr.”), and Stephen Shigemoto, both of whom were previously convicted

for their respective roles in the conspiracy. He also challenges the 240-month

sentence imposed by the district court. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Farrar argues that the jury was improperly allowed to convict him of a

different, broader conspiracy than the one alleged in the indictment. We disagree.

Viewed in the light most favorable to the Government, the trial evidence

showed that Farrar was involved in four trips that Shigemoto took from Hawaii to

Los Angeles to purchase, package, and ship drugs back to Hawaii. During the first

two trips, in October 2013 and May 2014, Farrar taught Shigemoto the process of

buying and packaging the drugs. Shigemoto did not meet with Farrar during the

third and fourth trips, in June and July 2014, but Farrar communicated with and

gave instructions to Shigemoto during those trips via encrypted cell phones, and

Shigemoto used the same processes Farrar previously taught him. After the fourth

trip, Shigemoto was arrested and approximately 4,000 grams of cocaine and over

14,000 grams of methamphetamine were seized. Shigemoto ultimately pleaded

guilty to multiple drug-trafficking charges and was sentenced to 135 months in

prison. After a jury trial, Farrar Sr. was convicted of drug-trafficking charges and

was sentenced to 324 months in prison.

Farrar was subsequently indicted as well. The single-count indictment

charged him with conspiring to “distribute and possess, with intent to distribute,

[1] fifty (50) grams or more, to wit: approximately 14,404 grams, of

methamphetamine . . . and [2] five hundred (500) grams or more, to wit:

approximately 3,998 grams, of a mixture or substance containing a detectable

2 amount of cocaine,” beginning “not later than May, 2013, and continuing up to and

including July 22, 2014.” The indictment thus specifically alleged that the

conspiracy involved the minimum amounts of methamphetamine and cocaine

required to qualify for the applicable mandatory minimum sentences. See 21

U.S.C. § 841(b)(1)(A)(viii) (10-year sentence for “50 grams or more of

methamphetamine”); id. § 841(b)(1)(B)(ii) (5-year sentence for “500 grams or

more of a mixture or substance containing a detectable amount of . . . cocaine”).

The “to wit” clauses in the indictment mentioned the specific amounts of each drug

that corresponded with Shigemoto’s fourth trip.

The jury at Farrar’s trial was properly instructed that it could convict him if

it found that he conspired to distribute at least 50 grams of methamphetamine and

at least 500 grams of a mixture or substance containing cocaine, which are the

amounts required by the statute. Contrary to Farrar’s assertions, the indictment’s

mention of the specific drug amounts from Shigemoto’s fourth trip did not thereby

narrow the conspiracy charge to one that related solely to that fourth trip. The

indictment expressly charged Farrar with a conspiracy spanning May 2013 through

July 22, 2014—i.e., dates that encompass all four of Shigemoto’s trips to Los

Angeles. Accordingly, the indictment’s mention of the specific amounts from the

fourth trip was “mere surplusage” and did “not alter the behavior for which

[Farrar] c[ould] be convicted” under the terms of the indictment. United States v.

3 Garcia-Paz, 282 F.3d 1212, 1215–16 (9th Cir. 2002).1

2. Farrar contends that the district court improperly limited the scope of his

intended questioning of Shigemoto, Farrar Sr., and the testifying government

agents. Reviewing for abuse of discretion, see United States v. Mikhel, 889 F.3d

1003, 1035 (9th Cir. 2018), we reject these contentions.

The district court did not abuse its discretion in precluding Farrar from

cross-examining Shigemoto about the sentence Shigemoto believed he was facing

when in 2014, before he had pleaded guilty, he ceased cooperating with the

Government against Farrar. The district court allowed Shigemoto to be cross-

examined as to his motivations at the time of trial in 2018, when he was

cooperating with the Government, and that examination included testimony

concerning the 135-month sentence that Shigemoto had received in 2015 as well as

his hope that, through his cooperation against Farrar, that sentence would be

reduced. The court also ruled that Farrar could ask Shigemoto whether, at the time

of his initial cooperation in 2014, he knew that he faced a “substantial sentence.”

Given the ample scope of cross-examination, the district court did not abuse its

discretion in concluding that the slight, if any, probative value there might be in

asking Shigemoto about his 2014 ex ante sentencing expectations was outweighed

1 We therefore have no occasion to reach Farrar’s challenge to the sufficiency of the evidence, inasmuch as that challenge rests on the erroneous premise that the indictment charged a narrow, fourth-trip-only conspiracy.

4 by the potential for unfair prejudice in disclosing to the jury what the applicable

mandatory minimum sentence might be for Farrar’s similar drug-trafficking

charge. See United States v. Frank, 956 F.2d 872, 879 (9th Cir. 1991) (“[I]t is

inappropriate for a jury to consider or be informed of the consequences of their

verdict.”).

Farrar also challenged the district court’s limitation of his questioning of

Farrar Sr., who testified as a defense witness at Farrar’s trial. During its cross-

examination of Farrar Sr., the Government elicited that he had pleaded guilty to an

earlier 2006 drug-trafficking case in state court but had elected to go to trial in his

federal prosecution arising from this investigation. Farrar argues that, in turn, he

then should have been allowed to elicit that Farrar Sr. chose to go to trial because a

guilty plea would not have substantially reduced his sentence. Given the limited, if

any, impeachment value in Farrar Sr.’s decisions to plead guilty or to go to trial,

the district court did not abuse its discretion in concluding that any rehabilitative

value in learning the motivations for Farrar Sr.’s decisions was outweighed by the

danger of unfair prejudice in potentially informing the jury about the sentences

Farrar Sr. had faced, including any mandatory minimum sentence.

The district court also did not abuse its discretion by precluding Farrar from

asking government agents or others about why, given that Shigemoto had

implicated Farrar in his proffer statement back in 2014, the Government had

5 chosen not to prosecute Farrar earlier. As the district court recognized, prosecutors

have “‘broad discretion’ as to whom to prosecute,” Wayte v. United States, 470

U.S. 598, 607 (1985) (citation omitted), and no pretrial challenge to the propriety

of the prosecution had been raised here. On this record, the district court acted

within its discretion in concluding that inquiry into such matters was irrelevant and

unduly prejudicial.

3. The district court did not abuse its discretion by admitting evidence of

Farrar’s prior conviction for methamphetamine possession. See United States v.

Cox, 963 F.3d 915, 924 (9th Cir. 2020) (stating that rulings on admissibility of

Rule 404(b) evidence are reviewed for abuse of discretion). The Government

sought to admit the evidence “for the very limited purpose of further showing the

defendant’s intent and knowledge about this drug distribution business,” and the

district court provided a contemporaneous limiting instruction to this effect. The

fact that the prior conviction and the charged conspiracy offense “involve different

material elements” is not dispositive, because the evidence relating to the prior

conviction “tended to show that [Farrar] was familiar with distribution of illegal

drugs and that his actions in this case were not an accident or a mistake.” United

States v. Vo, 413 F.3d 1010, 1018–19 (9th Cir. 2005); see also United States v.

Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982) (“We have consistently held that

evidence of a defendant’s prior possession or sale of narcotics is relevant under

6 Rule 404(b) to issues of intent, knowledge, motive, opportunity, and absence of

mistake or accident in prosecutions for possession of, importation of, and intent to

distribute narcotics.”). Indeed, Farrar did not contest that he met and drove around

Shigemoto during the first two trips, and the prior-conviction evidence was

relevant to his knowledge and intent in doing so. We find no abuse of discretion in

the admission of this evidence.

4. The district court did not commit prejudicial error in admitting a

YouTube video that depicts Farrar’s purchase of a BMW in 2012. Even assuming

arguendo that the 2012 purchase had limited relevance to the 2013–14 conspiracy

alleged in the indictment and that the district court should have reviewed the video

before admitting it, Farrar “fails to establish that [any] error more likely than not

affected the verdict and thus was not harmless error.” United States v. Schales,

546 F.3d 965, 976 (9th Cir. 2008). To the extent that the video was not cumulative

of other evidence that is not challenged on appeal, the risk of prejudice was

limited, and it is unlikely that the video affected the verdict.

5. Although the district court’s jury instruction about Pinkerton liability was

superfluous because Farrar was not charged with any substantive offense

committed by a co-conspirator, see United States v. Collazo, 984 F.3d 1308, 1335

(9th Cir. 2021) (en banc), the jury instructions were not “as a whole . . . misleading

or inadequate to guide the jury’s deliberation,” United States v. Shryock, 342 F.3d

7 948, 986 (9th Cir. 2003), with respect to the single conspiracy charge against

Farrar. The district court made clear that Farrar was “not on trial for any act or

conduct or offense not alleged in the Indictment” and that, to find him guilty, the

jury was required to determine that a conspiracy existed and that he had joined it.

The Pinkerton instruction therefore did not, as Farrar contends, “absolve the jury

of the need to find the conspiratorial agreement charged in the indictment.” Farrar

has failed to show a prejudicial abuse of discretion. See United States v. Johnson,

956 F.2d 197, 199 (9th Cir. 1992).

6. Although Farrar did not object below, he argues on appeal that the final

jury instruction on Rule 404(b) evidence constitutes reversible plain error. We

disagree.

To the extent that Farrar contends that there was no factual basis to instruct

the jury that it could consider his prior conviction for purposes of “preparation”

and “plan,” there is no basis to conclude that the jury here used it for that purpose,

thereby prejudicing Farrar’s substantial rights. See Griffin v. United States, 502

U.S. 46, 59 (1991) (noting that, when jurors “have been left the option of relying

upon a factually inadequate theory,” there is good reason to think that “their own

intelligence and expertise will save them from that error” because “jurors are well

equipped to analyze the evidence”) (emphasis omitted). To the extent that Farrar

instead challenges the legality of the instruction’s reference to “preparation” or

8 “plan,” as opposed to the factual basis for the instruction, there is no plain error

because Rule 404(b) expressly allows evidence of other crimes to be considered

for such purposes. See FED. R. EVID. 404(b)(1)–(2) (evidence of another crime,

wrong, or act “may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident”) (emphasis added).

Likewise, we find no plain error in the fact that the final Rule 404(b)

instruction generally referred to “other crimes not charged here,” rather than only

to Farrar’s prior conviction. To the extent that this phrasing arguably allowed the

jury to consider uncharged acts such as Farrar’s potential tax fraud in 2012, there

was no plain error affecting substantial rights. If anything, a cautionary instruction

limiting the jury’s use of already-admitted evidence would presumably mitigate

any potential for unfair prejudice to Farrar.

Farrar is correct, however, that the reporter’s transcript of the district court’s

oral reading of the final Rule 404(b) instruction differs in a critical respect from the

written version of the instruction. The written instruction properly said that

evidence of other wrongs may be considered “only” for specified purposes “and

for no other purpose.” The transcript, however, renders this latter phrase as “or for

any other purpose.” Even assuming that the transcript is correct and that the court

misspoke in reading the instruction in open court, reversal is not warranted. The

9 trial judge had correctly recited the limitations on the use of Rule 404(b) evidence

in the previous instruction that was given contemporaneously with the admission

of the evidence of Farrar’s prior conviction. The written instructions also correctly

recited those limits, and the court provided each juror with his or her own written

copy of the instructions to take into the jury room. Moreover, both the oral and

written Rule 404(b) instruction ended with the specific admonition that the jury

could “not consider the evidence as evidence of guilt of the crime for which the

defendant is now on trial.” On this record, any error in the oral reading of the

instructions did not “‘affect[] the outcome of the district court proceedings’” and

did not “‘seriously affect[] the fairness, integrity, or public reputation of judicial

proceedings.’” United States v. Marcus, 560 U.S. 258, 262 (2010) (citation

omitted).

7. Viewing all of the above-raised issues collectively, we find no basis to

reverse Farrar’s conviction on the grounds of prejudicial cumulative error. See

United States v. Wallace, 848 F.2d 1464, 1475–76 (9th Cir. 1988).

8. Farrar also raises two challenges to his sentencing. Neither has merit.

First, Farrar argues that the district court clearly erred by failing to make

sufficient findings before imposing a two-level obstruction-of-justice sentencing

enhancement under U.S.S.G. § 3C1.1 based on Farrar’s trial testimony.

Specifically, Farrar contends that the district court failed to make the requisite

10 “express findings on each element of perjury,” viz., that “‘(1) the defendant gave

false testimony, (2) on a material matter, (3) with willful intent.’” United States v.

Herrera-Rivera, 832 F.3d 1166, 1174–75 (9th Cir. 2016) (quoting United States v.

Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014)). We disagree. Although

Herrera-Rivera and Castro-Ponce require express findings as to each of these

three elements, they do not impose a “magic words” requirement as to how those

findings are to be recited. All that is required is that the district court make

sufficient findings that “encompass[] all of the factual predicates for a finding of

perjury.” United States v. Dunnigan, 507 U.S. 87, 95 (1993). Here, the record

unmistakably confirms that the district court found that all three elements were

satisfied.

Farrar concedes that the district court made a sufficient finding that he

testified falsely at trial. Although the district court did not recite the word

“material,” the court expressly stated, in explaining why it was imposing the

enhancement, that Farrar’s testimony, if believed, would have precluded a finding

of guilt. That finding necessarily establishes that Farrar’s false testimony was

material. See Dunnigan, 507 U.S. at 95 (holding that a statement is material if it

related to matters that “substantially affect the outcome of the case”) (emphasis

omitted). Moreover, the district court specifically found that, by giving his false,

exculpatory testimony, Farrar had engaged in an “attempt to obstruct justice,”

11 which necessarily means that the court found it to be willful. See Dunnigan, 507

U.S. at 94 (stating that the requisite willfulness is present if the defendant intended

to provide false testimony, rather than acted “as a result of confusion, mistake, or

faulty memory”).

Second, Farrar argues that the district court clearly erred in finding that he

had a leadership role in the conspiracy, thereby warranting a two-level sentencing

enhancement under U.S.S.G. § 3B1.1(c). “A court may impose this enhancement

if there is ‘evidence that the defendant exercised some control over others involved

in the commission of the offense or was responsible for organizing others for the

purpose of carrying out the crime.’” United States v. Whitney, 673 F.3d 965, 975

(9th Cir. 2012) (citation omitted). The trial record contains ample evidence to

support the district court’s conclusion that, by training Shigemoto during the first

two trips to the mainland, Farrar exercised control over him. See supra at 2. There

was no clear error in applying the two-level enhancement. See United States v.

Maldonado, 215 F.3d 1046, 1050–51 (9th Cir. 2000) (“A single incident of persons

acting under a defendant’s direction is sufficient evidence to support a two-level

role enhancement.”).

AFFIRMED.