United States v. Eric Marquez

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2018
• Docket: 17-50354
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 13 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50354

Plaintiff-Appellee, D.C. No. 3:16-cr-02985-LAB-1 v.

ERIC ALFONSO MARQUEZ, AKA Erik MEMORANDUM* Alfonso Marquez,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted November 5, 2018** Pasadena, California

Before: RAWLINSON and HURWITZ, Circuit Judges, and BOUGH,*** District Judge.

* 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 Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. Eric Marquez appeals his convictions for making false statements in

violation of 18 U.S.C. § 1001, challenging the district court's failure to give sua

sponte jury instructions, as well as its responses (not objected to below) to jury

questions. We have jurisdiction under 28 U.S.C. § 1292. We review for plain

error, United States v. Romm, 455 F.3d 990, 1003 (9th Cir. 2006); United States v.

Bonanno, 852 F.2d 434, 440 (9th Cir. 1988), and affirm.

1. The district court did not plainly err by failing to instruct the jury sua

sponte on a public authority or advice of counsel defense. The court's instruction

that the subject charges required a finding of willfulness adequately reached the

defense's theory that Marquez relied on a retired Customs and Border Protection

officer's advice in making the false statements. See United States v. Bush, 626

F.3d 527, 539 (9th Cir. 2010) ("[T]he failure to give a requested instruction is not

reversible error if other instructions, in their entirety, adequately cover that defense

theory.") (internal quotation marks omitted). In any event, neither defense was

available to Marquez, as there was no evidence that the retired officer had the

"actual legal authority" to condone his false answers, United States v. Blair, 210

F.3d 385 (9th Cir. 2000), or was an attorney.

2. The district court did not err in its responses to the jury's questions. First,

the court did not err by failing to inform the jury sua sponte that an arrest can

2 revert to a detention under California Penal Code § 849.5. That section is not

applicable to Marquez's case, see Cal. Penal Code § 849.5 (applying to "any case in

which a person is arrested and released and no accusatory pleading is filed

charging him with an offense"), and Marquez did not contend that he was aware of,

or relied on, the statute. Second, the court's response did not give undue weight to

the relevance of the citation. Rather, the response was accurate s and did not

address whether Marquez knew that he had been arrested

AFFIRMED.