NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-1280 D.C. No. Plaintiff - Appellee, 2:21-cr-00171-GMN-VCF -1 v. MEMORANDUM* JAMES EARL MAGEE,
Defendant - Appellant.
Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding
Argued and Submitted August 13, 2024 San Francisco, California
Before: GRABER, CALLAHAN, and KOH, Circuit Judges.
James Magee appeals his conviction, following a jury trial, for one count of
theft of government money or property in violation of 18 U.S.C. § 641 and one
count of mail theft by a postal employee in violation of 18 U.S.C. § 1709. We
have jurisdiction under 28 U.S.C § 1291. We affirm in all respects except that we
vacate the standard conditions of supervised release and remand for further
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. proceedings as described in United States v. Montoya, 82 F.4th 640 (9th Cir. 2023)
(en banc).
1. Magee argues that the district court should have granted a mistrial
because of the government’s alleged Brady violation and outrageous conduct.
However, even assuming that the government withheld favorable evidence from
Magee, no prejudice ensued because there was not “a reasonable probability that
the suppressed evidence would have produced a different verdict.” Strickler v.
Greene, 527 U.S. 263, 281 (1999).
The evidence at trial established that Magee sold a customer the three money
orders at issue, that Magee’s unique employee identification number was listed on
at least one of the receipts cashing the money orders, that Magee was at his
workstation around the time the money orders were cashed (as evidenced by
surveillance footage), and that no one else was at Magee’s workstation when the
money orders were cashed. Moreover, the customer who purchased the three
money orders at issue identified Magee in court, funds were deposited into
Magee’s bank account a few days after the three money orders at issue were
cashed, and Magee thereafter paid an overdue car bill after having not paid that bill
for four months. Other evidence also established that Magee had sold and cashed
$1 money orders addressed to someone else shortly before the three money orders
at issue were cashed, that Magee’s handwriting and driver’s license number were
2 associated with these $1 money orders, that a stub from one of these $1 money
orders was recovered from Magee’s car, and that Magee asked a supervisor about
how to cash money orders around the same time (which the supervisor considered
odd).
In light of this evidence, the fact that Ms. Elsas gave her driver’s license to a
clerk other than Magee—a fact that the government never contested—did not give
rise to a “second suspect” such that Magee was deprived of a fair trial. United
States v. Jernigan, 492 F.3d 1050, 1056–57 (9th Cir. 2007) (en banc). Because
any withheld evidence could not “reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict,” Strickler, 527
U.S. at 290 (citation and internal quotation marks omitted), we reject Magee’s
contention that a new trial is warranted.
2. Magee raises five evidentiary challenges, each of which fails.
First, the district court correctly determined that evidence of Magee
negotiating $1 money orders using another person’s identity was “inextricably
intertwined” with the charged offenses. United States v. Wells, 879 F.3d 900, 928
(9th Cir. 2018). The evidence allowed the prosecutor to offer a “coherent and
comprehensive story” regarding Magee’s commission of the crime, id. (citation
omitted), as it established how Magee tested the viability of cashing money orders
addressed to someone else. But even if the evidence was “other act evidence”
3 within the meaning of Federal Rule of Evidence 404(b), the district court did not
abuse its discretion in admitting it. See United States v. Carpenter, 923 F.3d 1172,
1180–81 (9th Cir. 2019) (“We review de novo whether evidence is other act
evidence within the meaning of Fed. R. Evid. 404(b), but the admission of this
evidence for abuse of discretion.”). The evidence helped to show that Magee had
the opportunity and knowledge to cash another person’s money orders and that he
prepared to do so. See Fed. R. Evid. 404(b)(2). The evidence also met the Ninth
Circuit’s four-part test for admissibility under Rule 404(b), as it helped prove a
“material point” at trial by showing that Magee used another person’s identity to
execute the crime, it occurred around the same time as the charged offenses, and it
was “similar to the offense[s] charged” because it illustrated Magee’s knowledge
of bypassing Postal Service protocols for cashing money orders addressed to
someone else. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1013 (9th
Cir. 1995). There was also sufficient evidence to show that Magee, in fact,
negotiated the $1 money orders.
Second, the district court did not abuse its discretion in admitting
surveillance footage taken from the post office. Witness testimony established that
the date on the footage was accurate and that the timestamp on the footage “is
always off by a few minutes.” Contrary to Magee’s argument that the government
failed to establish the accuracy of the footage timestamps, the government
4 established that the footage had timestamps “at or near the time that the transaction
was conducted,” which is what the rules of evidence require. Fed. R. Evid.
901(b)(1).
Third, the district court did not abuse its discretion by admitting the lay
witness handwriting testimony of Magee’s ex-fiancée, Ms. Sanders-Castro.
Sanders-Castro confirmed that she had seen Magee’s handwriting “a few times,”
was “vaguely familiar” with it, and recognized it on the $1 money orders.1
Although her familiarity with Magee’s handwriting was admittedly limited, it was
still helpful to the jury. See 29 Wright & Miller, Federal Practice & Procedure §
6252 (2024) (explaining that Rule of Evidence 701 generally allows testimony that
would be helpful to the jury, as long as the benefits of admission outweigh the
detriments).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-1280 D.C. No. Plaintiff - Appellee, 2:21-cr-00171-GMN-VCF -1 v. MEMORANDUM* JAMES EARL MAGEE,
Defendant - Appellant.
Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding
Argued and Submitted August 13, 2024 San Francisco, California
Before: GRABER, CALLAHAN, and KOH, Circuit Judges.
James Magee appeals his conviction, following a jury trial, for one count of
theft of government money or property in violation of 18 U.S.C. § 641 and one
count of mail theft by a postal employee in violation of 18 U.S.C. § 1709. We
have jurisdiction under 28 U.S.C § 1291. We affirm in all respects except that we
vacate the standard conditions of supervised release and remand for further
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. proceedings as described in United States v. Montoya, 82 F.4th 640 (9th Cir. 2023)
(en banc).
1. Magee argues that the district court should have granted a mistrial
because of the government’s alleged Brady violation and outrageous conduct.
However, even assuming that the government withheld favorable evidence from
Magee, no prejudice ensued because there was not “a reasonable probability that
the suppressed evidence would have produced a different verdict.” Strickler v.
Greene, 527 U.S. 263, 281 (1999).
The evidence at trial established that Magee sold a customer the three money
orders at issue, that Magee’s unique employee identification number was listed on
at least one of the receipts cashing the money orders, that Magee was at his
workstation around the time the money orders were cashed (as evidenced by
surveillance footage), and that no one else was at Magee’s workstation when the
money orders were cashed. Moreover, the customer who purchased the three
money orders at issue identified Magee in court, funds were deposited into
Magee’s bank account a few days after the three money orders at issue were
cashed, and Magee thereafter paid an overdue car bill after having not paid that bill
for four months. Other evidence also established that Magee had sold and cashed
$1 money orders addressed to someone else shortly before the three money orders
at issue were cashed, that Magee’s handwriting and driver’s license number were
2 associated with these $1 money orders, that a stub from one of these $1 money
orders was recovered from Magee’s car, and that Magee asked a supervisor about
how to cash money orders around the same time (which the supervisor considered
odd).
In light of this evidence, the fact that Ms. Elsas gave her driver’s license to a
clerk other than Magee—a fact that the government never contested—did not give
rise to a “second suspect” such that Magee was deprived of a fair trial. United
States v. Jernigan, 492 F.3d 1050, 1056–57 (9th Cir. 2007) (en banc). Because
any withheld evidence could not “reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict,” Strickler, 527
U.S. at 290 (citation and internal quotation marks omitted), we reject Magee’s
contention that a new trial is warranted.
2. Magee raises five evidentiary challenges, each of which fails.
First, the district court correctly determined that evidence of Magee
negotiating $1 money orders using another person’s identity was “inextricably
intertwined” with the charged offenses. United States v. Wells, 879 F.3d 900, 928
(9th Cir. 2018). The evidence allowed the prosecutor to offer a “coherent and
comprehensive story” regarding Magee’s commission of the crime, id. (citation
omitted), as it established how Magee tested the viability of cashing money orders
addressed to someone else. But even if the evidence was “other act evidence”
3 within the meaning of Federal Rule of Evidence 404(b), the district court did not
abuse its discretion in admitting it. See United States v. Carpenter, 923 F.3d 1172,
1180–81 (9th Cir. 2019) (“We review de novo whether evidence is other act
evidence within the meaning of Fed. R. Evid. 404(b), but the admission of this
evidence for abuse of discretion.”). The evidence helped to show that Magee had
the opportunity and knowledge to cash another person’s money orders and that he
prepared to do so. See Fed. R. Evid. 404(b)(2). The evidence also met the Ninth
Circuit’s four-part test for admissibility under Rule 404(b), as it helped prove a
“material point” at trial by showing that Magee used another person’s identity to
execute the crime, it occurred around the same time as the charged offenses, and it
was “similar to the offense[s] charged” because it illustrated Magee’s knowledge
of bypassing Postal Service protocols for cashing money orders addressed to
someone else. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1013 (9th
Cir. 1995). There was also sufficient evidence to show that Magee, in fact,
negotiated the $1 money orders.
Second, the district court did not abuse its discretion in admitting
surveillance footage taken from the post office. Witness testimony established that
the date on the footage was accurate and that the timestamp on the footage “is
always off by a few minutes.” Contrary to Magee’s argument that the government
failed to establish the accuracy of the footage timestamps, the government
4 established that the footage had timestamps “at or near the time that the transaction
was conducted,” which is what the rules of evidence require. Fed. R. Evid.
901(b)(1).
Third, the district court did not abuse its discretion by admitting the lay
witness handwriting testimony of Magee’s ex-fiancée, Ms. Sanders-Castro.
Sanders-Castro confirmed that she had seen Magee’s handwriting “a few times,”
was “vaguely familiar” with it, and recognized it on the $1 money orders.1
Although her familiarity with Magee’s handwriting was admittedly limited, it was
still helpful to the jury. See 29 Wright & Miller, Federal Practice & Procedure §
6252 (2024) (explaining that Rule of Evidence 701 generally allows testimony that
would be helpful to the jury, as long as the benefits of admission outweigh the
detriments). We also find it relevant that Magee’s counsel conceded at trial that
Sanders-Castro “could testify, because she’s familiar with [Magee’s] handwriting.”
Further, even if the district court abused its discretion in admitting Agent
Williams’ lay witness handwriting testimony, any error was harmless. Sanders-
Castro testified that she recognized Magee’s signature on the $1 money orders,
Agent Williams found a stub for one of the $1 money orders in Magee’s car,
1 The parties dispute whether plain error review applies to the admission of Sanders-Castro’s testimony. However, because there was no abuse of discretion, it follows that there was no plain error. United States v. Autery, 555 F.3d 864, 873 (9th Cir. 2009).
5 Magee’s driver’s license was listed on the $1 money order, and the Postal Service
records showed Magee selling the $1 money order around the same time he sold
the other money orders at issue. Admission of Agent Williams’ handwriting
testimony, if erroneous, thus did not “more likely than not affect[] the verdict”
given this other evidence tending to link Magee to the $1 money orders. United
States v. Koziol, 993 F.3d 1160, 1183 (9th Cir. 2021) (quoting United States v.
Obendorf, 894 F.3d 1094, 1098 (9th Cir. 2018)).
Fourth, the district court did not abuse its discretion in admitting Exhibit 14,
which included photocopied receipts from the July 2 and July 6 money order
transactions. The photocopied receipts satisfied the best evidence rule because
they were duplicates of the original receipts. See Fed. R. Evid. 1002, 1003. Magee
argues that the July 6 receipt could not be considered a duplicate because the
bottom of the receipt was cut off in the photocopy machine, but the district court
properly considered “the appearance” of the July 6 receipt and the “reliability of
the copying process” to conclude that the missing information did not affect the
evidence’s reliability. See 31 Wright & Miller, Federal Practice & Procedure §
7167 (2024) (“In determining whether the copy is an accurate reproduction, the
court may consider, among other evidence, the appearance of the very item in
question, including the reliability of the copying process that appears to have been
employed.”). Magee’s argument that Exhibit 14 violated the rule of completeness
6 also fails because there is no “other part” of the two receipts that the government
could have introduced given that the government no longer had copies of the
original receipts. See Fed. R. Evid. 106. Finally, even if the district court abused
its discretion by admitting the incomplete July 6 receipt, any such error was
harmless given the other evidence in the record supporting Magee’s conviction.
Fifth, the district court did not abuse its discretion in declining to force
admission of Magee’s pretrial recorded statement. Magee argues that the
government conditionally agreed to admit his recorded statement with certain
redactions, but he overstates the record. Although we hold the government strictly
to its pre-trial agreements, United States v. Shapiro, 879 F.2d 468, 469–71 (9th Cir.
1989), no binding agreement between the parties was reached here. The
government wrote by email to defense counsel that “to the extent the parties would
agree to redact the recording” it would “consider stipulating to the admission of
certain clips.” Considering to do something is not agreeing to actually do
something. Further, the government’s email ended by stating that it was “not
committing to this option at this time, but we can discuss further, and that might be
a reasonable compromise.”
3. Magee next argues that there was insufficient evidence to support his
conviction. To begin, he contends that he did not steal property of the United
States, which is required for a conviction under 18 U.S.C. § 641. Magee
7 acknowledges that our precedent holds otherwise, United States v. Dupee, 569 F.2d
1061 (9th Cir. 1978), but contends Dupee was “effectively overruled” by the
Supreme Court in Delaware v. New York, 507 U.S. 490 (1993), and Delaware v.
Pennsylvania, 598 U.S. 115 (2023). However, neither New York nor Pennsylvania
considered money orders that were stolen or that required the issuer—here, the
Postal Service—to reimburse the stolen money orders. As a result of Magee’s
conduct, the Postal Service was required to reimburse the stolen $2,340.27, which
most certainly constitutes a “thing of value of the United States” under § 641. See
United States v. Miller, 520 F.2d 1208, 1210 (9th Cir. 1975) (finding a violation
under § 641 where money was “drawn on the account of the United States”). So
even if the debtor-creditor relationship articulated in New York and Pennsylvania
exists, the reasoning in those cases is not “clearly irreconcilable” with Dupee.
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
Magee also argues that insufficient evidence established his identity as the
person who both unlawfully stole and cashed the money orders at issue. But as we
have already noted, the customer who purchased the stolen money orders identified
Magee at trial, the surveillance footage showed Magee selling the money orders to
the customer, and at least one of the receipts from cashing the money orders
showed Magee’s unique employee identification number. The evidence at trial
also established that just a few days after cashing the money orders Magee
8 deposited money into his bank account and paid an overdue bill, a stub from one of
the $1 money orders was recovered from Magee’s car, the $1 money orders were
associated with Magee’s handwriting and driver’s license number, and Magee had
asked a supervisor about cashing money orders around the same time that the three
money orders at issue were cashed. “[V]iewing the evidence in the light most
favorable to the prosecution, [a] rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Mincoff, 574
F.3d 1186, 1192 (9th Cir. 2009) (quoting United States v. Dearing, 504 F.3d 897,
900 (9th Cir. 2007)).
4. Finally, in view of the parties’ stipulation, we vacate the imposition of
the “standard conditions” of Magee’s supervised release and we remand for the
limited purpose of allowing the district court to impose these conditions, if it so
chooses, in a manner consistent with Montoya, 82 F.4th at 651 (“The district court
can recite each condition it elects to impose. Alternatively, where the defendant
has been informed of the proposed conditions of supervised release in advance of
sentencing, the court can incorporate those conditions by reference at the
hearing.”).
Accordingly, we AFFIRM Magee’s conviction and sentence except that we
VACATE the standard conditions of supervised release, and REMAND.