FILED NOT FOR PUBLICATION JAN 06 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10302
Plaintiff-Appellee, D.C. No. 3:12-cr-00144-EMC-1 v.
MIKAL XYLON WILDE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding
Argued and Submitted December 13, 2016 San Francisco, California
Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,** District Judge.
In the summer of 2010, Mikal Xylon Wilde hired three men (Christopher
Bigelow, Francisco Lopez-Paz, and Roberto Juarez-Madrid) to work on his
marijuana farm. In the ensuing months, the men’s living and work conditions
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. deteriorated because Wilde confiscated their phones, required them to perform
onerous manual labor, neglected to replenish their food, and failed to pay them as
agreed.
On August 25, 2010, the men contacted Wilde’s business partner, Tom
Tuohy, and threatened to report the marijuana operation if they did not receive
payment. When Wilde discovered that the men had complained to Tuohy, he was
angry but promised to pay and escort them back to the city. That night, Wilde went
to the men’s trailer and shot at all three men, killing Juarez-Madrid and severely
injuring Lopez-Paz in the face. Bigelow and Lopez-Paz escaped and hid in the
woods nearby.
The next morning, Lopez-Paz went to a fire department, gave a statement to
law enforcement, and was escorted to a hospital. Bigelow, meanwhile, encountered
a jogger, explained his situation, and asked for help. The jogger found assistance
for Bigelow, who then gave his statement to officers.
Before trial, Tuohy testified in front of a grand jury and mentioned an email
that he had received from Wilde, asking whether anyone would miss Lopez-Paz if
he vanished. Experts from the FBI, Yahoo, and Microsoft could not locate the
email but acknowledged that it could have been deleted. Tuohy also testified that
2 Wilde had the password to Tuohy’s email account and that Wilde’s sister visited
Tuohy after the murder and asked Tuohy to delete all his emails.
A jury convicted Wilde of first-degree murder and several drug offenses.
The court sentenced Wilde to life plus thirty-five years. Wilde appeals three
evidentiary rulings and one jury instruction. We affirm.
1. The district court did not abuse its discretion in allowing Tuohy to
testify about the missing email. See Fed. R. Evid. 1008. The court exercised its
gate-keeping function under Rule 104(b) and determined a reasonable jury could
conclude that the disputed email existed. See Huddleston v. United States, 485 U.S.
681, 690 (1988) (holding that under Rule 104(b), the “court simply examines all
the evidence in the case and decides whether the jury could reasonably find the
conditional fact . . . by a preponderance of the evidence”).
The district court did not commit plain error by not instructing the jury that
it should find preliminary facts about the email’s existence before attributing any
weight to the email’s contents. Even if the district court did err by failing to
instruct, Wilde has not shown that such error contravened clearly settled law. See
United States v. Greer, 640 F.3d 1011, 1019 (9th Cir. 2011) (failure to instruct the
jury was not plain error where “no circuit has held that [the disputed] instruction is
required and at least one circuit has held that it is not”). Moreover, because the
3 testimony made clear that there was no record that the contested email was sent or
received and its existence was hotly contested, no rational juror would rely on its
alleged contents if he or she did not first conclude that it had in fact existed; any
instruction to that effect thus could not have made a difference. Finally, the record
contains substantial evidence of premeditation, so any error did not prejudice
Wilde. See United States v. Torralba-Mendia, 784 F.3d 652, 662 (9th Cir. 2015)
(holding that plain error did not affect the outcome where there was “a substantial
amount of evidence, aside from [the erroneously admitted testimony]”).
2. The district court did not abuse its discretion in admitting prior
consistent statements by Bigelow and Lopez-Paz. See Fed. R. Evid. 801(d)(1)(B).
Bigelow’s prior consistent statement was admissible because the defense cross-
examined him extensively with parts of the statement. See United States v.
Collicott, 92 F.3d 973, 979–80 (9th Cir. 1996) (“[T]his Circuit has historically
allowed a party to introduce prior statements because they were part of the same
conversation or document from which impeaching inconsistent statements were
drawn.”).
Lopez-Paz’s prior consistent statement was admissible because the defense
opened the door by questioning him about a U non-immigrant status visa he
received from the government. See Arizona v. Johnson, 351 F.3d 988, 999 (9th Cir.
4 2003) (holding that a charge of improper motive based on receipt of immigration
benefits opens the door to prior consistent statement).
3. The district court’s decision to admit Bigelow’s out-of-court statement
to the jogger did not result in prejudice because Bigelow, Lopez-Paz, and even
Wilde himself testified at trial about the same events that Bigelow relayed to the
jogger. Also, Bigelow’s prior consistent statement concerning those same events
was, as we have explained, properly admitted. Woods v. Sinclair, 764 F.3d 1109,
1125-26 (9th Cir. 2014) (finding no prejudice where the hearsay statements “were
cumulative of the testimony by [another witness]” who testified to the same event);
United States v. Sherlock, 962 F.2d 1349, 1365 (9th Cir. 1989) (finding no
prejudice where “[a]t least two other witnesses testified” to the same events as the
hearsay declarant).
4. The district court properly instructed the jury that in determining the
amount of marijuana, all marijuana plants should be included in the quantity,
regardless of sex. See United States v. Traynor, 990 F.2d 1153, 1160 (9th Cir.
1993), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th
Cir. 2001) (“It is not obviously irrational for Congress not to distinguish between
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FILED NOT FOR PUBLICATION JAN 06 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10302
Plaintiff-Appellee, D.C. No. 3:12-cr-00144-EMC-1 v.
MIKAL XYLON WILDE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding
Argued and Submitted December 13, 2016 San Francisco, California
Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,** District Judge.
In the summer of 2010, Mikal Xylon Wilde hired three men (Christopher
Bigelow, Francisco Lopez-Paz, and Roberto Juarez-Madrid) to work on his
marijuana farm. In the ensuing months, the men’s living and work conditions
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. deteriorated because Wilde confiscated their phones, required them to perform
onerous manual labor, neglected to replenish their food, and failed to pay them as
agreed.
On August 25, 2010, the men contacted Wilde’s business partner, Tom
Tuohy, and threatened to report the marijuana operation if they did not receive
payment. When Wilde discovered that the men had complained to Tuohy, he was
angry but promised to pay and escort them back to the city. That night, Wilde went
to the men’s trailer and shot at all three men, killing Juarez-Madrid and severely
injuring Lopez-Paz in the face. Bigelow and Lopez-Paz escaped and hid in the
woods nearby.
The next morning, Lopez-Paz went to a fire department, gave a statement to
law enforcement, and was escorted to a hospital. Bigelow, meanwhile, encountered
a jogger, explained his situation, and asked for help. The jogger found assistance
for Bigelow, who then gave his statement to officers.
Before trial, Tuohy testified in front of a grand jury and mentioned an email
that he had received from Wilde, asking whether anyone would miss Lopez-Paz if
he vanished. Experts from the FBI, Yahoo, and Microsoft could not locate the
email but acknowledged that it could have been deleted. Tuohy also testified that
2 Wilde had the password to Tuohy’s email account and that Wilde’s sister visited
Tuohy after the murder and asked Tuohy to delete all his emails.
A jury convicted Wilde of first-degree murder and several drug offenses.
The court sentenced Wilde to life plus thirty-five years. Wilde appeals three
evidentiary rulings and one jury instruction. We affirm.
1. The district court did not abuse its discretion in allowing Tuohy to
testify about the missing email. See Fed. R. Evid. 1008. The court exercised its
gate-keeping function under Rule 104(b) and determined a reasonable jury could
conclude that the disputed email existed. See Huddleston v. United States, 485 U.S.
681, 690 (1988) (holding that under Rule 104(b), the “court simply examines all
the evidence in the case and decides whether the jury could reasonably find the
conditional fact . . . by a preponderance of the evidence”).
The district court did not commit plain error by not instructing the jury that
it should find preliminary facts about the email’s existence before attributing any
weight to the email’s contents. Even if the district court did err by failing to
instruct, Wilde has not shown that such error contravened clearly settled law. See
United States v. Greer, 640 F.3d 1011, 1019 (9th Cir. 2011) (failure to instruct the
jury was not plain error where “no circuit has held that [the disputed] instruction is
required and at least one circuit has held that it is not”). Moreover, because the
3 testimony made clear that there was no record that the contested email was sent or
received and its existence was hotly contested, no rational juror would rely on its
alleged contents if he or she did not first conclude that it had in fact existed; any
instruction to that effect thus could not have made a difference. Finally, the record
contains substantial evidence of premeditation, so any error did not prejudice
Wilde. See United States v. Torralba-Mendia, 784 F.3d 652, 662 (9th Cir. 2015)
(holding that plain error did not affect the outcome where there was “a substantial
amount of evidence, aside from [the erroneously admitted testimony]”).
2. The district court did not abuse its discretion in admitting prior
consistent statements by Bigelow and Lopez-Paz. See Fed. R. Evid. 801(d)(1)(B).
Bigelow’s prior consistent statement was admissible because the defense cross-
examined him extensively with parts of the statement. See United States v.
Collicott, 92 F.3d 973, 979–80 (9th Cir. 1996) (“[T]his Circuit has historically
allowed a party to introduce prior statements because they were part of the same
conversation or document from which impeaching inconsistent statements were
drawn.”).
Lopez-Paz’s prior consistent statement was admissible because the defense
opened the door by questioning him about a U non-immigrant status visa he
received from the government. See Arizona v. Johnson, 351 F.3d 988, 999 (9th Cir.
4 2003) (holding that a charge of improper motive based on receipt of immigration
benefits opens the door to prior consistent statement).
3. The district court’s decision to admit Bigelow’s out-of-court statement
to the jogger did not result in prejudice because Bigelow, Lopez-Paz, and even
Wilde himself testified at trial about the same events that Bigelow relayed to the
jogger. Also, Bigelow’s prior consistent statement concerning those same events
was, as we have explained, properly admitted. Woods v. Sinclair, 764 F.3d 1109,
1125-26 (9th Cir. 2014) (finding no prejudice where the hearsay statements “were
cumulative of the testimony by [another witness]” who testified to the same event);
United States v. Sherlock, 962 F.2d 1349, 1365 (9th Cir. 1989) (finding no
prejudice where “[a]t least two other witnesses testified” to the same events as the
hearsay declarant).
4. The district court properly instructed the jury that in determining the
amount of marijuana, all marijuana plants should be included in the quantity,
regardless of sex. See United States v. Traynor, 990 F.2d 1153, 1160 (9th Cir.
1993), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th
Cir. 2001) (“It is not obviously irrational for Congress not to distinguish between
male and female marijuana plants, regardless of THC level.”). The challenged
5 instruction does not violate Wilde’s due process rights, and therefore, the district
court did not abuse its discretion in giving the instruction.
AFFIRMED.
6 FILED USA v Mikal Xylon Wilde 15-10302 JAN 06 2017 BERZON, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Federal Rule of Evidence 1008 states that in a jury trial, “the jury determines
– in accordance with [Fed. R. Evid.] 104(b) – any issue about whether . . . an
asserted writing, recording or photograph ever existed.” In my view, Rule 1008's
requirement that “the jury determine[]” whether or not an asserted writing ever
existed probably contemplates that in this context, the jury as a whole find the
predicate facts by a preponderance of the evidence. If that is correct, then an
instruction to that effect – and, in all likelihood, a special verdict form – would be
needed.
A “jury determination” generally refers to facts found by the entire jury.
See, e.g., Kansas v. Marsh, 548 U.S. 163, 165-66 (2006) (examining whether state
statute requiring imposition of the death penalty where “the . . . jury determines
that aggravating evidence and mitigating evidence are in equipoise” violated the
Constitution); Apprendi v. New Jersey, 530 U.S. 466, 476–77 (2000) (the
Fourteenth Amendment entitles a state criminal defendant to “a jury determination
that [he] is guilty of every element of the crime with which he is charged, beyond a
reasonable doubt.”) (citing United States v. Gaudin, 515 U.S. 506, 510 (1995));
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 342 (1998) (right to a
jury trial includes the “right to a jury determination of the amount of statutory damages.”).
But the defense has never argued, including in this court, that a
determination by the jury as a whole was required. As a result, the parties have not
briefed whether the Rule in fact contemplates a predicate determination by the jury
as a body. If, as the defendant instead has asserted, it is each juror who was
supposed to decide on the predicate fact (the existence of the email) before relying
on its content, then there was no need for an instruction. Any juror would
necessarily have to come to a conclusion about Tuohy’s veracity before factoring
the email into his or her premeditation conclusion. With those observations, I
concur in the memorandum disposition in full.