NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50267
Plaintiff-Appellee, D.C. No. 2:14-cr-00338-SJO-AB-57 v.
TONY GORDON, AKA Wodi, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding
Submitted October 15, 2019** Pasadena, California
Before: NGUYEN and MILLER, Circuit Judges, and VITALIANO,*** District Judge.
Following a jury trial, Tony Gordon was convicted of conspiracy to
distribute cocaine base and marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A)
* 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 Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. and 846, and conspiracy to violate the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962(d). The jury found that the racketeering
conspiracy—which included members and associates of a violent gang in Los
Angeles—involved murder, robbery, witness intimidation, and distribution of
controlled substances. Gordon was sentenced to 360 months of imprisonment.
Gordon now appeals his convictions and sentence. We have jurisdiction under 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
1. We reject Gordon’s generalized challenge to the judicial
administration of the Criminal Justice Act. See 18 U.S.C. § 3006A. Congress has
assigned oversight responsibility for the CJA to the district courts. Id. Gordon
argues that Congress thereby created a conflict between the district court and the
defense function, but his argument is essentially a policy disagreement with the
structure of the CJA. We are not free to “rewrite a constitutionally valid statutory
text.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017).
2. Nor does Gordon show any specific constitutional infirmity resulting
from the district court’s performance of its duties under the CJA in this case.
Gordon alleges judicial bias and a violation of due process. But the district court’s
“institutional responsibilities” under the CJA did not give it a “strong . . . motive”
to rule against Gordon. Alpha Epsilon Phi Tau Chapter Hous. Ass’n v. City of
Berkeley, 114 F.3d 840, 844 (9th Cir. 1997) (citation omitted). Gordon refers to
2 two adverse evidentiary rulings, but the rulings do not reflect error, much less
“actual impropriety or an appearance of impropriety.” Greenway v. Schriro, 653
F.3d 790, 806 (9th Cir. 2011).
Gordon also challenges the district court’s denial of funding for a
psychological evaluation before sentencing. Deciding whether expert services are
“necessary” under the CJA falls within the district court’s discretion. United
States v. Turner, 897 F.3d 1084, 1106–07 (9th Cir. 2018) (quoting 18 U.S.C.
§ 3006A(e)(1)). The district court abuses its discretion when “reasonably
competent counsel would have required the assistance of the requested expert for a
paying client,” and the defendant “was prejudiced by lack of expert assistance.”
Id. at 1106 (citation omitted). Here, Gordon has not shown prejudice. He received
a pre-trial mental-health evaluation, which the district court reviewed. The
presentence report summarized Gordon’s medical history, including mental health,
as well as his history of substance abuse. At sentencing, the district court discussed
Gordon’s difficult upbringing and recommended that the Bureau of Prisons
conduct a mental-health evaluation. Gordon does not show how a second mental-
health evaluation would have caused the district court to consider mitigating
factors that it had not already weighed.
3. We also reject Gordon’s generalized challenge to the Sentencing
Guidelines. The Supreme Court has upheld the authority of the United States
3 Sentencing Commission to promulgate the Guidelines. Mistretta v. United States,
488 U.S. 361, 412 (1989); see Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551
et seq.; 28 U.S.C. §§ 991–998. To the extent Gordon argues that the Commission
has not developed appropriate guidelines, see 28 U.S.C. § 994(c), he does not
identify which guidelines are inconsistent with the statute or how they affected his
sentencing.
Even if construed as a challenge to the substantive reasonableness of his
360-month term of imprisonment, Gordon’s argument is unavailing. See Gall v.
United States, 552 U.S. 38, 51 (2007). The district court carefully considered the
sentencing factors under 18 U.S.C. § 3553(a). Gordon’s within-Guidelines
sentence is substantively reasonable in light of those factors and the totality of the
circumstances. See United States v. Carty, 520 F.3d 984, 991–93 (9th Cir. 2008)
(en banc).
4. We are not persuaded by Gordon’s evidentiary challenges. First,
Gordon alleges two violations of the Confrontation Clause at trial. We are not
convinced that either example involved a testimonial statement, but even assuming
there was an error, it was minor compared to “the overall strength of the
prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). We are
satisfied beyond a reasonable doubt that any error did not contribute to the jury’s
verdict.
4 Second, the district court did not err in restricting Gordon’s testimony to
relevant matters that would not mislead the jury. See United States v. Moreno, 102
F.3d 994, 998 (9th Cir. 1996); see also Fed. R. Evid. 402, 403.
Third, the district court did not abuse its discretion in admitting photos and
law-enforcement testimony about the gang’s propensity for violence, gang tattoos
and graffiti, and gang operations. Gordon argues that the evidence was unfairly
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50267
Plaintiff-Appellee, D.C. No. 2:14-cr-00338-SJO-AB-57 v.
TONY GORDON, AKA Wodi, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding
Submitted October 15, 2019** Pasadena, California
Before: NGUYEN and MILLER, Circuit Judges, and VITALIANO,*** District Judge.
Following a jury trial, Tony Gordon was convicted of conspiracy to
distribute cocaine base and marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A)
* 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 Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. and 846, and conspiracy to violate the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962(d). The jury found that the racketeering
conspiracy—which included members and associates of a violent gang in Los
Angeles—involved murder, robbery, witness intimidation, and distribution of
controlled substances. Gordon was sentenced to 360 months of imprisonment.
Gordon now appeals his convictions and sentence. We have jurisdiction under 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
1. We reject Gordon’s generalized challenge to the judicial
administration of the Criminal Justice Act. See 18 U.S.C. § 3006A. Congress has
assigned oversight responsibility for the CJA to the district courts. Id. Gordon
argues that Congress thereby created a conflict between the district court and the
defense function, but his argument is essentially a policy disagreement with the
structure of the CJA. We are not free to “rewrite a constitutionally valid statutory
text.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017).
2. Nor does Gordon show any specific constitutional infirmity resulting
from the district court’s performance of its duties under the CJA in this case.
Gordon alleges judicial bias and a violation of due process. But the district court’s
“institutional responsibilities” under the CJA did not give it a “strong . . . motive”
to rule against Gordon. Alpha Epsilon Phi Tau Chapter Hous. Ass’n v. City of
Berkeley, 114 F.3d 840, 844 (9th Cir. 1997) (citation omitted). Gordon refers to
2 two adverse evidentiary rulings, but the rulings do not reflect error, much less
“actual impropriety or an appearance of impropriety.” Greenway v. Schriro, 653
F.3d 790, 806 (9th Cir. 2011).
Gordon also challenges the district court’s denial of funding for a
psychological evaluation before sentencing. Deciding whether expert services are
“necessary” under the CJA falls within the district court’s discretion. United
States v. Turner, 897 F.3d 1084, 1106–07 (9th Cir. 2018) (quoting 18 U.S.C.
§ 3006A(e)(1)). The district court abuses its discretion when “reasonably
competent counsel would have required the assistance of the requested expert for a
paying client,” and the defendant “was prejudiced by lack of expert assistance.”
Id. at 1106 (citation omitted). Here, Gordon has not shown prejudice. He received
a pre-trial mental-health evaluation, which the district court reviewed. The
presentence report summarized Gordon’s medical history, including mental health,
as well as his history of substance abuse. At sentencing, the district court discussed
Gordon’s difficult upbringing and recommended that the Bureau of Prisons
conduct a mental-health evaluation. Gordon does not show how a second mental-
health evaluation would have caused the district court to consider mitigating
factors that it had not already weighed.
3. We also reject Gordon’s generalized challenge to the Sentencing
Guidelines. The Supreme Court has upheld the authority of the United States
3 Sentencing Commission to promulgate the Guidelines. Mistretta v. United States,
488 U.S. 361, 412 (1989); see Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551
et seq.; 28 U.S.C. §§ 991–998. To the extent Gordon argues that the Commission
has not developed appropriate guidelines, see 28 U.S.C. § 994(c), he does not
identify which guidelines are inconsistent with the statute or how they affected his
sentencing.
Even if construed as a challenge to the substantive reasonableness of his
360-month term of imprisonment, Gordon’s argument is unavailing. See Gall v.
United States, 552 U.S. 38, 51 (2007). The district court carefully considered the
sentencing factors under 18 U.S.C. § 3553(a). Gordon’s within-Guidelines
sentence is substantively reasonable in light of those factors and the totality of the
circumstances. See United States v. Carty, 520 F.3d 984, 991–93 (9th Cir. 2008)
(en banc).
4. We are not persuaded by Gordon’s evidentiary challenges. First,
Gordon alleges two violations of the Confrontation Clause at trial. We are not
convinced that either example involved a testimonial statement, but even assuming
there was an error, it was minor compared to “the overall strength of the
prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). We are
satisfied beyond a reasonable doubt that any error did not contribute to the jury’s
verdict.
4 Second, the district court did not err in restricting Gordon’s testimony to
relevant matters that would not mislead the jury. See United States v. Moreno, 102
F.3d 994, 998 (9th Cir. 1996); see also Fed. R. Evid. 402, 403.
Third, the district court did not abuse its discretion in admitting photos and
law-enforcement testimony about the gang’s propensity for violence, gang tattoos
and graffiti, and gang operations. Gordon argues that the evidence was unfairly
cumulative, but we afford “great deference” to the district court’s Rule 403 rulings.
See United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc).
Any errors do not amount to cumulative error denying Gordon the right to a
fair trial. See United States v. de Cruz, 82 F.3d 856, 868 (9th Cir. 1996).
5. Gordon argues that the district court erred in giving a jury instruction
based on Pinkerton v. United States, 328 U.S. 640, 647–48 (1946). Pinkerton
permits the imposition of liability for a substantive act, not for a RICO conspiracy
itself, which is a separate offense. See Iannelli v. United States, 420 U.S. 770, 777
(1975) (“Traditionally the law has considered conspiracy and the completed
substantive offense to be separate crimes.”); Pinkerton, 328 U.S. at 643–44.
Because Gordon was not charged with any racketeering acts, he argues that it was
error to instruct the jury during the verdict phase about his co-conspirator liability
for those acts. The instruction may have been unnecessary, but even assuming that
it was erroneous, it was not prejudicial. The Pinkerton instruction did not purport
5 to instruct the jury on the elements of RICO conspiracy, and it did not supplant the
other instructions that correctly identified those elements.
6. We decline to consider Gordon’s suggestion of ineffective assistance
of counsel because we do not ordinarily consider such a claim on direct appeal.
See, e.g., United States v. Moreland, 622 F.3d 1147, 1157 (9th Cir. 2010). While
we may make an exception when the record is “sufficiently developed” or “the
legal representation is so inadequate that it obviously denies a defendant his Sixth
Amendment right to counsel,” United States v. Daychild, 357 F.3d 1082, 1095 (9th
Cir. 2004) (citation omitted), neither of those conditions is present. Gordon may
raise his claims of ineffective assistance in a proceeding under 28 U.S.C. § 2255.
See United States v. McGowan, 668 F.3d 601, 606 (9th Cir. 2012).
AFFIRMED.