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United States v. McCaleb

January 13, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MARVIN MCCALEB, AKA MARVIN DARRYL MCCALEB; MARVIN DARELL MCCALEB; MARVIN DARRELL MCCALEB; DARY MCCALEB; MARVIN MCCALEB; MARVIN DARRYL MCCABB; MORGAN; SAMMY JACKSON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding. D.C. No.CR-03-00849-CBM-1.

The opinion of the court was delivered by: Bright, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted November 18, 2008 -- Pasadena, California

Before: Myron H. Bright,*fn1 Stephen S. Trott, and Michael Daly Hawkins, Circuit Judges.

Appellant Marvin McCaleb challenges his drug-related convictions and sentence to life imprisonment, asserting that the district court (1) improperly instructed the jury, (2) abused its discretion by admitting certain expert-witness testimony, and (3) relied on unproven prior convictions. Because the district court did not (1) plainly err in its jury instructions, (2) abuse its discretion by admitting certain expert-witness testimony, or (3) improperly rely on unproven prior convictions at sentencing, we affirm.

FACTS AND PROCEDURAL HISTORY

In November 2004, a federal grand jury returned an indictment against McCaleb and other individuals. Count One of the indictment charged McCaleb and other defendants with conspiracy to manufacture, to aid and abet the manufacture of, to distribute, and to possess with intent to distribute, phencyclidine ("PCP"), in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). Count Two of the indictment charged McCaleb and two other defendants with possession of ethyl ether, a precursor chemical, knowing and having reasonable cause to believe that it would be used to manufacture PCP, in violation of 21 U.S.C. § 841(c)(2).

McCaleb and a co-defendant's trial began in March 2005. At trial, McCaleb conceded guilt on the lesser-included offense in Count One, conspiracy to possess ethyl ether, and Count Two. In April 2005, the jury returned guilty verdicts on Counts One and Two. Ambiguously, the jury also found McCaleb guilty of Count One's lesser-included offense. After the clerk read the verdict in open court, the district court called counsel to sidebar and stated the following:

According to our instructions, the jury should have only answered [the lesser-included offense] if they found the defendant not guilty of Count 1. So what I would be inclined to do is just to indicate to them that they should go back and give them another verdict form, and they should be clear as to whether they find the defendant guilty or not guilty as to Count 1. And if they find the defendant not guilty as to Count 1, then they shouldn't answer [the question about the lesser-included offense].

So I would . . . give them another verdict form and ask them to be clear about that and then to return that.

Without objection from either party, the district court told the jury the following: "Ladies and gentlemen of the jury, in looking at the verdict forms that you have returned for each of the defendants, it is unclear as to what you intended your verdict to be as to Count 1 of the indictment." The district court then stated:

So, if you intended as to Count 1 to find the defendants not guilty, then of course you would consider the necessary lesser included, and you would advise the Court as to your verdict.

You would then date, sign the verdict form, and return it.

If - on the other hand, if you find the defendants guilty as to Count 1, then you don't indicate anything in the blank for the necessary lesser included. I think that's consistent with the ...


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