United States of America v. Virgil L. Burris

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VIRGIL L. BURRIS,
Defendant - Appellant.
No. 09-30048
D.C. No. 2:07-CR-00179-EJL-5
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted May 5, 2010**
Portland, Oregon
Before: KOZINSKI, Chief Judge, KLEINFELD and IKUTA, Circuit
Judges.
The district court didn’t err in allowing Burris’s counsel to withdraw the
motions to compel and to sever. Although a defendant has the right “to make
FILED
MAY 07 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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certain fundamental decisions” in his case, the withdrawal of the motions here was
not such a decision. Jones v. Barnes, 463 U.S. 745, 751 (1983).
The district court also correctly denied the motion for acquittal because there
was sufficient evidence that Burris was a member of the conspiracy and
responsible for the distribution of 500 grams of methamphetamine. See United
States v. Duran, 189 F.3d 1071, 1078 (9th Cir. 1999). Determining whether
Swan’s testimony was credible is precisely the sort of judgment reserved for the
jury that we will not reconsider. See United States v. Yossunthorn, 167 F.3d 1267,
1270 (9th Cir. 1999). Burris’s selective quotation of the district court’s statement
at sentencing doesn’t show that Swan’s testimony is “incredible or insubstantial on
its face.” Id. (internal quotation marks omitted).
Venue was proper in Idaho because controlled purchases of
methamphetamine occurred there. See United States v. Meyers, 847 F.2d 1408,
1411 (9th Cir. 1988). Burris cites Federal Rule of Criminal Procedure 5(c)(2), but
this rule governs initial appearances, not trial venues.
AFFIRMED.

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