United States of America v. Tajma De Marcus Murphy

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAJMA DE MARCUS MURPHY,
Defendant - Appellant.
No. 08-10231
D.C. No. 4:05-cr-01125-RCC-JJM
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted November 3, 2009
San Francisco, California
Before: HUG, RYMER and McKEOWN, Circuit Judges.
Tajma De Marcus Murphy appeals his conviction and sentence on charges of
importing cocaine. We affirm.
I
FILED
NOV 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Although the parties dispute whether Murphy preserved an objection to
admissibility of prior-act evidence and thus whether our review is de novo or for
abuse of discretion, we see no reversible error regardless of which standard is
applied. In context, Murphy’s statement to Agent Stevens that he had previously
been recruited to drive loads across the border as well as to drive loads from
Nogales and Rio Rico to Tucson helped explain how and why he became an
informant. Murphy’s position was that he made no such statement and the
testimony was inadmissible because it was false; the jury disbelieved him. He did
not otherwise argue that admitting the statement offended Rule 404(b) or Rule 403
and we cannot see how it plainly did. Nor did the district court err by failing to
give a limiting instruction given the way the testimony unfolded. In any event, the
court’s general instructions admonished the jury that Murphy was on trial only for
the crimes charged in the indictment, not for any other activities. See United States
v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987).
II
Murphy argues that the district court failed to recognize it had authority to
consider substantial assistance and depart even in the absence of a motion pursuant
to U.S.S.G. § 5K1.1. However, the issue was not so cleanly presented to the

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district court. The court in fact gave a sentence that was lower than the guidelines
range, and did so in part after looking at how Murphy got involved in the first
place and considering that law enforcement asked him to do work. The
government acknowledged Murphy’s substantial assistance at sentencing. Cf.
United States v. Khoury, 62 F.3d 1138, 1140 (9th Cir. 1995). To the extent
Murphy claims that the government withheld its § 5K1.1 motion for improper
reasons, there is no support for this in the record. United States v. Murphy, 65 F.3d
758, 762-63 (9th Cir. 1995).
AFFIRMED.

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