United States of America v. Marc Milles

This disposition is not appropriate for publication and is not precedent*
except as provided by 9TH CIR. R. 36-3.
** The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARC MILLES,
Defendant - Appellant.
No. 09-10119
D.C. No. 1:08-CR-00162-HG-1
MEMORANDUM *
Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding
Argued and Submitted January 12, 2010
San Francisco, California
Before: BRIGHT, HAWKINS, and M. SMITH, Circuit Judges.**
Appellant Marc Milles challenges his conviction and sentence of 16 months’
imprisonment after trial by jury for theft of government funds and conspiracy to
steal government funds in violation of 18 U.S.C. §§ 641, 371. On appeal, Milles
FILED
JAN 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Milles did not renew his motion for acquittal at the close of trial and1
the parties dispute whether we review his claim de novo or for plain error.
Compare United States v. Cruz, 554 F.3d 840, 844 (9th Cir. 2009) (reviewing
sufficiency challenge for plain error because the defendant did not renew motion
for acquittal) with Esquivel-Ortega, 484 F.3d at 1225 (reviewing sufficiency
challenge de novo because renewing motion for acquittal would have been “empty
ritual”). Because Milles cannot prevail under de novo review, we need not resolve
this dispute.
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contends (1) the evidence was insufficient to prove he specifically intended and
conspired to steal government funds; (2) the jury failed to adequately consider the
evidence; and (3) prejudice from prosecutorial misconduct. We affirm.
I.
Milles challenges the sufficiency of the evidence, arguing there was no
showing he possessed the requisite intent to steal funds, nor that he conspired to
steal funds.
In reviewing the sufficiency of the evidence, this court examines the
evidence in the light most favorable to the conviction and asks whether a rational
jury could have found the defendant guilty beyond a reasonable doubt. United
States v. Esquivel-Ortega, 484 F.3d 1221, 1224 (9th Cir. 2007). We assume the1
jury drew reasonable inferences, resolved evidentiary conflicts, and determined
witness credibility in manners which support the verdict. United States v.
Kranovich, 401 F.3d 1107, 1112-13 (9th Cir. 2005).

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Applying this standard, ample evidence supports the jury’s verdict. Karl
Reyes, Milles’s coconspirator, testified that over a period of several years he
received government pay without working the hours shown on his time cards and
that he shared one-half of the proceeds with Milles. Reyes stated he gave Milles
half “[b]ecause that was our – that was our plan from the beginning.” Other
witnesses testified that Milles altered and signed Reyes’s time cards and testified
that they never met or saw Reyes during the periods he supposedly worked.
Having thoroughly reviewed the record, we conclude a rational jury could have
found Milles guilty beyond reasonable doubt.
II.
Milles next argues that the jury failed to discharge its duty because it
returned a verdict in a little over thirty minutes. This argument is without merit.
See United States v. Anderson, 561 F.2d 1301, 1303 (9th Cir. 1977) (“There is no
established rule that any specified time is required to reach unanimity.
Defendant’s argument is a two-edged sword. The jury may have thought there was
not even a shadow of doubt as to guilt.”).

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We note that at oral argument the government assured us that remedial2
action has been taken to ensure that the conduct described will not happen again in
the trial of cases in the federal courts of Hawaii.
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III.
Milles argues that prosecutorial misconduct deprived him a fair trial. There
is no doubt the prosecutors acted improperly.2
After a noon recess on the fourth day of trial, defense counsel found a
document that contained questions and answers for a government witness, Mr.
Bergmann, who had testified earlier that morning. Defense counsel brought the
document to the court’s attention. The prosecutors admitted giving Bergmann a
copy of the document approximately thirty minutes before he testified. Upon
inquiry by the district court, the prosecutors responded that no other witness was
given a similar document. Defense counsel moved to strike Bergmann’s testimony
or alternatively for a mistrial. In further proceedings on this motion, defense
counsel suggested that had she known of the document’s existence, she would have
cross-examined Bergmann differently. The district court suggested recalling
Bergmann for additional cross-examination. Defense counsel stated she wished to
examine Bergmann about the preparation process and to impeach him. No further
request was made for a mistrial and Bergmann was recalled and examined.

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The parties agree the underlying conduct was improper, but dispute whether
Milles suffered prejudice. Generally, “prosecutorial misconduct invites reversal if
it appears more probable than not that the alleged misconduct affected the jury’s
verdict.” United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990); see United
States v. Sayakhom, 186 F.3d 928, 945 (9th Cir. 1999) (holding defendant did not
show that the alleged coaching materially affected the outcome of the trial and
stating “[c]ross-examination and argument are the primary tools for addressing
improper witness coaching”).
Though highly improper, the prosecutors’ misconduct did not deny Milles
his right to a fair trial. See Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he
touchstone of due process analysis in cases of alleged prosecutorial misconduct is
the fairness of the trial, not the culpability of the prosecutor.”). First, nothing in
the record suggests prosecutors provided any other witness with a “script.” In fact,
the prosecutors denied so doing when asked by the district court. Second, defense
counsel agreed to the remedy of additional cross-examination and examined
Bergmann regarding the relationship between his testimony and the document.
Third, Bergmann’s testimony largely corresponds with a statement he made to the
government in 2006. Finally, there was substantial evidence of Milles’s guilt

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without Bergmann’s testimony. We thus conclude the prosecutors’ misconduct did
not prejudice Milles.
AFFIRMED.

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