United States of America v. Eric McDavid

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NOT FOR PUBLICATION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.
ERIC MCDAVID,
Defendant - Appellant.
No. 08-10250
D.C. No. 2:06-cr-00035-MCE-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted August 9, 2010
San Francisco, California
Before: GRABER, CALLAHAN, and BEA, Circuit Judges.
A jury convicted Eric McDavid of conspiring to bomb one or more targets,
including a federal facility for tree genetics, a federal dam and fish hatchery, and
cell phone towers, in violation of 18 U.S.C. § 844(n). McDavid appeals his
FILED
SEP 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Because the parties are familiar with the facts, we repeat them here only as1
necessary to the disposition of the case.
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conviction and his sentence of 235 months’ imprisonment on eight grounds. We
have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.1
1. Jury Instruction Errors
Primarily, McDavid asserts that he was entrapped by Anna, an undercover
government agent, and that the district court committed reversible error in
instructing the jury on his entrapment defense. During its deliberations, the jury
expressed particular confusion over whether the appropriate time frame for
assessing entrapment was in August 2004, when McDavid first met Anna, or in
June 2005, when McDavid and Anna first discussed the bombing plan. Among
other questions about entrapment, the jury asked “Was Anna considered a
government agent in Aug. 2004? If not, when did she become one?” The district
court orally responded “Yes,” meaning that Anna was considered an agent in
August 2004. The court later provided the jury with a typed copy of its response
that mistakenly stated “No” in answer to the same question.
The court’s “No” response could have been interpreted as (1) a clerical
mistake, given the court’s prior oral “Yes” response and the fact that the court
neglected to answer the second part of the question as to when Anna became an

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agent; (2) a partial response indicating that Anna was not considered an agent in
August 2004, but leaving unanswered when Anna became an agent; or (3) a
complete response indicating that Anna was not an agent in August 2004 and never
became an agent. McDavid contends that the jury’s interpretation was the last, and
thus the “No” response effectively eliminated his entrapment defense.
We determine that the jury did not interpret the typed response as indicating
that Anna was never an agent. First, as the district court noted when it denied
McDavid’s motion for a new trial, the jurors would have asked a follow-up
question for clarification if the incorrect typed response confused them. Indeed, it
would be completely inconsistent for the jury to have thought that the incorrect
response meant that Anna was never an agent. The jury would have had to
disregard an overwhelming amount of evidence at trial showing that Anna was
recruited by the FBI, was instructed by them at every step of the way, had her car
wired, arranged for the wired safe house, worried about her cover being blown,
was paid for her undercover work, and talked openly at trial about her undercover
role. Further, the jury would have had to disregard the court’s prior correct oral
response that Anna was an agent in August 2004 and the instructions they received
about entrapment. Moreover, while the prosecution and defense disputed the
proper time frame for entrapment in their closing arguments, neither contended that

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In determining the effect of the incorrect response, we may not consider2
the post-verdict juror declarations relied upon by McDavid. Fed. R. Evid. 606(b);
United States v. Span, 75 F.3d 1383, 1390 n.8 (9th Cir. 1996) (juror statements
inadmissible to show jury would have acquitted if properly instructed).
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Anna was not an agent and both sides agreed that the jury could consider whether
Anna entrapped McDavid after June 2005. Viewing the incorrect typed response
in the context of the instructions and trial as a whole, we are unpersuaded that the
jury was led to believe Anna was never an agent, although the jury may have been
confused as to when she became an agent.2
To the extent that the typed response confused the jury as to when to
consider Anna an agent for purposes of entrapment, any error was harmless
because a rational jury would have rejected the entrapment defense even if the
typed response had correctly reflected that Anna was an agent as of August 2004.
See United States v. Cherer, 513 F.3d 1150, 1155 (9th Cir. 2008) (“Erroneous jury
instructions constitute harmless error if it is ‘clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error.’”). If a
defendant is predisposed to commit a crime, then the defendant cannot be
considered entrapped, even if he was induced. United States v. Jones, 231 F.3d
508, 518 (9th Cir. 2000). The five factors we use to determine predisposition
indicate that McDavid was predisposed.

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The first factor for predisposition is the defendant’s character and reputation.
Id. While the jury heard testimony from McDavid’s sister and friend about
McDavid’s peaceful and gentle nature, the testimony was overwhelmed by more
specific evidence that McDavid had become radicalized, believed that nonviolent
protests were ineffective, and was undaunted by the possibility of accidental deaths
from his actions. The second factor is whether the government suggested the
crime. Id. Anna and the co-conspirators testified that McDavid initiated the
bombing campaign and invited them to join. The third factor is whether there was
a profit motive. Id. McDavid seemed motivated by a strongly held anarchic
ideology, which is arguably a stronger indicator of predisposition than a profit
motive.
The fourth and most important factor is whether the defendant showed any
reluctance. Id. The evidence shows that McDavid was an active participant, if not
the leader, in targeting the Institute of Forest Genetics (“IFG”), conducting
reconnaissance, and attempting to construct a bomb. At trial, co-conspirator
Zachary Jenson testified that McDavid “seemed most like the brains” of the
operation because he “was coming up with most of the ideas.”
The final factor for predisposition is the nature of the inducement. Id.
McDavid contends that part of Anna’s inducement was to string him along

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romantically, similar to the facts in United States v. Poehlman, 217 F.3d 692, 702
(9th Cir. 2000). This case is distinguishable from Poehlman because there is no
evidence that Anna initiated the idea of the illegal conduct or that McDavid was
reluctant to engage in it. See id. at 704 (noting that the agent repeatedly suggested
the illegal activity, the defendant showed no interest prior to the suggestions, and
the defendant initially resisted).
Anna’s role in supplying means for the conspiracy did not entitle McDavid
to a jury instruction on his “wherewithal” to commit the crime without Anna. In
Poehlman, we described predisposition as “the defendant’s willingness to commit
the offense prior to being contacted by government agents, coupled with the
wherewithal to do so[,]” id. at 698, but our decisions before and after Poehlman
have not included wherewithal as a factor for predisposition. See, e.g., United
States v. Thickstun, 110 F.3d 1394, 1397-98 (9th Cir. 1997) (rejecting wherewithal
argument); Jones, 231 F.3d at 518 (listing five-factor test for predisposition, which
does not include wherewithal). Even if a wherewithal instruction is available, the
court did not err in not giving such an instruction because there was ample
evidence that the group could have committed the crime without Anna, even if it
would have taken more time or thriftiness.

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McDavid’s other challenges to the jury instructions are unpersuasive, as
well. McDavid contends that the district court erred by defining June 2005 as the
relevant time frame for the jury to decide whether he was predisposed. Even if we
accepted McDavid’s contention, the error would be harmless. The evidence from
August 2004 forward still demonstrates that McDavid was predisposed.
Separately, it was not in error for the district court to answer the jury’s questions
about the time frame for predisposition without consulting the defense because the
court simply reiterated the jury instructions it had already discussed with counsel.
Finally, McDavid contends that the district court erred in refusing to give an
instruction that adequately defined inducement. McDavid, however, does not
allege how the model instruction given by the court was inadequate to cover his
entrapment defense, and, at trial, failed to proffer a separate inducement
instruction. Accordingly, McDavid’s argument is unpersuasive. See United States
v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990) (failure to instruct on defense
theory is harmless if other instructions adequately cover proposed instructions).
2. Entrapment as a Matter of Law
To prove that he was entrapped as a matter of law, McDavid must show that,
“viewing the evidence in the light most favorable to the government, no reasonable
jury could have found in favor of the government as to inducement or lack of

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predisposition.” Poehlman, 217 F.3d at 698. Here, the evidence shows McDavid
was predisposed, and thus he was not entrapped.
3. Sufficiency of the Evidence
McDavid contends that there was insufficient evidence to show that he and
the others agreed to at least one of the targets listed in the indictment and to use
explosives. To the contrary, the evidence showed that McDavid suggested
targeting the IFG, and the group discussed and researched the IFG extensively.
McDavid also initiated the idea of using explosives, and the group discussed bomb
types, bought materials, and attempted to make an explosive. Thus, viewing the
evidence in the light most favorable to the prosecution, a rational trier of fact could
have found beyond a reasonable doubt that McDavid was guilty of conspiring to
use explosives against one or more of the targets in the indictment, particularly the
IFG. See United States v. Everett, 692 F.2d 596, 601 (9th Cir. 1982) (reviewing
sufficiency of evidence to support conspiracy conviction).
4. Lesser Included Offense
McDavid contends that he was entitled to an instruction on conspiracy
against the United States pursuant to 18 U.S.C. § 371, as a lesser included offense
of § 844(n). He was entitled to such an instruction only if the evidence would
permit a rational jury to find him guilty of the lesser included offense, § 371, and

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acquit him of the greater, § 844(n). See United States v. Arnt, 474 F.3d 1159, 1163
(9th Cir. 2007). Here, a rational jury could not have done so because it would have
had to find all of the elements necessary for a conviction under § 844(n) in order to
convict McDavid under § 371. Section 371 requires a conspiracy to commit an
offense against the United States. The only type of offense against the United
States described in the indictment and at trial was the group’s plan to use bombs
against the federal targets. Thus, a rational jury would have had to find that
McDavid conspired to bomb federal targets—a violation of § 844(n)—in order to
find him guilty of conspiring to commit an offense against the United States for
purposes of § 371. McDavid was not entitled to an instruction under § 371.
5. Constructive Amendment or Fatal Variance
McDavid asserts there was constructive amendment of the indictment or
fatal variance because the government failed to prove that he and the others agreed
to at least one of the targets listed in the indictment, including the IFG. This
argument fails because we have determined there was sufficient evidence to
support the finding that the group agreed to at least one of the targets.
6. Denial of Motions to Suppress and Dismiss
McDavid contends that the warrantless audio-video surveillance recordings
from the safe house should have been suppressed under the Fourth Amendment

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because he was living in the house and had a reasonable privacy expectation based
on his relationship with Anna. This argument fails because he and the others were
at the safe house to plan and implement the bombing campaign and bore the risk
that Anna, who arranged for the safe house, was an informant. See United States v.
Shryock, 342 F.3d 948, 978 (9th Cir. 2003) (concluding that warrantless video
surveillance of mafia meetings in hotel rooms rented by an informant did not
violate defendant’s objectively reasonable privacy interests). McDavid also claims
that the government taped conversations while Anna was not in the room;
however, there is no indication that any such evidence was introduced at trial or
reflected in witness testimony. Accordingly, the court did not err in denying
McDavid’s motion to suppress.
McDavid also contends that the indictment should have been dismissed
based on outrageous conduct by the government. We review de novo whether
McDavid has met the “‘extremely high standard’” of proving “that the
government’s conduct was ‘so excessive, flagrant, scandalous, intolerable, and
offensive as to violate due process.’” United States v. Edmonds, 103 F.3d 822,
825, 826 (9th Cir. 1996) (citation omitted). We have already determined that
Anna’s actions did not amount to entrapment. Accordingly, her actions are
insufficient to meet the higher standard for proving outrageous government

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conduct. See United States v. Citro, 842 F.2d 1149, 1152-53 (9th Cir. 1988)
(explaining that the defense of outrageous government conduct is similar to
entrapment but a much higher standard). Further, McDavid contends that it was
outrageous conduct for Anna to ask him about a friend of his who was prosecuted
for burning buildings in the name of the Earth Liberation Front, although Anna
knew McDavid had been advised by an attorney not to discuss the case. McDavid
has not shown how Anna’s questions about his friend prejudiced him. See United
States v. Stringer, 535 F.3d 929, 941 (9th Cir.), cert. denied, 129 S. Ct. 662 (2008)
(to establish outrageous government conduct based on an intrusion into the
attorney client relationship, defendant must show actual and substantial prejudice).
McDavid’s remaining challenges to the denial of his motion to dismiss are
not meritorious. As noted, the warrantless taping was legal, and McDavid has not
argued why it would be outrageous despite being legal. Moreover, the U.S.
Attorney’s press conferences and resulting media coverage contained fair factual
summaries of the indictment. Finally, the U.S. Attorney’s statements about
defense counsel’s involvement in another case and possible conflict of interest
were neither inappropriate nor prejudicial given that the same attorney has
remained McDavid’s counsel throughout, including on appeal.

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7. Cumulative Error
McDavid asserts as cumulative error that the district court abused its
discretion by (1) admitting testimony from Officer Bruce Naliboff regarding “eco
terror” groups and the anarchist movement, and (2) admitting bad act and
unfavorable character evidence while limiting favorable character evidence to June
2005 forward. Contrary to McDavid’s contention, Naliboff’s non-scientific
testimony was not governed by Daubert v. Merrell Dow Pharms., 509 U.S. 579,
592 (1993), and, in any event, Daubert does not require an admissibility hearing.
Millenkamp v. Davisco Foods Int’l, Inc., 562 F.3d 971, 978-79 (9th Cir. 2009).
Additionally, McDavid has failed to indicate how Naliboff’s testimony was
unfairly prejudicial or how any prejudice outweighed the testimony’s probative
value. See United States v. Blitz, 151 F.3d 1002, 1008-09 (9th Cir. 1998).
Moreover, McDavid has not identified bad act or character evidence that was
admitted or excluded, and, even if he had, “[o]ne error is not cumulative error.”
United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).
8. Sentencing
McDavid asserts that the district court improperly calculated the Sentencing
Guidelines range and failed to consider the factors set forth in 18 U.S.C. § 3553(a).
Under the Guidelines, the base level for an offense involving arson or explosives

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directed at destroying a government or infrastructure facility is 24. U.S.S.G.
§ 2K1.4(a)(1)(B). Although McDavid argues that the jury did not specifically find
that he agreed to the targets or to use explosives, in order to convict McDavid, the
jury had to find that he conspired to damage or destroy, by fire or explosive,
government property or property used in interstate commerce. See 18 U.S.C.
§ 844(f)(1), (i), (n). Thus, the conviction supports the base level of 24.
Additionally, McDavid contends the terrorism enhancement is inapplicable
because the conspirators’ intention to affect or retaliate against the government was
not established by the evidence. See 18 U.S.C. § 2332b(g)(5)(A) (defining crime
of terrorism); U.S.S.G. § 3A1.4 (enhancement for crime of terrorism). To the
contrary, at sentencing, the district court noted that the group had discussed a
number of different ways to disrupt the government and the economy, that the
object of the conspiracy was federal facilities, and that McDavid had clearly
expressed his goals and objectives in disrupting the government. Viewing the
evidence as a whole, these findings supporting the enhancement were not clearly
erroneous. See United States v. Tankersley, 537 F.3d 1100, 1110 (9th Cir. 2008)
(reviewing the district court’s findings of fact in support of a sentence for clear
error).

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Finally, the record reflects that the district court adequately considered
McDavid’s § 3553(a)(2) arguments for a reduced sentence. Cf. United States v.
Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc) (although the district court
should address defendant’s specific § 3553(a) arguments, it is presumed to have
considered all the factors and “need not tick off” each one). The district court
addressed entrapment, the juror statements, and the probation officer’s
recommendation. The court concluded that even though McDavid had no criminal
history, the nature of the offense was “extremely serious” and overrode evidence of
McDavid’s peaceful qualities. The district court also considered similarly situated
defendants and found that there were comparable, and even substantially longer,
sentences. In sum, McDavid fails to show that the sentence was an abuse of
discretion. See id. at 993 (reviewing sentence for abuse of discretion).
McDavid’s conviction and sentence are AFFIRMED.

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