United States of America v. Mala Travon Shorty

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MALA TRAVON SHORTY,
Defendant-Appellant.
No. 14-10390
D.C. No. 3:10-cr-08100-GMS-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted November 18, 2015**
San Francisco, California
Before: McKEOWN, RAWLINSON, and PARKER,*** Circuit Judges.
Defendant-Appellant Mala Shorty (“Shorty”) appeals from a judgment of
conviction, following a bench trial, on two counts of aiding and abetting a False
FILED
JAN 07 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.
*** The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.

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Statement Concerning Information That Must Be Kept By Firearms Dealer and
three counts of Felon in Possession of a Firearm and/or Ammunition, two counts of
False Statement in Connection with Acquisition of a Firearm, and an order of
forfeiture of illegally owned firearms. See 18 U.S.C. §§ 922(a)(6), 922(g)(1),
924(a)(1)(A), 924(a)(2).
Shorty argues that the application for the warrant to search his home was
legally insufficient because it failed to establish probable cause to search and
because it contained materially false or misleading statements and omissions. We
choose not to consider this argument because on a prior appeal to this Court,
Shorty did not challenge the search warrant. “When a party could have raised an
issue, in a prior appeal but did not, a court later hearing the same case need not
consider the matter.” United States v. Wright, 716 F.2d 549, 550 (9th Cir. 1983).
Shorty argues that even if the search warrant was not challenged in the first
appeal, the Supreme Court has held that we may nonetheless consider the issue if it
is both “antecedent to . . . and ultimately dispositive of” the dispute before us. U.S.
Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993)
(alteration in original) (internal quotation marks omitted) (quoting Arcadia v. Ohio
Power Co., 498 U.S. 73, 77 (1990)). Bank of Oregon does not change the
outcome. The issue there was merely whether a party on appeal could argue a new
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theory regarding a statute whose application the party had disputed all along. See
id. at 446. The case does not hold that a previously waived argument can be raised
on a subsequent appeal merely because its resolution would dispose of the appeal
before it.
Shorty argues that it was improper for the same judge to hear his case both
before and after this Court first reversed and remanded. Where, as here, the issue
is first raised on appeal, this Court reviews a district court judge’s failure to recuse
himself for plain error. United States v. Spangle, 626 F.3d 488, 495 (9th Cir.
2010).
A district judge must disqualify himself “in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Similarly, due
process will be offended where a judge’s interest in a case “poses such a risk of
actual bias or prejudgment that the practice must be forbidden if the guarantee of
due process is to be adequately implemented.” Withrow v. Larkin, 421 U.S. 35, 47
(1975). We see no merit to Shorty’s argument, and certainly no plain error. He
twice chose to waive a jury and to have his case tried to the Court. He did so the
second time despite knowing, and being warned, that the same judge who had
previously found him guilty on the same facts would preside at the second trial.
Shorty raises two arguments regarding sufficiency of the evidence. First, he
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argues that there was no evidence proving that he had a prior domestic conviction
punishable by a term of imprisonment exceeding one year, as required for a
conviction under 18 U.S.C. § 922(g)(1). The parties stipulated, prior to trial, that
“the defendant was convicted of a crime punishable by a term of imprisonment
exceeding one year.” Shorty points out that § 922(g)(1) only applies to domestic
convictions, Small v. United States, 544 U.S. 385, 390–91 (2005), and that the
stipulation makes no such designation. But the stipulation precisely tracks the
language of § 922(g)(1), and we have held that a similar stipulation was sufficient
to sustain a conviction under § 922(g)(1). United States v. Hernandez, 27 F.3d
1403, 1407–08 (9th Cir. 1994).
Shorty also argues that the Supreme Court’s decision in Rosemond v. United
States, 134 S. Ct. 1240 (2014), compels us to reconsider our decision in the first
appeal that there was sufficient evidence upon which to convict him for aiding and
abetting false statements made in connection with the purchase of a firearm.
Rosemond merely held that it was error to fail to instruct the jury that a defendant
charged with aiding and abetting a drug trafficking crime involving a firearm may
only be convicted if the jury found he knew prior to the inception of the crime that
his cohort was carrying a firearm. Id. at 1251–52. By contrast, the issue raised in
Shorty’s first appeal, and again here, is whether he possessed, at any time, the
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requisite specific intent to aid and abet his cohort’s crime. We found in Shorty’s
first appeal that he did, and consequently Rosemond is not relevant. We, therefore,
see no basis to reconsider our holding that the evidence before the lower court was
sufficient to convict Shorty for aiding and abetting a false statement.
AFFIRMED.
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