United States of America v. Christian Thomas Gochis

* 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NOT FOR PUBLICATION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.
CHRISTIAN THOMAS GOCHIS,
Defendant - Appellant.
No. 09-30437
D.C. No. 6:09-cr-00004-CCL-3
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVELIN EUGENE MOORE,
Defendant - Appellant.
No. 09-30450
D.C. No. 6:09-cr-00004-CCL-2
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted November 2, 2010
Portland, Oregon
FILED
NOV 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The Honorable David C. Bury, United States District Judge for the District
of Arizona, sitting by designation.
Before: W. FLETCHER and FISHER, Circuit Judges, and BURY, District Judge. **
Defendants Christian Gochis and Develin Moore appeal their convictions for
conspiracy to manufacture and distribute marijuana in violation of 21 U.S.C.
§ 846. Gochis also appeals his sentence. We affirm.
1. Gochis’ Conviction
The district court did not err in giving a jury instruction addressing the
relationship of state and federal law on marijuana. The instruction accurately
characterized the law and did not convey any undue emphasis. See, e.g., Monsma
v. Cent. Mut. Ins. Co., 392 F.2d 49, 52 (9th Cir. 1968).
As Gochis conceded during oral argument, the district court did not abuse its
discretion by denying Gochis’ motion for change of venue or continuance of trial
due to pretrial publicity. The pretrial publicity consisted of only a single
newspaper article, not a “barrage of inflammatory publicity,” the article did not
contain inflammatory prejudicial information and the article was factual in nature.
Randolph v. California, 380 F.3d 1133, 1142 (9th Cir. 2004) (quoting Ainsworth v.
Calderon, 138 F.3d 787, 795 (9th Cir. 1998)) (quotation marks omitted).
2. Gochis’ Sentence
Gochis’ sentence was not disproportionate. He received the mandatory

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minimum 60-month sentence – the same sentence given to Moore, who, like
Gochis, did not cooperate with the government. Although another co-defendant,
who cooperated with the government and testified against Gochis and Moore,
received a 13-month sentence for the same crime, a “sentencing disparity based on
cooperation is not unreasonable.” United States v. Carter, 560 F.3d 1107, 1121
(9th Cir. 2009).
The district court did not abuse its discretion when it withheld application of
the 18 U.S.C. § 3553(f) safety valve. The district court based its decision on
Gochis’ persistent denial of involvement in the conspiracy, and failure to truthfully
provide the government with all information he had concerning the offenses,
despite evidence that Gochis was an active participant in the conspiracy. In
addition, the district court found there was credible evidence that Gochis organized
and supervised the marijuana grow operation. In sum, Gochis did not meet at least
two of the five criteria to qualify for safety valve application listed in 18 U.S.C.
§ 3553(f).
3. Moore’s Conviction
Sufficient evidence supports Moore’s conviction because the evidence,
viewed in the light most favorable to the prosecution, demonstrated that Moore
agreed to move to Montana to work on a marijuana grow operation, helped set up
the greenhouse where the marijuana would be grown, traveled to California to help

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bring marijuana plants back to Montana, personally tended to the plants and agreed
with his co-conspirators that he would receive a portion of the profits from the
marijuana’s sale. This evidence was sufficient to permit any rational trier of fact to
find the essential elements of the crime beyond a reasonable doubt. See United
States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
The district court did not abuse its discretion by admitting into evidence
against Moore’s co-defendant, Gochis, a video depicting the marijuana grow
operation. The evidence was not more prejudicial than probative because it was
highly probative as to Gochis’ guilt and the district court instructed the jury the
evidence could be considered only against Gochis. See United States v.
Gallenardo, 579 F.3d 1076, 1082 (9th Cir. 2009) (“We . . . presume that the jury
followed the district court’s limiting instruction.”).
AFFIRMED.

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