United States of America v. Drew Michael Endacott

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NOT FOR PUBLICATION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.
DREW MICHAEL ENDACOTT,
Defendant - Appellant.
No. 09-50509
D.C. No. 2:08-cr-00813-PSG-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted March 8, 2012
Pasadena, California
Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
Drew Michael Endacott appeals his conviction for transportation and
possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(1);
2252A(a)(5)(B), respectively. Because the parties are familiar with the history of
the case, we need not recount it here. We affirm.
FILED
JUL 18 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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I
Endacott is not entitled to a reversal based on the jury’s exposure to extrinsic
evidence. There is no “reasonable possibility that the extrinsic material could have
affected the verdict.” United States v. Prime, 431 F.3d 1147, 1157 (9th Cir. 2005).
The extrinsic evidence received by some jurors was mitigated by the district
court’s curative instructions. Id. at 1158. More importantly, the evidence
introduced at trial against Endacott was very strong. United States v. Montes, 628
F.3d 1183, 1189 (9th Cir. 2011). We conclude that there was insufficient
prejudice to warrant reversal. Tong Xiong v. Felker, — F.3d —, 2012 WL
1994716, at *7–*8 (9th Cir. June 5, 2012).
The district court did not abuse its discretion by allowing the government to
introduce images of child pornography and excerpts from Endacott’s journal into
evidence. Federal Rule of Evidence 403 provides that evidence may be excluded if
“its probative value is substantially outweighed” by the danger of unfair prejudice.
Endacott stipulated that each of the images the government intended to introduce
into evidence was a “true and correct copy of a child pornography image.”
Endacott argues that his stipulation obviated the images’ probative value.
However, the stipulation was incomplete because Endacott did not stipulate that he
knew the images were in his possession or that he knew the images were of child

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pornography. United States v. Ganoe, 538 F.3d 1117, 1123 (9th Cir. 2008). The
district court did not abuse its discretion in determining that the images themselves
were indicia of Endacott’s knowledge.
The district court did not abuse its discretion in admitting Endacott’s journal
entries under Rule 403 because they were probative of Endacott’s state of mind, or
under Rule 404(b) because they related to Endacott’s defense in this case, potential
mistake.
The district court did not commit cumulative error by denying Endacott’s
motion for a mistrial and overruling his evidentiary objections. Thus, Endacott’s
trial was not fundamentally unfair. Jackson v. Brown, 513 F.3d 1057, 1085 (9th
Cir. 2008)
II
Endacott’s sentence was not procedurally flawed or substantively
unreasonable. The district court did not err procedurally. It properly considered
and explicitly referenced the 18 U.S.C. § 3553(a) sentencing factors on the record,
and it did not fail to recognize its discretionary authority to depart from the
sentencing guidelines for policy reasons. United States v. Henderson, 649 F.3d
955, 964 (9th Cir. 2011).

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The district court did not err substantively because Endacott’s sentence was
sufficient, but not greater than necessary, to accomplish the sentencing goals of §
3553(a). United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009).
AFFIRMED.

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