United States of America v. Odell Tony Adams

This disposition is not appropriate for publication and is not precedent except as*
provided by 9th Cir. R. 36-3.
The Honorable Charles R. Breyer, United States District Judge for the Northern**
District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ODELL TONY ADAMS,
Defendant - Appellant.
No. 10-30133
D.C. No. 3:09-cr-279-MO
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted January 13, 2011
Seattle, Washington
Before: GRABER and M. SMITH, Circuit Judges, and BREYER, District**
Judge.
Defendant -Appellant Odell Tony Adams appeals from a judgment of
conviction and sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
Adams raises three claims of error. First, that a mistrial should have been
FILED
FEB 15 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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declared because of prosecution statements during rebuttal that allegedly shifted
the burden of proof to Adams. Second, that the district court should not have
accepted the verdict because of an outstanding question from the jury. Third, that
the district court procedurally and/or substantively erred in imposing the sentence.
With respect to Adams’s first claim of error, the district court did not abuse
its discretion in declining to grant a mistrial because the prosecution’s rebuttal
pointing out a lack of evidence to support various defense theories of the case did
not cross the line from permissible advocacy to impermissible burden shifting.
See United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991); United States v.
Segna, 555 F.2d 226, 230 (9th Cir. 1977).
Nor is there reversible error in the district court’s decision to accept the
verdict notwithstanding an outstanding jury question that the district court did not
have an opportunity to respond to before the jury returned its verdict. The district
court proposed to tell the jurors in response to their question that it could not
provide any further instruction because the issues they inquired about were up to
them to decide. Both counsel agreed to this approach. The court’s failure to
respond was not structural error because the jury’s note did not reveal “actual
confusion about the law.” Beardslee v. Woodford, 358 F.3d 560, 575 (9th Cir.
2004). The practical effect of what actually happened (the jury was provided no

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further instruction) is identical to what the parties agreed to (the district court
telling the jurors that they would be provided no further instruction). Accordingly,
Adams could not have been prejudiced.
Finally, there was no sentencing error. The district court considered
Adams’s history and characteristics explicitly, thereby avoiding procedural error,
and the resulting sentence was reasonable. See United States v. Carty, 520 F.3d
984, 991-94 (9th Cir. 2008) (en banc).
AFFIRMED.

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