FILED NOT FOR PUBLICATION AUG 30 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50254 Plaintiff-Appellee, D.C. No. 3:16-cr-00262-BTM-5 v. KARLA BOZARTH, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, Chief Judge, Presiding Submitted August 28, 2018** Pasadena, California Before: BYBEE and WATFORD, Circuit Judges, and HERNANDEZ,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Marco A. Hernandez, United States District Judge for the District of Oregon, sitting by designation. Defendant Karla Bozarth was charged with one count of conspiracy under 18 U.S.C. § 371 and eight substantive counts of “bringing in certain aliens for financial gain” in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. Over Bozarth’s objection, the district court presented the jury with a Pinkerton instruction.1 The jury convicted Bozarth on all nine counts. Bozarth moved for acquittal and a new trial, but the district court denied both motions. This court has jurisdiction under 28 U.S.C. § 1291, and we affirm. 1. Bozarth challenges her convictions in Counts Two through Nine on the grounds that the indictment’s failure to allege foreseeability under a Pinkerton theory of liability and the court’s instruction to the jury regarding such a theory violated her constitutional rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). This court reviews de novo a claim made under Apprendi and its progeny. United States v. Banuelos, 322 F.3d 700, 704 (9th Cir. 2003). The constitutional protections outlined in Apprendi apply only to facts that constitute “elements” of a criminal conviction. Alleyne v. United States, 570 U.S. 99, 108 (2013). A possible theory on which the jury may base liability is not such 1 Pinkerton v. United States, 328 U.S. 640 (1946) allows the jury to “hold[] a co-conspirator vicariously liable for reasonably foreseeable substantive crimes committed by a co-conspirator in furtherance of the conspiracy.” United States v. Chong, 419 F.3d 1076, 1081 (9th Cir. 2005). 2 an element. Thus, absent notice concerns, an indictment need not include a specific Pinkerton allegation. United States v. Roselli, 432 F.2d 879, 895 (9th Cir. 1970). Bozarth was charged with conspiracy based on the same conduct at issue in the substantive counts and therefore had the requisite notice to defend against a Pinkerton theory of liability, even if foreseeability was not expressly mentioned in the indictment. Having been properly instructed on the elements for each possible theory of liability, the jury unanimously found Bozarth guilty of Counts Two through Nine. There is no constitutional requirement for the jury to unanimously agree on alternative theories of liability. United States v. Kim, 196 F.3d 1079, 1083 (9th Cir. 1999). The jury therefore found the elements of ...
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