Opinion
No. 12-10636
01-15-2015
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BEHROOZ BADIE, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 2:08-cr-00474-WBS MEMORANDUM Appeal from the United States District Court for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted December 8, 2014 San Francisco, California Before: RAWLINSON and MURGUIA, Circuit Judges, and NAVARRO, Chief District Judge.
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. See Fed. R. App. P. 34(a)(2).
The Honorable Gloria M. Navarro, Chief District Judge for the U.S. District Court for the District of Nevada, sitting by designation.
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Defendant-Appellant Behrooz Badie appeals the district court's entry of judgment and imposition of sentence. We have jurisdiction under 18 U.S.C. § 1291, and affirm.
We reject Defendant-Appellant's argument that the trial court abused its discretion by denying Defendant-Appellant's motion to exclude Agent Sommercamp's testimony. The trial court did not commit error under United States v. Curtin, 489 F.3d 935, 957-58 (9th Cir. 2007) (en banc), because the FBI 302s at issue were not proffered or received as evidence. Additionally, "[i]ssues of credibility are to be resolved by the jury, not the trial court." United States v. Evans, 728 F.3d 953, 964 (9th Cir. 2013) (quoting Rainey v. Conerly, 973 F.2d 321, 326 (4th Cir. 1992)) (internal quotation marks omitted).
We likewise reject Defendant-Appellant's claim that Judge Garcia committed plain error by failing to recuse himself. Judge Garcia did not "display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994). At most, Judge Garcia's actions and comments were permissible "expressions of impatience, dissatisfaction, annoyance, and even anger." Id. at 555-56.
Finally, we reject Defendant-Appellant's claim that the trial court abused its discretion by denying Defendant-Appellant's motion for continuance of sentence proceedings. Defendant-Appellant was not diligent in readying his defense prior to the date of sentencing; it is unlikely that the need for the continuance would have been met if the continuance had been granted; the continuance would have inconvenienced the trial court; and Defendant-Appellant was not prejudiced by the denial of the motion. See United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985).
AFFIRMED.