Opinion
No. 14-50423 No. 15-50004 No. 14-50434 No. 14-50516 No. 15-50173
06-21-2018
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAFAEL PARSADANYAN, AKA Raffi, AKA Raffo, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARMAN SHAROPETROSIAN, AKA Dzi, AKA Horse, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MHER DARBINYAN, AKA Capone, AKA Caps, AKA Hollywood Mike, AKA Little Mike, AKA Maher, AKA Mike, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 2:11-cr-00072-RGK-35 MEMORANDUM D.C. No. 2:11-cr-00072-RGK-4 D.C. No. 2:11-cr-00072-RGK-1 Appeal from the United States District Court for the Central District of California
R. Gary Klausner, District Judge, Presiding Argued and Submitted November 17, 2017 Pasadena, California Before: THOMAS, Chief Judge, IKUTA, Circuit Judge, and GETTLEMAN, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
This case was submitted to a panel that included Judge Kozinski, who retired. Following Judge Kozinski's retirement, Chief Judge Thomas was drawn by lot to replace Judge Kozinski. Ninth Circuit General Order 3.2.h. Chief Judge Thomas has read the briefs, reviewed the record, and listened to the oral argument.
The Honorable Robert W. Gettleman, United States District Judge for the Northern District of Illinois, sitting by designation. --------
Rafael Parsadanyan, Arman Sharopetrosian, and Mher Darbinyan appeal their convictions. We have jurisdiction under 28 U.S.C. § 1291.
An Allen charge is impermissibly coercive when holdout jurors could interpret the charge "as directed specifically at them." United States v. Williams, 547 F.3d 1187, 1205 (9th Cir. 2008) (quoting United States v. Ajiboye, 961 F.2d 892, 894 (9th Cir. 1992)). Here, the holdout juror who sent a signed note to the district court asking to be excused could reasonably feel targeted by the district court's "'neutral form' of the Allen charge." Id. (quoting United States v. Steele, 298 F.3d 906, 911 (9th Cir. 2002)). Although the district court could not read the signature on the note and so did not actually know the holdout juror's identity, this fact was not conveyed to the jury; therefore, it did not mitigate the Allen charge's coercive effect on the holdout juror. Nor are we aware of any basis for holding that the coercive effect of an Allen charge in this context depends on whether the holdout juror was voting for a conviction rather than an acquittal. Because the holdout juror here self-identified to the court, and the court thereafter gave an Allen charge, "reversal is necessary." Williams, 547 F.3d at 1207 (quoting Ajiboye, 961 F.2d at 894); United States v. Sae-Chua, 725 F.2d 530, 531-32 (9th Cir. 1984).
Given our decision, we need not—and do not—reach any other issues argued by the parties.
REVERSED.