United States v. Salvador Branch

34 F.3d 1074 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Salvador BRANCH, Defendant-Appellant. No. 93-50769. United States Court of Appeals, Ninth Circuit. Submitted Aug. 5, 1994.1 Decided Aug. 29, 1994. — 1 — Before: O'SCANNLAIN and T.G. NELSON, Circuit Judges, and MERHIGE, Senior District Judge.2 MEMORANDUM3 — 2 — Branch appeals from his conviction and sentence for possession with intent to distribute cocaine. Branch claims that the district court erred in denying his motion to suppress certain evidence and in denying his motion for acquittal under Rule 29 of the Federal Rules of Criminal Procedure. He also challenges the district court's refusal to instruct the jury on a lesser included offense. — 3 — Motions to suppress are reviewed de novo. United States v. Yarbrough, 852 F.2d 1522, 1533 (9th Cir.), cert. denied, 488 U.S. 866 (1988). Denial of a motion for judgment of acquittal under Rule 29 will be upheld on appeal if, viewing the evidence in the light most favorable to the government, any reasonable trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. United States v. Talbert, 710 F.2d 528 (9th Cir.1983), cert. denied, 464 U.S. 1052 (1984); United States v. Gillock, 886 F.2d 220, 221 (9th Cir.1989). A district court's refusal to instruct the jury on a lesser included offense is reviewed for an abuse of discretion. United States v. Roston, 986 F.2d 1287, 1290 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 206 (1993). — 4 — Because we find no error in the district court's evidentiary rulings, find evidence sufficient to support a verdict of guilty, and find no abuse of discretion in the district court's refusal to instruct to jury on a lesser included offense, the district court is — 5 — AFFIRMED. Footnotes [1] This case is appropriate for submission on the briefs and without oral argument per Fed.R.App. 34(a) and 9th Cir.R. 34-4 [2] The Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation [3] This disposition is not suitable for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3