FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50062

Plaintiff-Appellee, D.C. No.

v.  CR-06-00545-

GHK-3 UIESE MAUSALI,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Submitted December 11, 2009*

Pasadena, California

Filed January 11, 2010

Before: Cynthia Holcomb Hall and Barry G. Silverman,

Circuit Judges, and Suzanne B. Conlon,** District Judge.

Opinion by Judge Silverman

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Suzanne B. Conlon, United States District Judge for

the Northern District of Illinois, sitting by designation. 

721
COUNSEL

Cristina Gabrielidis Lechman, Lechman & Lechman, San

Diego, California, for the appellant.

Thomas P. O’Brien, United States Attorney; Christine C.

Ewell, Assistant United States Attorney; Rodrigo A. CastroSilva, Assistant United States Attorney; and Joseph N. Akrotirianakis, Assistant United States Attorney; Los Angeles,

California, for the appellee.

OPINION

SILVERMAN, Circuit Judge:

We hold today, as have the Second, Third, and Eighth Circuits, that a defendant waives his claim of outrageous government conduct of which he is aware if he fails to assert it in

a pretrial motion to dismiss. In this case, the defendant failed

to raise outrageous government conduct before the district

court prior to trial, during trial, or even after trial, despite

knowing the facts supposedly supporting his claim months

before trial began. Accordingly, he has waived this issue for

purposes of appeal. We affirm.

I. Background

In May 2006, Special Agent John Carr of the Bureau of

Alcohol, Tobacco, and Firearms, asked a confidential inforUNITED STATES v. MAUSALI 723
mant to let him know if the informant came across any crews

interested in committing a home invasion robbery. Carr hoped

to infiltrate an existing robbery crew by portraying himself as

a drug courier who intended to pay off thousands of dollars

in gambling debts by fencing drugs stolen from his employer’s stash house. Within a few weeks, the informant put Carr

in touch with Diego Osuna-Sanchez, who told Carr that he

had an armed and experienced robbery crew interested in

working with him. The crew consisted of Osuna-Sanchez,

Juan Okamoto, Mokey Mose, and the defendant, Uiese Mausali.

Over the course of the next month, Carr met several times

with Osuna-Sanchez, Okamoto, Mose, and Defendant to work

out the details of the robbery; each member of the crew participated in the planning. On the morning of June 23, 2006,

Okamoto, Mose, and Defendant met up with Carr at a warehouse parking lot to hash out the final details of the job on

their way to the stash house. Before Okamoto, Mose, and

Defendant could leave, however, ATF agents emerged and

took them into custody. Agents found a loaded sawed-off

shotgun, a bulletproof vest, and a roll of duct tape inside

Defendant’s car. Defendant later admitted in a post-arrest

interview with local police that he had been involved in the

plan to rob the stash house.

A grand jury returned an indictment against OsunaSanchez, Okamoto, Mose, and Defendant, charging Defendant with: (1) conspiracy to distribute at least five kilograms

of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and

846; (2) conspiracy to interfere with interstate commerce by

robbery, in violation of 18 U.S.C. § 1951; (3) possessing a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c); and (4) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Both Okamoto and

Osuna-Sanchez pled guilty; Mose and Defendant proceeded

to trial.

724 UNITED STATES v. MAUSALI
Prior to trial, Mose moved to sever his and Defendant’s trials, citing Bruton v. United States, 391 U.S. 123 (1968), and

generally claiming the possibility that Mose and Defendant

would pursue mutually antagonistic defenses; Defendant neither joined this motion nor filed his own. The district court

denied Mose’s severance motion. After the Government presented its case-in-chief, both Mose and Defendant challenged

the sufficiency of the evidence and moved for acquittal, pursuant to Fed. R. Crim. P. 29. The district court denied both

motions. Mose did not renew his severance motion.

During jury deliberations, the foreperson sent a note to the

judge indicating that one of the jurors felt he could no longer

remain impartial. With the consent of all parties, the district

court questioned the foreperson outside the presence of the

other jurors to determine the identity of the problematic juror,

and then questioned that juror, also outside the presence of the

other jurors; the juror explained that he could not fairly decide

the case solely on the basis of the evidence and the court’s

instructions. The parties agreed and the district court determined that there was good cause to excuse the juror. At the

Defendant’s request, the district court also asked the juror

whether he had discussed the basis of his inability to remain

impartial with the other jurors, and the juror said he had not.

Defendant did not ask the district court either to question the

rest of the jury panel or to grant him a mistrial. Ultimately, the

district court replaced the juror in question with an alternate,

and Defendant declined the district court’s invitation to seek

additional relief beyond replacement of the juror and the

renewal of deliberations. On January 22, 2007, the jury found

Mose and Defendant guilty of all charges.

A presentence investigation report was prepared, which

stated that Defendant’s two prior felony drug convictions

qualified him as a career offender under 21 U.S.C.

§§ 841(b)(1)(A) and 851(a)(1), as well as § 4B1.1 of the Sentencing Guidelines, thereby triggering a mandatory minimum

sentence of life imprisonment. Although Defendant stipulated

UNITED STATES v. MAUSALI 725
to his prior felony convictions, and conceded that he qualified

for the statutory mandatory minimum of life imprisonment, he

argued that neither the Guidelines nor the statutory career

offender enhancements should apply because his prior crimes

involved relatively small drug amounts. The district court ultimately rejected these arguments and sentenced Defendant to

life in prison for the drug conspiracy charge. Defendant also

received concurrent terms of 240 months’ imprisonment on

the robbery conspiracy charge and 120 months’ imprisonment

on the § 922(g) charge, plus a consecutive term of 120

months’ imprisonment on the § 924(c) charge. Defendant

timely appealed.

II. Discussion

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). For the following reasons, we affirm both

Defendant’s conviction and his sentence.

A. Outrageous Government Conduct

Defendant contends that the district court abused its discretion by failing to sua sponte dismiss the indictment in the face

of the Government’s purportedly outrageous conduct. Defendant claims that the Government violated his right to due process by supposedly directing the entire criminal enterprise

from start to finish and by promoting a crime of violence. We

do not reach the merits of Defendant’s outrageous government conduct claim, because Defendant has waived this claim

for purposes of appeal.

[1] The Second, Third, and Eighth Circuits require a defendant to assert outrageous government conduct of which he is

aware before trial, pursuant to Fed. R. Crim. P. 12(b). See,

e.g., United States v. Nunez-Rios, 622 F.2d 1093, 1098-99 (2d

Cir. 1980); United States v. Pitt, 193 F.3d 751, 760-61 (3d

Cir. 1999); United States v. Henderson-Durand, 985 F.2d

970, 973-74 (8th Cir. 1993). The policy behind the rule is

726 UNITED STATES v. MAUSALI
sound. Outrageous government conduct claims involve

alleged “ ‘defects in the institution of the prosecution’ itself,”

questions of law that the court should decide before trial.

Nunez-Rios, 622 F.2d at 1098 (quoting what is now Fed. R.

Crim. P. 12(b)(3)(A)); accord Pitt, 193 F.3d at 760. Furthermore, pretrial assertion of the claim permits the trial court to

“conduct a hearing with respect to any disputed issues of

fact.” Nunez-Rios, 622 F.2d at 1098. Indeed, the Federal

Rules of Criminal Procedure require a defendant to “alleg[e]

a defect in instituting the prosecution” before trial, Fed. R.

Crim. P. 12(b)(3)(A), or else waive the objection on appeal,

Fed. R. Crim P. 12(e); we apply a similar waiver rule to

untimely claims of irregularities in grand jury proceedings.

See United States v. Kahlon, 38 F.3d 467, 469 (9th Cir. 1994)

(“[I]rregularities in grand jury proceedings are considered to

be defects in the institution of the prosecution within the

meaning of Rule 12(b)[ ] . . . . Failure to raise such defects

before trial results in waiver of the objections.” (internal quotations and citations omitted)).

[2] In this case, Defendant waived his outrageous government conduct argument by failing to raise it before trial.

Although we may grant relief from a waiver if the defendant

“present[s] a legitimate explanation for his failure to raise the

issue in a timely manner,” United States v. Anderson, 472

F.3d 662, 669-70 (9th Cir. 2006), Defendant has offered no

explanation whatsoever, and we find none in the record.

Defendant knew of the factual basis supporting his claim at

least six months before trial began, when the indictment issued.1

1Defendant alleges that the Government “initiated the criminal activity

and engineered the criminal enterprise from start to finish”; “suggested the

idea of a home invasion robbery” and sought “to recruit individuals to

itself to create a robbery ‘crew’ ”; “supplied a motel room, a rental car, a

bullet proof vest and duct tape”; withheld the location of the purported

stash house from the crew; “suggested the robbery be for cocaine”; dictated the date of the robbery; provided the crew with a floor plan of the

stash house; and “urged [him] and the others to perform the crime armed

with guns.” Not only do all of these material facts appear in the indictment

itself, but Defendant had personal knowledge of these material facts. 

UNITED STATES v. MAUSALI 727
Despite this, he raises outrageous government conduct for the

first time on appeal and argues that the district court should

have dismissed the case on this basis sua sponte. We hold that

this issue is waived.

B. Defendant’s Remaining Arguments

[3] The remainder of Defendant’s myriad claims are either

waived or meritless. Defendant waived his argument that the

district court erroneously failed to sever his and Mose’s trials,

because he neither moved for severance before trial nor joined

Mose’s pre-trial severance motion. See Fed. R. Crim. P.

12(b)(3)(D), (e); United States v. Yarbrough, 852 F.2d 1522,

1531 (9th Cir. 1988). We decline to excuse these failures on

Defendant’s theory that it would have been an “unnecessary

formality” for him to move for severance in light of the district court’s denial of Mose’s motion. Although we may

excuse a defendant’s failure to renew his severance motion at

the conclusion of the government’s case-in-chief as an unnecessary formality, see United States v. Sullivan, 522 F.3d 967,

981 (9th Cir. 2008), we have never excused an outright failure

to raise the issue on that basis, and we will not do so here.

[4] Moreover, the district court did not commit plain error

by failing to question each member of the jury for taint after

dismissing and replacing the juror who could no longer continue deliberating. Upon learning of one juror’s potential bias,

the district court promptly and appropriately convened a hearing on the matter. See United States v. Angulo, 4 F.3d 843,

847 (9th Cir. 1993). The meticulous and highly experienced

district judge thoroughly questioned the juror—who testified

that he had not shared the basis of his problem with the other

jurors—and properly replaced the juror with an alternate.

None of the parties objected to this action or requested anything further, even when given the opportunity to do so. The

district court’s factual determination that the partial juror had

not tainted the rest of the panel was not clearly erroneous, see

728 UNITED STATES v. MAUSALI
United States v. Elias, 269 F.3d 1003, 1020-21 (9th Cir.

2001), nor was there any plain error.

[5] In addition, existing circuit precedent forecloses Defendant’s constitutional challenges to the statutory mandatory

minimum life sentence he received for being a career drug

offender, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and

851(a)(1). See United States v. Jensen, 425 F.3d 698, 707 (9th

Cir. 2005) (rejecting argument that 21 U.S.C. § 851(a)(1)

impermissibly vests sentencing discretion in the executive

rather than the judicial branch and “infringes on the ability of

the district court to impose a sentence of less than life imprisonment”); id. at 708 (rejecting argument that “the sentencing

scheme imposed a sentence that was not ‘proportional’ to the

crime . . . in violation of the Eighth Amendment,” in light of

the Supreme Court’s decision in Harmelin v. Michigan, 501

U.S. 957, 1001 (1991)); see also United States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991).

Finally, because Defendant rightly concedes that his prior

felony drug convictions alone triggered § 841(b)(1)(A)’s statutory mandatory minimum life sentence, and because the district court sentenced him to life under the statute, we need not

resolve Defendant’s argument that his prior convictions were

insufficient to trigger the Guidelines’ career offender

enhancement, U.S.S.G. § 4B1.1.

III. Conclusion

For the foregoing reasons, the judgment and sentence are

AFFIRMED.

UNITED STATES v. MAUSALI 729