NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

 v. 

DASHAWN LEWIS, 

 Defendant-Appellant.

No. 21-50229 

D.C. Nos. 

8:20-cr-00184-CJC-1 

MEMORANDUM* 

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and submitted December 8, 2022 

Pasadena, California

Before: KELLY,** M. SMITH, and COLLINS, Circuit Judges.

Partial Concurrence by Judge COLLINS.

 * This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

 

 ** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

FILED

FEB 14 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Appellant Dashawn Lewis appeals his jury conviction for possession with 

intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 

(b)(1)(C); carrying a firearm in relation to a drug trafficking crime, in violation of 

18 U.S.C. § 924(c); and being a felon in possession of ammunition, in violation of 

18 U.S.C. § 922(g)(1). Because the parties are familiar with the facts, we do not 

recount them here, except as necessary to provide context to our ruling. We affirm 

the convictions. 

1. We review for abuse of discretion the district court’s determination 

that a witness proposed to give expert testimony “is qualified as an expert by 

knowledge, skill, experience, training, or education.” Fed. R. Evid. 702; see also 

Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015–16 (9th Cir. 

2004). Appellant contends that Detective Rudy Valdez was not qualified to testify 

pursuant to Federal Rule of Evidence 702 because (1) he had undergone “only” 

thirty hours of training on firearms and ammunition and (2) had never testified as 

an expert before. But there is no minimum requirement for length of the training 

or education. See United States v. Holguin, 51 F.4th 841, 854 (9th Cir. 2022)

(noting that, under Rule 702’s “liberal” standard, “an expert’s knowledge “need 

only exceed the common knowledge of the average layman.” (citation omitted)).

Appellant does not explain why more than thirty hours of training would be

necessary to qualify a detective as an expert on the manufacture of ammunition. 
3 

The district court reasonably concluded that Detective Valdez’s training and 

education, which included firearms accreditation from the International Firearms 

Specialist Academy, were sufficient to render him an expert able to provide helpful 

testimony on the topic. Moreover, that Detective Valdez had never before testified 

as an expert does not render him unqualified. Accordingly, the district court did 

not abuse its discretion in permitting his testimony.

2. Appellant next challenges Detective Gerald Zuniga’s testimony on 

cell-site analysis, because: (1) Detective Zuniga’s “expertise was in gangs and 

wiretaps,” which was “not relevant” to the case; (2) his training on the cell-site 

analysis software was limited to a couple of days; and (3) he had testified as an 

expert on historical cell-site analysis only once before. Appellant’s argument 

concerning the number of times Detective Zuniga had previously testified is 

unpersuasive. Moreover, as with his objections to the testimony of Detective 

Valdez, appellant does not explain why Detective Zuniga needed further training 

on the software, especially when he testified that he had conducted historical cellsite analysis “hundreds of times.” Finally, even if Detective Zuniga’s expertise in 

gangs and wiretaps is not relevant to Appellant’s case, that would not preclude 

Detective Zuniga from also being an expert in historical cell-site analysis. 

Expertise in gangs and wiretaps is not inconsistent with expertise in historical cellsite analysis. The district court therefore did not abuse its discretion in permitting 
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Detective Zuniga’s testimony. 

3. Appellant also implies that Corporal Arturo Castorena was 

unqualified to testify as an expert because he “did not even know whether the 

ANPP [Anilino-N-phenethylpiperidine] found in the car was a controlled 

substance.”1

 However, Castorena’s testimony was not provided to help the jury 

determine whether ANPP, by itself, was illegal. That issue was undisputed. 

Instead, Castorena’s testimony assisted the jury in understanding the modus 

operandi of drug trafficking transactions, a topic which Appellant admits 

Castorena “appeared to have some expertise in”—likely due to his involvement in 

seventy-five to one hundred drug-trafficking investigations. The district court 

therefore did not abuse its discretion in admitting the testimony of any of these 

three witnesses. 

4. The district court did not err by giving the Ninth Circuit Model 

Criminal Jury Instruction on guilt beyond a reasonable doubt. The last sentence of 

that instruction provides as follows: “if after a careful and impartial consideration 

of all the evidence, you are convinced beyond a reasonable doubt that the 

defendant is guilty, it is your duty to find the defendant guilty.” Appellant argues 

that this sentence is a misstatement of the law and “akin to a directed verdict,”

1 While Corporal Castorena did not know whether ANPP, by itself, is a federally 

controlled substance, he testified that fentanyl—the drug ANPP is used to make—

is a federally controlled substance. 
5 

because a jury can acquit a defendant, even though the government proved guilt 

beyond a reasonable doubt, through nullification. See United States v. Powell, 955 

F.2d 1206, 1212–13 (9th Cir. 1991).

Nullification, however, is “a violation of a juror’s sworn duty to follow the 

law as instructed by the court,” and “trial courts have the duty to forestall or 

prevent” it, including “by firm instruction or admonition.” Merced v. McGrath, 

426 F.3d 1076, 1079–80 (9th Cir. 2005). As such, an instruction to the jury to 

follow the law—i.e., to find a defendant guilty if convinced of his guilt beyond a 

reasonable doubt—is proper. See United States v. Mikhel, 889 F.3d 1003, 1033 

(9th Cir. 2018) (upholding same model instruction). “[I]t is not generally 

erroneous for a court to instruct a jury to do its job; that is, to follow the court’s 

instructions and apply the law to the facts.” United States v. Kleinman, 880 F.3d 

1020, 1032 (9th Cir. 2017). Nor does such an instruction constitute a misstatement 

of the law, “since nullification is by its nature the rejection of such duty.” United 

States v. Lynch, 903 F.3d 1061, 1080 (9th Cir. 2018). 

In Kleinman, we explained what a court cannot do: “state or imply that (1) 

jurors could be punished for jury nullification, or that (2) an acquittal resulting 

from jury nullification is invalid.” 880 F.3d at 1032. The last sentence of the 

standard instruction does neither. Here, “there was no indication that nullification 

would place jurors at risk of legal sanction or otherwise be invalid” nor did the 
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district court “tell the[] [jury] that they lacked the actual ability to [nullify].” 

Lynch, 903 F.3d at 1079. Accordingly, the district court did not err, much less 

plainly err, by providing such an instruction to the jury.

AFFIRMED. 
United States v. Lewis, No. 21-50229

COLLINS, Circuit Judge, concurring in part and in the judgment: 

I join Sections 1, 2, and 3 of the majority’s memorandum disposition. As to 

Lewis’s challenge to the district court’s reasonable-doubt instruction, I concur on 

the narrower ground that, even assuming that the instruction was erroneous, Lewis

has not shown that reversal is warranted. 

The district court’s jury instruction on reasonable doubt was drawn from the 

2010 version of this circuit’s pattern jury instructions. See NINTH CIR.JURY 

INSTRUCTIONS COMM., MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS 3.5 

(2020).1

 Lewis challenges only the final sentence of that pattern instruction, which 

states that, “if after a careful and impartial consideration of all the evidence, you 

are convinced beyond a reasonable doubt that the defendant is guilty, it is your 

duty to find the defendant guilty.” Id. On appeal, Lewis contends that this 

sentence exceeds the bounds of what is permissible in an “anti-nullification jury 

instruction.” United States v. Kleinman, 880 F.3d 1020, 1031 (9th Cir. 2017). 

Because Lewis did not raise this objection below, our review is only for plain 

error. See FED. R. CRIM. P. 30(d), 52(b).

In Kleinman, we held that, “[a]lthough a court has the duty to forestall or 

1 The model instructions have since been updated, and this instruction is now listed 

as No. 6.5. See NINTH CIR.JURY INSTRUCTIONS COMM., MANUAL OF MODEL 

CRIMINAL JURY INSTRUCTIONS 6.5 (2022).

FILED

FEB 14 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

prevent nullification, including by firm instruction or admonition, a court should 

not state or imply that (1) jurors could be punished for jury nullification, or that 

(2) an acquittal resulting from jury nullification is invalid.” 880 F.3d at 1032 

(simplified). Even assuming arguendo that the challenged sentence plainly 

violated Kleinman’s limits on anti-nullification instructions, that is insufficient to 

warrant reversal under the plain error doctrine. The party asserting plain error 

must also carry the burden to show that two additional elements are satisfied, 

namely that (1) “the error must affect ‘substantial rights,’ which generally means 

that there must be ‘a reasonable probability that, but for the error, the outcome of 

the proceeding would have been different’”; and (2) “the error had a serious effect 

on ‘the fairness, integrity or public reputation of judicial proceedings.’” See Greer 

v. United States, 141 S. Ct. 2090, 2096 (2021) (citations omitted); see also United 

States v. Dominguez-Benitez, 542 U.S. 74, 82 (2004) (“[T]he burden of 

establishing entitlement to relief for plain error is on the defendant claiming it.”).

In contending that he has satisfied these additional aspects of the plain error 

test, Lewis relies solely on the contention that the asserted error amounts to a faulty 

reasonable-doubt instruction that, under Sullivan v. Louisiana, 508 U.S. 275 

(1993), is “per se reversible.” But we rejected this precise contention in Kleinman, 

holding that an erroneous anti-nullification instruction “did not amount to a 

structural error.” 880 F.3d at 1034. We expressly rejected the analogy to Sullivan, 
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in which the jury was given an instruction that misdescribed the substance of the 

beyond-a-reasonable-doubt standard itself. See id. Where, as here, the only claim 

is that the challenged language unduly impinged upon the jury’s power to nullify, 

there is no basis for concluding that, as in Sullivan, the substantive standard for 

evaluating “reasonable doubt” has been improperly articulated.

Because Lewis’s per-se reversal theory is contrary to Kleinman, and because 

he has not even attempted to make any case-specific showing that the two abovedescribed additional elements of the plain error test are met, Lewis has failed to 

establish any plain error. On that basis, I concur in the court’s judgment rejecting 

Lewis’s challenge to the pattern jury instruction.