NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MAXWELL JOSEPH GAFFNEY, 

Defendant-Appellant.

No. 20-50037 

D.C. No. 

3:17-cr-03330-MMA-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Argued and Submitted October 5, 2021

Pasadena, California

Before: GRABER and CHRISTEN, Circuit Judges, and SEEBORG,** District 

Judge.

Maxwell Gaffney appeals his conviction for distribution of heroin resulting

in death in violation of 21 U.S.C. § 841(b)(1)(C). We have jurisdiction under 28 

U.S.C. § 1291. We affirm.

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Richard Seeborg, Chief United States District Judge 

for the Northern District of California, sitting by designation.

FILED

OCT 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

1. The district court did not err in declining to instruct the jury that 

proximate cause was required to convict Gaffney. We review de novo whether an 

instruction omitted or misstated an element of the charged offense. United States v. 

Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010). “[P]roximate cause is not a required 

element for conviction and sentencing under § 841(b)(1)(C).” United States v. 

Houston, 406 F.3d 1121, 1124–25 (9th Cir. 2005). The Supreme Court’s decision 

in Burrage v. United States, 571 U.S. 204 (2014), holding that but-for causation is 

required, did not call into question the holding or reasoning in Houston. See United 

States v. Gonzalez, 906 F.3d 784, 799 (9th Cir. 2018).

2. The district did not err in declining to give Gaffney’s proposed jury 

instructions concerning his theory of defense. We review de novo “[w]hether the

other instructions adequately cover the theory of defense.” United States v. Del 

Muro, 87 F.3d 1078, 1081 (9th Cir. 1996). Gaffney’s proposed instructions either 

were repetitive of instructions given by the court or misstated the law. See id.;

United States v. George, 420 F.3d 991, 1000 (9th Cir. 2005) (holding that a 

defendant “is not entitled to an instruction that misstates the law”).

3. The district court did not err in admitting images of Facebook messages 

between Gaffney and another heroin purchaser. We review evidentiary rulings for 

abuse of discretion. United States v. Whittemore, 776 F.3d 1074, 1077 (9th Cir. 

2015). The text messages were relevant, probative, and properly authenticated, and 
3 

they were not inadmissible hearsay. As the messages were similar to the ones 

between Gaffney and the decedent Kyle Rodriguez, they were relevant to 

Gaffney’s knowledge, intent, and lack of mistake concerning the sale of heroin to 

Rodriguez. See Fed. R. Evid. 401 (“Evidence is relevant if . . . it has any tendency 

to make a fact more or less probable than it would be without the evidence[.]”); 

Fed. R. Evid. 404(b)(2). Given the relevance of the messages, any prejudicial 

effect did not “substantially outweigh[]” their probative value. Fed. R. Evid. 403. 

The messages were properly authenticated because, among other reasons, the 

phone number used by the account holder “Max Gaffney” in the messages was 

Gaffney’s phone number. See Fed. R. Evid. 901(a).

Additionally, non-constitutional errors in evidentiary rulings are subject to 

harmless error review. United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 

2002). The messages between Gaffney and the other purchaser only went to the 

elements of whether Gaffney sold heroin to Rodriguez and whether he knew what 

he sold was heroin. The government provided other evidence of these elements at 

trial, including the messages between Gaffney and Rodriguez, and drug 

paraphernalia found in Gaffney’s home. Even if the district court erred in admitting 

the messages between Gaffney and the other purchaser, “it is more probable than 

not that the error did not materially affect the verdict.” Id. (internal quotation 

marks and citation omitted). Finally, the messages sent to Gaffney were admissible 
4 

as non-hearsay evidence because they were admitted to show their effect on 

Gaffney, not for their truth. See Fed. R. Evid. 801(c)(2).

4. Sufficient evidence supports the verdict. Gaffney argues that there was 

insufficient evidence that Rodriguez had lethal levels of heroin in his system and 

that the heroin Rodriguez used when he overdosed must have been supplied by 

someone other than Gaffney. Multiple experts, however, testified that Rodriguez 

would not have died but for the heroin. The case agent who reviewed the contents 

of Rodriguez’s phone testified that the only messages in which Rodriguez 

successfully arranged to buy heroin close to the date of his death were the ones 

with Gaffney. Further, the government also presented evidence that Rodriguez did 

not use heroin earlier in the evening before his overdose at home. Friends and 

family testified that Rodriguez did not appear to be on drugs earlier in the day, and 

that Rodriguez ate a large meal on his way home, which an expert opined he would 

not have been able to eat if he had already used heroin that evening. Viewing the 

evidence “in the light most favorable for the prosecution . . . [a] rational trier of 

fact could have found the essential elements of the crime beyond a reasonable 

doubt.” United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc)

(internal quotation marks and citation omitted).

5. The district court did not abuse its discretion in denying Gaffney’s motion 

for a new trial. See United States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011)
5 

(reviewing for abuse of discretion the denial of a motion for a new trial). Although 

the standard governing motions for a new trial is “much broader” than the one 

governing motions for acquittal, United States v. Kellington, 217 F.3d 1084, 1097 

(9th Cir. 2000) (quoting United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 

1206, 1211 (9th Cir. 1992)), this case is not an “exceptional case[] in which the 

evidence preponderates heavily against the verdict,” United States v. Pimentel, 654 

F.2d 538, 545 (9th Cir. 1981) (internal quotation marks and citation omitted).

Instead, the government provided significant evidence to support each of the 

elements of the offense. Further, Gaffney argues that his prosecution and 

conviction were unfair given his lack of prior involvement in Rodriguez’s battle 

with addiction. This argument, however, concerns Congress’s design of the statute, 

not a lack of evidence to support the conviction. 

AFFIRMED.