NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES EARL MAGEE,

Defendant - Appellant.

No. 23-1280

D.C. No.

2:21-cr-00171-GMN-VCF -1

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, District Judge, Presiding

Argued and Submitted August 13, 2024

San Francisco, California

Before: GRABER, CALLAHAN, and KOH, Circuit Judges.

James Magee appeals his conviction, following a jury trial, for one count of 

theft of government money or property in violation of 18 U.S.C. § 641 and one 

count of mail theft by a postal employee in violation of 18 U.S.C. § 1709. We 

have jurisdiction under 28 U.S.C § 1291. We affirm in all respects except that we 

vacate the standard conditions of supervised release and remand for further 

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

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 29 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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proceedings as described in United States v. Montoya, 82 F.4th 640 (9th Cir. 2023) 

(en banc).

1. Magee argues that the district court should have granted a mistrial 

because of the government’s alleged Brady violation and outrageous conduct. 

However, even assuming that the government withheld favorable evidence from

Magee, no prejudice ensued because there was not “a reasonable probability that 

the suppressed evidence would have produced a different verdict.” Strickler v. 

Greene, 527 U.S. 263, 281 (1999).

The evidence at trial established that Magee sold a customer the three money 

orders at issue, that Magee’s unique employee identification number was listed on 

at least one of the receipts cashing the money orders, that Magee was at his 

workstation around the time the money orders were cashed (as evidenced by 

surveillance footage), and that no one else was at Magee’s workstation when the

money orders were cashed. Moreover, the customer who purchased the three 

money orders at issue identified Magee in court, funds were deposited into 

Magee’s bank account a few days after the three money orders at issue were 

cashed, and Magee thereafter paid an overdue car bill after having not paid that bill 

for four months. Other evidence also established that Magee had sold and cashed 

$1 money orders addressed to someone else shortly before the three money orders 

at issue were cashed, that Magee’s handwriting and driver’s license number were 
3

associated with these $1 money orders, that a stub from one of these $1 money 

orders was recovered from Magee’s car, and that Magee asked a supervisor about 

how to cash money orders around the same time (which the supervisor considered 

odd).

In light of this evidence, the fact that Ms. Elsas gave her driver’s license to a 

clerk other than Magee—a fact that the government never contested—did not give 

rise to a “second suspect” such that Magee was deprived of a fair trial. United 

States v. Jernigan, 492 F.3d 1050, 1056–57 (9th Cir. 2007) (en banc). Because 

any withheld evidence could not “reasonably be taken to put the whole case in 

such a different light as to undermine confidence in the verdict,” Strickler, 527 

U.S. at 290 (citation and internal quotation marks omitted), we reject Magee’s 

contention that a new trial is warranted.

2. Magee raises five evidentiary challenges, each of which fails.

First, the district court correctly determined that evidence of Magee 

negotiating $1 money orders using another person’s identity was “inextricably 

intertwined” with the charged offenses. United States v. Wells, 879 F.3d 900, 928 

(9th Cir. 2018). The evidence allowed the prosecutor to offer a “coherent and 

comprehensive story” regarding Magee’s commission of the crime, id. (citation 

omitted), as it established how Magee tested the viability of cashing money orders 

addressed to someone else. But even if the evidence was “other act evidence” 
4

within the meaning of Federal Rule of Evidence 404(b), the district court did not 

abuse its discretion in admitting it. See United States v. Carpenter, 923 F.3d 1172, 

1180–81 (9th Cir. 2019) (“We review de novo whether evidence is other act 

evidence within the meaning of Fed. R. Evid. 404(b), but the admission of this 

evidence for abuse of discretion.”). The evidence helped to show that Magee had 

the opportunity and knowledge to cash another person’s money orders and that he 

prepared to do so. See Fed. R. Evid. 404(b)(2). The evidence also met the Ninth 

Circuit’s four-part test for admissibility under Rule 404(b), as it helped prove a 

“material point” at trial by showing that Magee used another person’s identity to 

execute the crime, it occurred around the same time as the charged offenses, and it 

was “similar to the offense[s] charged” because it illustrated Magee’s knowledge 

of bypassing Postal Service protocols for cashing money orders addressed to 

someone else. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1013 (9th 

Cir. 1995). There was also sufficient evidence to show that Magee, in fact, 

negotiated the $1 money orders.

Second, the district court did not abuse its discretion in admitting 

surveillance footage taken from the post office. Witness testimony established that 

the date on the footage was accurate and that the timestamp on the footage “is 

always off by a few minutes.” Contrary to Magee’s argument that the government 

failed to establish the accuracy of the footage timestamps, the government 
5

established that the footage had timestamps “at or near the time that the transaction 

was conducted,” which is what the rules of evidence require. Fed. R. Evid. 

901(b)(1).

Third, the district court did not abuse its discretion by admitting the lay 

witness handwriting testimony of Magee’s ex-fiancée, Ms. Sanders-Castro. 

Sanders-Castro confirmed that she had seen Magee’s handwriting “a few times,” 

was “vaguely familiar” with it, and recognized it on the $1 money orders.1 

Although her familiarity with Magee’s handwriting was admittedly limited, it was 

still helpful to the jury. See 29 Wright & Miller, Federal Practice & Procedure § 

6252 (2024) (explaining that Rule of Evidence 701 generally allows testimony that 

would be helpful to the jury, as long as the benefits of admission outweigh the 

detriments). We also find it relevant that Magee’s counsel conceded at trial that 

Sanders-Castro “could testify, because she’s familiar with [Magee’s] handwriting.”

Further, even if the district court abused its discretion in admitting Agent 

Williams’ lay witness handwriting testimony, any error was harmless. SandersCastro testified that she recognized Magee’s signature on the $1 money orders, 

Agent Williams found a stub for one of the $1 money orders in Magee’s car, 

1 The parties dispute whether plain error review applies to the admission of 

Sanders-Castro’s testimony. However, because there was no abuse of discretion, it 

follows that there was no plain error. United States v. Autery, 555 F.3d 864, 873 

(9th Cir. 2009).
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Magee’s driver’s license was listed on the $1 money order, and the Postal Service 

records showed Magee selling the $1 money order around the same time he sold 

the other money orders at issue. Admission of Agent Williams’ handwriting 

testimony, if erroneous, thus did not “more likely than not affect[] the verdict”

given this other evidence tending to link Magee to the $1 money orders. United 

States v. Koziol, 993 F.3d 1160, 1183 (9th Cir. 2021) (quoting United States v. 

Obendorf, 894 F.3d 1094, 1098 (9th Cir. 2018)).

Fourth, the district court did not abuse its discretion in admitting Exhibit 14, 

which included photocopied receipts from the July 2 and July 6 money order 

transactions. The photocopied receipts satisfied the best evidence rule because 

they were duplicates of the original receipts. See Fed. R. Evid. 1002, 1003. Magee 

argues that the July 6 receipt could not be considered a duplicate because the 

bottom of the receipt was cut off in the photocopy machine, but the district court 

properly considered “the appearance” of the July 6 receipt and the “reliability of 

the copying process” to conclude that the missing information did not affect the 

evidence’s reliability. See 31 Wright & Miller, Federal Practice & Procedure § 

7167 (2024) (“In determining whether the copy is an accurate reproduction, the 

court may consider, among other evidence, the appearance of the very item in 

question, including the reliability of the copying process that appears to have been 

employed.”). Magee’s argument that Exhibit 14 violated the rule of completeness 
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also fails because there is no “other part” of the two receipts that the government 

could have introduced given that the government no longer had copies of the 

original receipts. See Fed. R. Evid. 106. Finally, even if the district court abused 

its discretion by admitting the incomplete July 6 receipt, any such error was 

harmless given the other evidence in the record supporting Magee’s conviction.

Fifth, the district court did not abuse its discretion in declining to force 

admission of Magee’s pretrial recorded statement. Magee argues that the 

government conditionally agreed to admit his recorded statement with certain 

redactions, but he overstates the record. Although we hold the government strictly 

to its pre-trial agreements, United States v. Shapiro, 879 F.2d 468, 469–71 (9th Cir. 

1989), no binding agreement between the parties was reached here. The 

government wrote by email to defense counsel that “to the extent the parties would 

agree to redact the recording” it would “consider stipulating to the admission of 

certain clips.” Considering to do something is not agreeing to actually do 

something. Further, the government’s email ended by stating that it was “not 

committing to this option at this time, but we can discuss further, and that might be 

a reasonable compromise.”

3. Magee next argues that there was insufficient evidence to support his 

conviction. To begin, he contends that he did not steal property of the United 

States, which is required for a conviction under 18 U.S.C. § 641. Magee 
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acknowledges that our precedent holds otherwise, United States v. Dupee, 569 F.2d 

1061 (9th Cir. 1978), but contends Dupee was “effectively overruled” by the 

Supreme Court in Delaware v. New York, 507 U.S. 490 (1993), and Delaware v. 

Pennsylvania, 598 U.S. 115 (2023). However, neither New York nor Pennsylvania

considered money orders that were stolen or that required the issuer—here, the 

Postal Service—to reimburse the stolen money orders. As a result of Magee’s 

conduct, the Postal Service was required to reimburse the stolen $2,340.27, which 

most certainly constitutes a “thing of value of the United States” under § 641. See 

United States v. Miller, 520 F.2d 1208, 1210 (9th Cir. 1975) (finding a violation 

under § 641 where money was “drawn on the account of the United States”). So 

even if the debtor-creditor relationship articulated in New York and Pennsylvania

exists, the reasoning in those cases is not “clearly irreconcilable” with Dupee. 

Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

Magee also argues that insufficient evidence established his identity as the 

person who both unlawfully stole and cashed the money orders at issue. But as we 

have already noted, the customer who purchased the stolen money orders identified 

Magee at trial, the surveillance footage showed Magee selling the money orders to 

the customer, and at least one of the receipts from cashing the money orders 

showed Magee’s unique employee identification number. The evidence at trial 

also established that just a few days after cashing the money orders Magee 
9

deposited money into his bank account and paid an overdue bill, a stub from one of 

the $1 money orders was recovered from Magee’s car, the $1 money orders were 

associated with Magee’s handwriting and driver’s license number, and Magee had 

asked a supervisor about cashing money orders around the same time that the three 

money orders at issue were cashed. “[V]iewing the evidence in the light most 

favorable to the prosecution, [a] rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” United States v. Mincoff, 574 

F.3d 1186, 1192 (9th Cir. 2009) (quoting United States v. Dearing, 504 F.3d 897, 

900 (9th Cir. 2007)).

4. Finally, in view of the parties’ stipulation, we vacate the imposition of 

the “standard conditions” of Magee’s supervised release and we remand for the 

limited purpose of allowing the district court to impose these conditions, if it so 

chooses, in a manner consistent with Montoya, 82 F.4th at 651 (“The district court 

can recite each condition it elects to impose. Alternatively, where the defendant 

has been informed of the proposed conditions of supervised release in advance of 

sentencing, the court can incorporate those conditions by reference at the 

hearing.”).

Accordingly, we AFFIRM Magee’s conviction and sentence except that we

VACATE the standard conditions of supervised release, and REMAND.