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`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`FILED
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`JUL 7 2021
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`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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`No. 20-10211
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`D.C. Nos.
`3:18-cr-00203-EMC-1
`3:18-cr-00203-EMC
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`MEMORANDUM*
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` Plaintiff-Appellee,
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`UNITED STATES OF AMERICA,
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`CHRISTOPHER D. LISCHEWSKI,
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` Defendant-Appellant.
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`Appeal from the United States District Court
`for the Northern District of California
`Edward M. Chen, District Judge, Presiding
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`Argued and Submitted June 16, 2021
`San Francisco, California
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`Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.
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`After a five-week trial, a jury convicted Christopher Lischewski of conspiring
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`to fix prices in the canned tuna market, in violation of 15 U.S.C. § 1. Lischewski
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`appeals, challenging various jury instructions and the district court’s decisions to
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`admit two emails. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
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` This disposition is not appropriate for publication and is not precedent
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`except as provided by Ninth Circuit Rule 36-3.
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`1. We review a district court’s “formulation of jury instructions for abuse
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`of discretion.” United States v. Liew, 856 F.3d 585, 595 (9th Cir. 2017). We review
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`“de novo whether those instructions correctly state the elements of the offense and
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`adequately cover the defendant’s theory of the case.” Id. at 596. If an instruction is
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`erroneous, we generally “apply harmless error analysis to determine whether an
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`improper instruction constitutes reversible error.” United States v. Munguia, 704
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`F.3d 596, 598 (9th Cir. 2012). If a defendant fails to object with sufficient specificity
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`to a jury instruction, we review for plain error. See United States v. Conti, 804 F.3d
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`977, 981 (9th Cir. 2015).
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`a.
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`Lischewski first challenges the constitutionality of the “per se” rule in
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`Sherman Act criminal cases. But Lischewski acknowledges we are bound by
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`precedent upholding the per se rule and raises this issue only to preserve it for further
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`review. See, e.g., Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 344 (1982)
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`(holding that there is “a conclusive presumption that the restraint is unreasonable”
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`when parties engage in horizontal price-fixing); United States v. Brown, 936 F.2d
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`1042, 1045–46 (9th Cir. 1991) (holding that the government need not show “an
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`intent to produce anticompetitive effects”).
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`b.
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`Lischewski next challenges the jury instructions on conspiracy and
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`conspiracy to fix prices because they stated that “the government had to prove an
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`agreement ‘or mutual understanding.’” Lischewski argues that a “mutual
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`2
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`understanding” falls short of an “agreement” because a “mutual understanding”
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`could have just been a “commonly held view.” Plain error review applies because
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`Lischewski failed to object to the language at issue, and his proposed instructions
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`did not “bring into focus the precise nature of the alleged error.” Hunter v.
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`Sacramento, 652 F.3d 1225, 1231 (9th Cir. 2011) (quotations omitted). Regardless,
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`Lischewski’s challenge would fail under any standard of review.
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`We must “determine whether the instructions, viewed as a whole, were
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`misleading or inadequate to guide the jury’s deliberation.” United States v. Kaplan,
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`836 F.3d 1199, 1215 (9th Cir. 2016) (quotations omitted). Lischewski’s argument
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`lacks merit because he improperly reads the phrase “mutual understanding” in
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`isolation. Contrary to Lischewski’s argument, various portions of the instructions
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`made clear that “agreement” and “mutual understanding” were used synonymously.
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`In addition, the instructions clearly required jurors to find that Lischewski entered
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`into an unlawful agreement to fix prices, while providing that a “mere similarity of
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`conduct among various persons” or “common aims and interests” was not sufficient.
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`c.
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`The district court also did not err in instructing the jury on when a
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`corporate officer is individually liable for conspiring to violate the Sherman Act.
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`Plain error review applies because Lischewski failed to preserve with sufficient
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`specificity the objection he now raises here. See Hunter, 652 F.3d at 1230.
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`Regardless, the result would be the same even if de novo review applied.
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`3
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`The jury was instructed that it could find Lischewski “knowingly
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`participate[d] in effecting the illegal conspiracy by directly participating in the
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`conspiracy and/or indirectly or directly authorizing, ordering, or helping a
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`subordinate perpetrate the crime.” Officers are “liable for the illegal actions of
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`subordinates if they knowingly authorized or consented to such behavior.” Brown,
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`936 F.2d at 1047. And an officer who “authorizes, orders, or helps perpetrate” a
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`conspiracy “knowingly participates” in that conspiracy. Id. at 1047–48 (quoting
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`United States v. Wise, 370 U.S. 405, 416 (1962)). The instructions here accurately
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`described when Lischewski could be liable for conspiracy to violate the Sherman
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`Act, while making clear that “mere knowledge of a conspiracy without participation”
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`was “insufficient.” “[V]iewed as a whole,” the “individual liability” instruction was
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`not improper or misleading. Kaplan, 836 F.3d at 1215.
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`d.
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`The district court did not err in giving a “Pinkerton instruction.”
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`Lischewski challenges the instruction as “superfluous and confusing” because he
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`was only charged with one count of conspiracy under the Sherman Act, not with a
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`substantive crime committed by a co-conspirator. But the instruction correctly stated
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`the law, and Lischewski fails to explain how the instruction could cause material
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`confusion or prejudice him. Instead, he concedes that under the instruction, he was
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`only “responsible for the acts of his alleged co-conspirators if the jury found that he
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`had joined the conspiracy” and had “already found Lischewski guilty.”
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`4
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`e.
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`The district court did not abuse its discretion in instructing the jury on
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`the per se rule or prohibiting Lischewski from offering evidence about the supposed
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`reasonableness of his price-fixing conspiracy. See Hunter, 652 F.3d at 1230; United
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`States v. Gadson, 763 F.3d 1189, 1215 (9th Cir. 2014). As noted, Lischewski admits
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`that the district court was bound to follow the per se rule. Lischewski nonetheless
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`maintains that the jury instruction on the per se rule was excessive, especially when
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`combined with the district court preventing Lischewski from arguing that the pricing
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`agreement was reasonable and caused no harm. But the instructions and the
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`government’s statements correctly reflected the substantive law, and Lischewski has
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`not explained why reversal would be warranted.
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`f.
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`Even if Lischewski’s arguments on the jury instructions had merit (and
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`he had properly preserved all of his arguments below), “it is clear beyond a
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`reasonable doubt that a rational jury would have found the defendant guilty absent
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`the error.” Munguia, 704 F.3d at 604 (quotations omitted). The evidence that
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`Lischewski participated in a scheme to fix prices in the canned tuna market was
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`overwhelming. In addition to documentary evidence, several of Lischewski’s co-
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`conspirators testified at the trial that the conspiracy existed, that Lischewski knew
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`about the conspiracy, and that he was a member of it. This included testimony that
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`Lischewski was substantially involved in orchestrating, implementing, and
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`enforcing the price-fixing agreements.
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`5
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`2. We turn next to Lischewski’s claims that the district court erred in
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`admitting two emails. We review the district court’s “decision to admit evidence . . .
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`for an abuse of discretion.” United States v. Alvirez, 831 F.3d 1115, 1120 (9th Cir.
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`2016). For preserved claims, evidentiary errors do not warrant reversal if “it is more
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`probable than not that the error did not materially affect the verdict.” United States
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`v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015).
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`a.
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`The district court did not abuse its discretion in admitting Renato
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`Curto’s email as a business record under Federal Rule of Evidence 803(6). The
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`district court reasonably concluded that Curto wrote the email “at or near the time”
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`of the conversation with Lischewski because Curto prepared the email the following
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`day. See, e.g., United States v. Huber, 772 F.2d 585, 591 (9th Cir. 1985). The record
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`also supported the district court’s conclusion that the Curto email was kept in the
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`course of a regularly conducted activity of a business and was prepared as part of
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`the business’s regular practice. Fed. R. Evid. 803(6)(B)–(C); see also City of Long
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`Beach v. Standard Oil Co., 46 F.3d 929, 937 (9th Cir. 1995).
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`Nor did the district court exceed its “wide discretion” in determining that the
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`Curto email met Rule 803(6)’s “trustworthiness standard.” United States v. Scholl,
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`166 F.3d 964, 978 (9th Cir. 1999). Curto acknowledged that he was writing only
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`what he remembered of the conversation. The jury heard Curto’s testimony and
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`6
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`could properly weigh it. See id. (explaining that “inaccuracies, ambiguities, or
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`omissions go to the weight and not the admissibility of the evidence”).
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`b.
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`The district court did not abuse its discretion in admitting an email
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`between StarKist executives that discussed a conversation one of them had with
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`Lischewski. See Alvirez, 831 F.3d at 1120. The email was admissible to show the
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`state of the mind of the persons on the email. Fed. R. Evid. 801(c)(2); see also
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`Gadson, 763 F.3d at 1211–12.
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`The district court also repeatedly instructed the jury that the email was
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`admitted for that purpose and not for the truth of the matter asserted. While
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`Lischewski claims these instructions were insufficient to alleviate claimed prejudice,
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`we have “repeatedly held that a district court’s careful and frequent limiting
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`instructions to the jury, explaining how and against whom certain evidence may be
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`considered, can reduce or eliminate any possibility of prejudice arising from” the
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`admission of evidence. See United States v. Fernandez, 388 F.3d 1199, 1243 (9th
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`Cir. 2004), modified, 425 F.3d 1248 (9th Cir. 2005). That is the case here.
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`c.
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`Even if the two emails were improperly admitted or the limiting
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`instructions on the second email insufficient, any error was harmless given the
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`overwhelming evidence that Lischewski participated in a price-fixing conspiracy.
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`Torres, 794 F.3d at 1063.
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`7
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`3.
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`Finally, Lischewski’s cumulative error theory lacks merit because he
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`fails to show that the district court committed any errors, let alone multiple ones.
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`See United States v. Begay, 673 F.3d 1038, 1047 (9th Cir. 2011) (“We have not
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`recognized any error below, so there is no cumulative prejudicial effect to analyze.”).
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`AFFIRMED.
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