United States v. Jerry Brice , 593 F. App'x 709 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10099
Plaintiff - Appellee, D.C. No. 2:12-cr-00340-SRB
v.
MEMORANDUM*
JERRY MARVETTE BRICE, a.k.a. Jerry
M. Brice,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted February 3, 2015
San Francisco, California
Before: TALLMAN and RAWLINSON, Circuit Judges, and MURPHY, District
Judge.**
After a four-day trial, a federal jury convicted Jerry Marvette Brice of being
a felon in possession of a firearm. See 18 U.S.C. § 922(g). On appeal, Brice
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
argues that the district court committed reversible error in several of its evidentiary
rulings, by denying his challenge to the government’s peremptory strike of an
African American venire member, and when it sentenced Brice as an armed career
criminal under 18 U.S.C. § 924(e)(1). Because we find that the district court did
not err—or when it did, its errors were harmless—we affirm.
1. Although the district court erred when it determined that defense witness
Deric McWilliams was “available” within the meaning of Federal Rule of
Evidence 804(a)(1), see United States v. Wilmore, 381 F.3d 868, 872 & n.5 (9th
Cir. 2004), overruled in part on other grounds by United States v. Larson, 495
F.3d 1094, 1100–01 (9th Cir. 2007) (en banc), that error was harmless for several
reasons. First, the government presented ample evidence to support Brice’s
conviction. Second, although neither McWilliams nor defense investigator Lee
Cole testified that McWilliams (rather than Brice) possessed the gun, McWilliams
did otherwise exculpate Brice at trial. During direct examination, McWilliams told
the jury that Brice did not have a weapon when approached by police on the day of
the incident. Notwithstanding this testimony, the jury convicted Brice of
possessing the Sig Sauer pistol. There is no reason to believe that the jurors would
have credited McWilliams’s unsworn, out of court statements to Cole when they
did not credit his sworn testimony at trial. See United States v. Wood, 550 F.2d
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435, 441 (9th Cir. 1976) (finding harmlessness following Rule 804 error when the
excluded declarant “would not have been a credible witness”). Finally, the district
court did not violate Brice’s Sixth Amendment right to present a defense by
excluding McWilliams’s testimony because the testimony did “not bear persuasive
assurances of trustworthiness.” United States v. Gadson, 763 F.3d 1189, 1200–01
(9th Cir. 2014) (quotation marks omitted).
Second, the district court did not abuse its discretion when it denied Brice’s
motion for a mistrial. The district court found that Jody Daniels’s testimony
established only that he and Brice had been co-defendants, not that Brice had
previously committed a firearms offense. This construction of Daniels’s testimony
is not implausible or illogical. See United States v. Hinkson, 585 F.3d 1247, 1262
(9th Cir. 2009) (en banc).
Third, the district court did not abuse its discretion by admitting Scott
Davis’s testimony: The government laid a sufficient foundation under Federal
Rule of Evidence 602, and—after careful balancing—the district court properly
found that Davis’s testimony was more probative than unduly prejudicial, see Fed.
R. Evid. 403. Finally, cumulative errors do not require reversal.
2. The district court did not err when it denied Brice’s challenge under
Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor offered several race-
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neutral reasons for striking Juror 19 from the venire, the record supports the district
court’s conclusion that those reasons were not pretextual, and the “seated jury
included [one African American] who w[as] not struck by the government,” see
United States v. Cruz-Escoto, 476 F.3d 1081, 1090 (9th Cir. 2007). A comparative
juror analysis does not require a different result. Cf. Miller–El v. Dretke, 545 U.S.
231, 241 (2005).
3. Finally, the district court did not commit reversible error when it
sentenced Brice under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(1). Although the district court erred by applying the ACCA without
comparing the state statutes under which Brice was previously convicted against
the generic federal definitions, the error does not require reversal because it did not
affect Brice’s substantial rights. United States v. Rendon-Duarte, 490 F.3d 1142,
1146–47 (9th Cir. 2007). At least three of Brice’s five state felony
convictions—including a 1993 conviction for attempted murder, Ariz. Rev. Stat.
§ 13-1104, and two 2001 convictions for armed robbery, Ariz. Rev. Stat. §§ 13-
1901, 13-1902, 13-1904—qualify as violent felony convictions within the meaning
of the ACCA. See United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir. 2008).
Nor did the district court’s application of the ACCA violate Brice’s Sixth
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Amendment rights. See Descamps v. United States, 133 S. Ct. 2276, 2288 (2013).
The 240-month sentence was, therefore, proper.
AFFIRMED.
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