United States v. Kenneth Douglas ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30258
Plaintiff-Appellee, D.C. No.
3:18-cr-00066-SLG-2
v.
KENNETH MARTIN DOUGLAS, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-30260
Plaintiff-Appellee, D.C. No.
3:18-cr-00066-SLG-1
v.
DWAYNE DOLLISON, Jr.,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-30261
Plaintiff-Appellee, D.C. No.
3:09-cr-00107-SLG-1
v.
DWAYNE DOLLISON, Jr.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted August 3, 2021
Anchorage, Alaska
Before: WARDLAW, MILLER, and BADE, Circuit Judges.
Kenneth Douglas and Dwayne Dollison, Jr., (collectively, “Defendants”)
appeal their jury convictions for drug trafficking conspiracy, 21 U.S.C. §§ 841,
846, drug possession with intent to distribute, Id. U.S.C. § 841, possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924, and possession
of a firearm by a felon, Id. U.S.C. § 922. Defendants challenge the denial of their
motion to suppress evidence obtained from the traffic stop, the admission of
evidence that the firearm was stolen, the admission of evidence of their prior
convictions, and the inclusion of a deliberate indifference jury instruction. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. We affirm under de novo review the district court’s denial of the
motion to suppress evidence obtained during Defendants’ extended traffic stop.
United States v. Dixon, 984 F.3d 814, 818 (9th Cir. 2020). The district court did
not err in concluding that the traffic stop was lawfully initiated. It correctly
concluded that the officer had reasonable suspicion to stop the car because it found
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that Defendants were illegally driving over the speed limit. See Kansas v. Glover,
140 S. Ct. 1183, 1187–88 (2020).
Next, the district court properly concluded that the stop was lawfully
extended four times. See United States v. Garcia-Rivera, 353 F.3d 788, 791 (9th
Cir. 2003). The district court did not err in finding that checking the probationary
statuses of Defendants did not measurably extend the stop and in concluding that
the officer did not violate the Fourth Amendment by extending the stop to do so.
Rodriguez v. United States, 575 U.S. 348, 355 (2015). The officers had
independent reasonable suspicion to check Defendants’ probationary conditions,
given that Dollison was under federal supervised release for drug conspiracy, that
Douglas was on state probation for drug trafficking, that Douglas was potentially
violating his probationary travel restrictions by travelling outside of Anchorage,
that both Defendants were potentially subject to warrantless searches due to
supervised release conditions, that both Defendants were travelling in an unusual
caravanning arrangement in the middle of the night, and that the officers knew
drug dealers to commonly use rental cars to deliver drugs from Anchorage to
Fairbanks. See United States v. Mariscal, 285 F.3d 1127, 1129–30 (9th Cir. 2002);
Burrell v. McIlroy, 464 F.3d 853, 858 n.3 (9th Cir. 2006).
The district court properly concluded that independent reasonable suspicion
also justified extending the stop to search the SUV because, at that point, the
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officers had learned that Defendants had lied about their relationship to the sedan
and its passengers. See United States v. Mayo, 394 F.3d 1271, 1276 (9th Cir.
2005). Lastly, the district court did not err in concluding that the officers lawfully
extended the stop to search the sedan. By this point, Douglas’s probation officer
had confirmed that Douglas was violating his probationary conditions by travelling
beyond Anchorage without permission, establishing independent reasonable
suspicion of criminal activity to justify searching the sedan. Id.
2. Nor did the district court err in finding that Kelly Wylie had apparent
authority to consent to a search of the sedan. United States v. Ruiz, 428 F.3d 877,
880–81 (9th Cir. 2005). Though the sedan’s rental agreement authorized only
Defendants as drivers, Defendants granted Wylie broad access to, and control over,
the sedan, allowing her and another passenger to drive the car without Defendants
and to store their luggage in its cabin. See Id.; United States v. Henderson, 241
F.3d 638, 646–47 (9th Cir. 2000). The district court properly distinguished United
States v. Impink, 728 F.2d 1228 (9th Cir. 1984), in which we held that consent of a
lessor with narrow rights of access was invalid when police intentionally bypassed
a suspect who was present and known to possess a superior privacy interest,
because Douglas denied any connection to the sedan when confronted with the
rental receipt bearing his name, and the search was of only Wylie’s property.
3. Although the district court abused its discretion by admitting
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testimony that a gun in Defendants’ possession was stolen, see United States v.
Boulware, 384 F.3d 794, 800–01 (9th Cir. 2004) (explaining that we review the
district court’s evidentiary decisions at trial for abuse of discretion), its error was
harmless, United States v. Crosby, 75 F.3d 1343, 1349 (9th Cir. 1996). Evidence
that the gun was stolen was inadmissible under Federal Rule of Evidence 401,
because this evidence was relevant only if the Government demonstrated that
Defendants knew the gun was stolen, and the Government offered no evidence of
Defendants’ knowledge on this point. See Poppell v. City of San Diego, 149 F.3d
951, 954 (9th Cir. 1998).
Nonetheless, this error was harmless because there is a “fair assurance” that
the error did not materially affect the trial’s outcome. Crosby, 75 F.3d at 1349.
Even without evidence that the gun was stolen, overwhelming evidence supported
the jury’s verdict, including testimony from Wylie and another informant, a rental
car receipt, a luggage tag connecting the contraband to Defendants, and a DNA
sample connecting Defendants to the sedan’s trunk, which contained the drugs and
firearms.
4. Any error that the district court may have committed in admitting
evidence of Defendants’ prior convictions was also harmless. Id. Even if evidence
of the past convictions had been excluded, there remained significant evidence to
sustain the jury’s verdict, see supra at ¶ 3, such that there is a fair assurance that
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“the verdict was not substantially swayed” by evidence of the prior convictions.
United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).
5. The district court did not abuse its discretion in delivering a
“deliberate indifference” instruction to the jury. United States v. Heredia, 483
F.3d 913, 922 (9th Cir. 2007) (en banc). The district court properly delivered both
“actual knowledge” and “deliberate indifference” instructions, because it correctly
found that both theories were supported by some evidence, and thus a jury could
rationally convict on a deliberate indifference theory after rejecting an actual
knowledge theory. United States v. Yi, 704 F.3d 800, 804 (9th Cir. 2013); United
States v. Jewell, 532 F.2d 697, 699–700 (9th Cir. 1976) (en banc).
6. Finally, the district court did not commit cumulative errors. Although
it was error to admit the evidence that the gun was stolen, there was still
significant, incriminating evidence that the jury could properly consider, see supra
at ¶ 3, to find Defendants guilty of the drug trafficking and firearm charges.
Accordingly, there was no cumulative error. United States v. Lindsay, 931 F.3d
852, 869 (9th Cir. 2019).
AFFIRMED.
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