United States v. Anthony McGee ( 2015 )

FILED
NOT FOR PUBLICATION JUN 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10363
Plaintiff - Appellee, D.C. No. 3:12-cr-00052-EMC-1
v.
MEMORANDUM*
ANTHONY MCGEE,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted May 11, 2015
San Francisco, California
Before: PAEZ and CLIFTON, Circuit Judges and KOBAYASHI,** District Judge.
Anthony McGee appeals his conviction and sentence for felon in possession
of a firearm and ammunition, possession with intent to distribute
methamphetamine, and possession of a firearm in relation to drug trafficking,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Leslie E. Kobayashi, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
pursuant to 18 U.S.C. § 922(g), 21 U.S.C. § 841(a), and 18 U.S.C. § 924(c),
respectively. McGee contends that the district court erred by: (1) holding an
evidentiary hearing on his motion to suppress when the Government’s opposition
was not supported by sworn declarations; (2) denying his motion to suppress the
firearm and methamphetamine evidence; (3) denying his motions to disclose the
identities of the confidential informants who tipped off the officers who arrested
him; (4) denying his motion for acquittal for insufficiency of the evidence;
(5) failing to dismiss the superseding indictment for failure to arraign; and
(6) failing to dismiss the felon in possession charge for constructive amendment.
For the reasons explained below, we affirm.
1. The district court did not abuse its discretion in finding that the police
reports attached to McGee’s motion to suppress, which were signed under penalty
of perjury, created disputes of fact requiring an evidentiary hearing. See Alliance
of Nonprofits for Ins., Risk Retention Grp. v. Kipper, 712 F.3d 1316, 1327 (9th Cir.
2013); United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012).
2. The district court did not err in denying McGee’s motion to suppress.
McGee may have had the right to refuse to speak with the officers when they first
approached him on the hotel stairwell. See United States v. Drayton, 536 U.S. 194,
200-01 (2002); Florida v. Bostick, 501 U.S. 429, 434 (1991). After he shoved his
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hands in his pockets and fled, however, under the totality of the circumstances, the
officers had reasonable suspicion to detain him for their own safety and the safety
of other hotel occupants. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000);
Terry v. Ohio, 392 U.S. 1, 30-31 (1968); United States v. Smith, 633 F.3d 889, 894
(9th Cir. 2011). Further, since he resisted, it was reasonable for the officers to use
force. See United States v. Cervantes-Flores, 421 F.3d 825, 830 (9th Cir. 2005)
(per curiam), overruled in part on other grounds by Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009). Because the use of force did not convert the
investigative stop into a full-blown arrest, probable cause was not necessary. See
Green v. City & Cnty. of San Francisco, 751 F.3d 1039, 1047 (9th Cir. 2014).
3. The district court did not abuse its discretion in denying McGee’s
motion to identify the confidential informants. It properly applied Roviaro v.
United States, 353 U.S. 53 (1957), and its progeny, see, e.g., United States v.
Henderson, 241 F.3d 638, 645-46 (9th Cir. 2000), held in-camera reviews with the
officers who interviewed the informants, and balanced the public interest in
confidentiality with McGee’s interest in defending himself against the charges.
Nor did the court abuse its discretion in determining that McGee’s “mere
suspicion[s]” – that the informants did not exist and that the officers planted the
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firearm – were insufficient to require disclosure. See United States v. Rowland,
464 F.3d 899, 909 (9th Cir. 2006).
4. Viewing the evidence in the light most favorable to the Government, a
rational juror could find the evidence supported the conviction. See United States
v. Ruiz-Lopez, 749 F.3d 1138, 1141 (9th Cir. 2014) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Since the Government presented evidence that McGee’s
DNA was found on the bag of methamphetamine in Room 301, the design of the
baggies in the room matched the baggies found on his person, and McGee had
signed in as an overnight guest in the hotel registry, the district court did not err in
concluding that a rational jury could have found McGee in possession of the
methamphetamine beyond a reasonable doubt. See e.g., United States v. Duenas,
691 F.3d 1070, 1084 (9th Cir. 2012) (defining “possession” for a drug offense).
5. The district court did not plainly err in denying McGee’s motion for a
new trial based on its failure to arraign McGee on the superseding indictment. The
failure to arraign was a technical error, which does not require reversal, since
McGee was fully aware of the charges against him, and heard them from his
counsel and the district court during trial. See Garland v. Washington, 232 U.S.
642, 645 (1914); United States v. Romero, 640 F.2d 1014, 1015 (9th Cir. 1981).
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6. Any variance between the indictments for possessing a “KSI 9mm
handgun” and testimony from the Government’s expert that Norinco manufactured
the 9 millimeter handgun in China and KSI imported it, was minor and surplusage,
and McGee has made no showing of prejudice. See United States v. Hartz, 458
F.3d 1011, 1019, 1021-23 (9th Cir. 2006).
AFFIRMED.
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