United States v. Ulysses Ward ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 7 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30153
Plaintiff-Appellee, D.C. No.
3:19-cr-00059-SLG-MMS-1
v.
ULYSSES EDWARD WARD, AKA Uly, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted October 5, 2021**
Seattle, Washington
Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
Defendant Ulysses Edward Ward was convicted of one count of distribution
of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Ward
challenges the district court’s admission of a confidential informant’s audio and
video recordings into evidence over defense counsel’s Confrontation Clause
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
objection. Ward also contends that the district court erred by not finding that his
Brady rights were violated when the prosecution did not reveal the confidential
informant’s identity or call the informant to testify. Brady v. Maryland, 373 U.S. 83(1963). Because the parties are familiar with the facts, we do not recount them here,
except as necessary to provide context to our ruling. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.
This court reviews de novo alleged violations of the Confrontation Clause.
United States v. Cazares, 788 F.3d 956, 972 (9th Cir. 2015). The Confrontation
Clause prohibits admitting out-of-court testimonial statements without the
opportunity for cross examination, but “does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.”
Crawford v. Washington, 541 U.S. 36, 53–54, 59 n.9 (2004). Here, the district court
properly admitted the confidential informant’s statements along with a jury
instruction to consider these statements not “for the truth of the matter asserted,” but
rather only for context. Because the confidential informant’s statements were not
offered for their truth, “the admission of such context evidence does not offend the
Confrontation Clause.” United States v. Barragan, 871 F.3d 689, 705 (9th Cir.
2017) (quoting United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006)).
Ward also contends that his Brady rights were violated because the
government did not disclose the identity of the confidential informant before trial or
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call the informant to testify. Because Ward did not raise this Brady claim in the
district court, we review “to determine if [its] denial would constitute plain error
affecting the appellant’s substantial rights.” United States v. Guzman-Padilla, 573
F.3d 865, 890 (9th Cir. 2009).
To bring a successful Brady claim, “(1) the evidence at issue must be
favorable to the accused, (2) the evidence must have been suppressed by the State,
and (3) the suppression must have been prejudicial.” Comstock v. Humphries, 786
F.3d 701, 708 (9th Cir. 2015). Here, the government did not suppress evidence
because it has a limited privilege to withhold the identity of confidential informants.
Roviaro v. United States, 353 U.S. 53, 59–60 (1957); United States v. Sanchez, 908
F.2d 1443, 1451 (9th Cir. 1990). The defendant bears the burden to prove the need
for disclosure of a confidential informant. Sanchez, 908 F.2d at 1451. Ward
contends that the government suppressed evidence because “by not naming, or
calling, the witness,” it avoided pretrial litigation about whether the identity of the
informant should be disclosed. However, Ward’s counsel could have raised a
motion for disclosure, especially because Ward received the confidential informant’s
audio and video recordings before trial. The government’s nondisclosure of the
confidential informant’s identity does not constitute plain error affecting his
substantial rights.
The judgment of the district court is AFFIRMED.
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