United States v. Brian Wright ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 1 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 19-10152
Plaintiff-Appellee, D.C. No.
2:17-cr-00160-JAD-VCF-1
v.
BRIAN KEITH WRIGHT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted October 18, 2021
San Francisco, California
Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,** International
Trade Judge.
Brian Wright appeals his conviction after a jury trial for armed robbery of two
jewelry stores in Las Vegas. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
1. Prior to issuance of the Supreme Court’s opinion in Carpenter v. United
States, 138 S. Ct. 2206 (2018), which holds that a warrant is required to obtain such
data, investigators obtained a state court order under the Stored Communications
Act (SCA), 18 U.S.C. § 2703(d), to access Wright’s historic cell phone location rec-
ords from his carrier. Invoking Carpenter, Wright moved to suppress. The district
court denied his motion, applying the good-faith exception to the exclusionary rule.
We review the denial of a motion to suppress and the application of the exclusionary
rule de novo. United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en
banc).
If the affidavit used to obtain the state court order “satisfied the [SCA’s] then-
lawful requirements,” United States v. Korte, 918 F.3d 750, 758–59 (9th Cir. 2019),
the good-faith exception to the exclusionary rule applies. Under the SCA, the gov-
ernment was required to establish (1) “specific and articulable facts” showing (2)
“reasonable grounds to believe” that the information sought was (3) “relevant and
material” to an ongoing criminal investigation. See 18 U.S.C. § 2703(d).
The affidavit used to obtain the state court order presented “specific and ar-
ticulable facts” establishing that the phone of a person whom investigators deter-
mined was “likely involved” in one of the robberies—Deandre Brown—was in “sub-
stantial contact . . . before, during[,] and after” the robbery with a phone investigators
determined to be Wright’s. These facts established “reasonable grounds to believe”
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that the information sought would be “relevant and material” to the investigation
because the location data for a cell phone in contact with a suspected armed robber
before, during, and after the robbery bears on the probability that the phone’s user
was also involved. The district court therefore did not err in finding the good-faith
exception satisfied.
2. Wright contends the district court erred by permitting the prosecution to
elicit testimony that he persuaded co-defendant Aquail Harris to participate in the
robberies by claiming to have successfully robbed jewelry stores before. In admit-
ting this evidence, the district court distinguished between direct evidence of prior
robberies and “statements that [Wright] allegedly made to Harris” bragging about
prior robberies, the latter of which the court characterized as “inextricably inter-
twined” evidence necessary to permit the prosecution to offer a coherent story. We
review a district court’s evidentiary rulings for abuse of discretion and will reverse
only if nonconstitutional error more likely than not affected the verdict. United
States v. Whittemore, 776 F.3d 1074, 1077–78 (9th Cir. 2015).
The district court correctly applied United States v. Vizcarra-Martinez, 66
F.3d 1006, 1012–13 (9th Cir. 1995), in finding the testimony of Wright’s bragging
to be “inextricably intertwined” with the alleged criminal conduct before it. See also
United States v. Beckman, 298 F.3d 788, 793–94 (9th Cir. 2002); United States v.
DeGeorge, 380 F.3d 1203, 1220 (9th Cir. 2004). Wright’s reliance on United States
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v. Green, 648 F.2d 587 (9th Cir. 1981), fails under Federal Rule of Evidence 403
because Green prohibited only evidence that was of inconsequential probative sig-
nificance or was not addressed to a contested issue. Here, Harris’s testimony was
probative because it corroborated the government’s theory that Wright master-
minded the robberies. Finally, the district court limited the prosecution by prohibit-
ing evidence that Wright was charged with a robbery of which he was not convicted
and by only allowing testimony that he boasted of his robbery prowess. The point
was not whether his statements were true—the point was that he made them to per-
suade Harris to participate.
3. Wright also contends the district court erred in allowing the prosecution to
introduce evidence that he made threatening statements to alleged co-conspirators.
He argues the evidence was more prejudicial than probative and the statements were
not threats. The district court, citing Ortiz-Sandoval v. Gomez, 81 F.3d 891 (9th Cir.
1996), found that “threats are relevant to consciousness of guilt,” and then instructed
the prosecution to limit the testimony to ensure the jury would not learn why any of
the witnesses were in court or whether they were in custody for any reason.
While Ortiz-Sandoval recognized that introduction of evidence of threats
poses the risk of a jury convicting because the defendant is a “bad man,” the court
also noted the threat in that case was “not particularly inflammatory or macabre” and
that the district court gave a limiting instruction. Id. at 898. Here, the district court
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gave a limiting instruction substantively identical to the one approved in Ortiz-Sand-
oval, and Wright admits that his statements were not “particularly menacing.”
“Under the abuse of discretion standard, the district court’s discretion cannot
be reversed unless this court has a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached upon a weighing of
the relevant factors.” Parker v. Joe Lujan Enters., Inc., 848 F.2d 118, 121 (9th Cir.
1988). Even if Wright is correct that his statements had minimal probative value and
were not really threats, the district court’s decision to follow Ortiz-Sandoval was not
a “clear error of judgment.”
4. Finally, Wright argues that even if no error individually supports reversal,
the cumulative weight of all the purported errors warrants a new trial when analyzed
as a whole. Because we find his arguments on the individual issues meritless, we
likewise find no cumulative error.
AFFIRMED.
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