United States v. Lamalskiou Lowe , 676 F. App'x 728 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10561
Plaintiff-Appellee, D.C. No. 2:14-cr-00004-JAD-VCF-1
v.
MEMORANDUM*
LAMALSKIOU LOWE, AKA
Lanalsikou Lowe, AKA Lanalsikov Lowe,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted January 13, 2017
San Francisco, California
Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.
Lamalskiou Lowe appeals his conviction and sentence for illegal possession
of a handgun as a convicted felon and illegal possession of a controlled substance
with intent to distribute under 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 21 U.S.C.
§§ 841(a), (b)(1)(c). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The district court did not err by denying Lowe’s motion for a new trial
under Brady v. Maryland, 373 U.S. 83 (1963). To establish a violation of Brady
based on the government’s suppression of exculpatory evidence, the defendant
must show, among other things, that he did not know about the existence of the
exculpatory evidence. United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991).
If, however, the “defendant has enough information to be able to ascertain the
supposed Brady material on his own,” there is no Brady violation. Id. Here, Lowe
sufficiently knew about the existence of the county hospital report throughout both
the pretrial proceedings and trial. Notably, Lowe filed seven pretrial motions
expressly requesting the results from Moore’s physical examination at the county
hospital, and he continued these requests throughout trial. The district court
therefore did not err by rejecting Lowe’s Brady claim for failure to establish
suppression. See Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (rejecting Brady
claim when the “[p]etitioner possessed the salient facts regarding the existence of
the records that he claims were withheld”). Moreover, Lowe’s Brady claim also
fails because he has not established that the government had actual or constructive
possession of the county hospital report. See Strickler v. Greene, 527 U.S. 263, 275
n.12 (1999). The report was created by a county hospital, not the government, and
there is no evidence in the record establishing that any local authorities, including
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the hospital, the Clark County District Attorney’s Office, or the Las Vegas
Metropolitan Police Department, provided the report to the government.
2. The district court did not abuse its discretion by failing to grant a new
trial or order a mistrial after the government introduced evidence of Lowe’s prior
sexual assault conviction. We may reverse the district court and order a new trial
only if, when viewing the publication of Lowe’s prior sexual assault conviction “in
the context of the entire trial, it is more probable than not that [the conviction]
materially affected the verdict.” United States v. Dorsey, 677 F.3d 944, 955 (9th
Cir. 2012) (internal quotation marks omitted). When determining whether the
prosecutor’s alleged misconduct affected the jury verdict, we generally presume
that the jury followed the district court’s curative instructions. Miller v. City of Los
Angeles, 661 F.3d 1024, 1030 (9th Cir. 2011). To overcome the presumption, the
defendant must show that “the risk that the jury will not . . . follow instructions is
so great, and the consequences of failure so vital to the defendant, that the practical
and human limitations of the jury system cannot be ignored.” Bruton v. United
States, 391 U.S. 123, 135 (1968).
There is no evidence that the publication of Lowe’s prior sexual assault
conviction improperly affected the jury verdict here. After the government
inadvertently published the unredacted version of the sexual assault conviction, the
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district court immediately instructed the jury to disregard the document. The
district court then instructed the jury to consider Lowe’s previous felony
convictions for the limited purpose of determining whether Lowe was a convicted
felon at the time he allegedly possessed the 9mm handgun. There is no evidence
that the jury failed to follow these instructions. Indeed, the jury’s decision to acquit
Lowe on the .25 caliber handgun charge instead indicates that the jury verdict was
not affected by the publication of the prior sexual assault conviction. See United
States v. de Cruz, 82 F.3d 856, 863 (9th Cir. 1996) (rejecting appeal based on
alleged prosecutorial misconduct in part because the “the fact that the jury
acquitted defendant on one of the charges against her indicates that the jury was
able to weigh the evidence without prejudice”). The district court therefore did not
abuse its discretion in denying Lowe’s mistrial and new trial motions.
3. The district court did not commit plain error by allowing the
government to introduce evidence that Lowe assaulted Moore. The government
may introduce prior bad act evidence under Federal Rule of Evidence 404(b)(2) to
provide background information regarding the circumstances of the charged
offense. United States v. Rrapi, 175 F.3d 742, 748 (9th Cir. 1999). Here, the
government introduced the domestic violence evidence against Lowe for the
limited purpose of providing background information regarding (1) the search
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incident to Lowe’s arrest for domestic violence and (2) the nature of Lowe’s
relationship with Moore. The government’s introduction of the domestic violence
evidence therefore was not improper. Moreover, even if improper, there is no
evidence that the domestic violence evidence “seriously affect[ed] the fairness,
integrity, or public reputation of [the] judicial proceedings” here. Henderson v.
United States, 133 S. Ct. 1121, 1130 (2013). As discussed supra, the jury
ultimately acquitted Lowe on the .25 caliber handgun charge, indicating that the
jury was not prejudiced here.
4. The district court did not err by failing to suppress the cocaine
recovered from Lowe during the search incident to his arrest for domestic violence.
Although the Fourth Amendment generally prohibits law enforcement from
entering a home without a warrant, the government may overcome the presumption
of unconstitutionality by showing that law enforcement received consent to enter
the home. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9th Cir. 2008).
Moreover, once law enforcement receives consent to enter the home, the officers
may arrest a suspect and search the suspect incident to that arrest without having to
first acquire a warrant, so long as the arrest is supported by probable cause. United
States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010). At the suppression hearing,
the district court found that (1) Moore gave the officers consent to enter her and
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Lowe’s shared apartment; (2) Moore had the authority to provide the officers with
consent; (3) the officers did not exceed the scope of Moore’s consent by entering
and then searching the apartment; and (4) given Moore’s allegations of domestic
violence and the visible injuries to her neck and face, law enforcement had
probable cause to arrest Lowe for domestic violence and then search him incident
to that arrest. These findings are sufficient to establish compliance with the Fourth
Amendment, and Lowe does not challenge these findings on appeal. The district
court therefore did not err by failing to suppress the cocaine.
5. The district court did not err by failing to suppress the photograph of
the 9mm handgun recovered during the government’s search of the electronic
contents of Lowe’s cellphone.
First, the government’s search warrant application was supported by
probable cause. “Probable cause . . . is not a high bar[.]” Kaley v. United States,
134 S. Ct. 1090, 1103 (2014). To find probable cause, the magistrate judge need
only find that there is a “fair probability” that the search will reveal “evidence of a
crime.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Here, the government’s search
warrant application provided extensive information establishing that, at the time
law enforcement seized Lowe’s cellphone during his booking and arrest in
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November 2013,1 the phone likely contained evidence of federal firearms and
narcotics violations. This information included: (1) Moore’s statements to law
enforcement that Lowe sold drugs for a living and had previously sold guns; (2)
the fact that the government recovered a .25 caliber handgun, ammunition for two
other firearms, and drug paraphernalia associated with drug trafficking while
searching Lowe and Moore’s shared apartment; (3) the fact that the government
recovered five bags of cocaine packaged for sale while searching Lowe; and (4)
affidavit testimony from an ATF agent stating that, based on his experience and
training in conducting federal firearms and narcotics investigations, drug dealers
commonly use cellphones to facilitate the sale of drugs. This information was
sufficient to establish probable cause.
1
There is no evidence in the record suggesting that the electronic contents of
Lowe’s cellphone changed while the phone was inventoried. Accordingly, the mere
passage of time between Lowe’s arrest in November 2013 and the government’s
search of his phone two months later in January 2014 does not affect the outcome
here. See United States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988) (“The mere
lapse of substantial amounts of time is not controlling . . . .”).
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Second, Officer Zavala’s warrantless search of the physical components of
Lowe’s cellphone did not violate the Fourth Amendment.2 When, as here, the
government lacks probable cause to search a prisoner’s property for investigative
purposes, the government may nevertheless search that property if two conditions
are met: (1) the property was “subject to search” during the prisoner’s initial
booking or arrest, and (2) the search was conducted in a reasonable manner. United
States v. Edwards, 415 U.S. 800, 807 & 808 n.9 (1974). Both conditions were met
here. Law enforcement was entitled to search the physical components of Lowe’s
cellphone during booking and arrest, for example, by removing the backplate and
battery from the phone. See Riley v. California, 134 S. Ct. 2473, 2485-87 (2014).
Moreover, the record provides no evidence establishing that Officer Zavala
searched Lowe’s cellphone in an otherwise unreasonable manner, for example, by
searching the phone on multiple occasions. See Edwards, 415 U.S. at 808 n.9
(observing that otherwise constitutional searches “incident to incarceration” may
nevertheless “violate the dictates of reason either because of their number or their
manner of perpetration” (internal quotation marks omitted)). The record indicates
2
In addition to his Fourth Amendment challenge, Lowe also argues that
Officer Zavala’s search violated Federal Rule of Criminal Procedure
41(e)(2)(A)(i). Because Lowe failed to raise this argument in his motion to
suppress at the district court, this argument is waived. United States v. Morillo,
288 F.3d 1126, 1135 (9th Cir. 2002).
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only that, at the request of federal law enforcement, Officer Zavala obtained
Lowe’s cellphone from the jail’s inventory room, removed the backplate and
battery, and recorded the phone’s serial number. This search was not unreasonable.
See Riley, 134 S. Ct. at 2485, 2487.
6. The district court did not commit clear error by imposing a two-level
sentencing enhancement for obstruction of justice under U.S. Sentence Guidelines
§ 3C1.1. When, as here, the sentencing enhancement is based on the defendant’s
alleged perjurious testimony at trial, the district court cannot rely solely on the jury
verdict to find perjury. United States v. Dunnigan, 507 U.S. 87, 95 (1993). Rather,
“[the] district court must review the evidence and make independent findings
necessary to establish” perjury. Id. This requires the district court to enter factual
findings establishing that the defendant “satisf[ied] all three elements of perjury[:]
falsity, materiality, and willfulness[.]” United States v. Alvarado-Guizar, 361 F.3d
597, 600 (9th Cir. 2004) (citing Dunnigan, 507 U.S. at 96-97). However, the
district court need not make “separate and clear finding[s]” for each element of
perjury; the district court need only make factual findings “encompass[ing] all of
the factual predicates for a finding of perjury.” Id. (internal quotation marks
omitted). Here, the district court reviewed the evidence presented at trial and made
independent findings establishing each element of perjury. Further, these findings
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were clearly supported by the record, including: (1) Lowe’s unequivocal testimony
on direct examination that he never possessed the 9mm handgun; (2) Moore’s
testimony on direct examination establishing that Lowe took possession of the
9mm handgun from Moore; and (3) metadata from Lowe’s cellphone establishing
that someone using the phone took a photograph of the 9mm handgun in
November 2013 at the same time when Lowe was living with Moore in their
shared apartment. These findings are sufficient to uphold a sentencing
enhancement for perjury under section 3C1.1 on clear error review. See United
States v. Taylor, 749 F.3d 842, 848 (9th Cir. 2014) (upholding sentencing
enhancement under section 3C.1.1 when the district court reviewed a recording of
a bond revocation hearing and determined that the defendant “clearly and
unambiguously and under oath, told a story that was simply not true, based on the
totality of the evidence[,] in an effort to persuade the magistrate judge that [he]
should not be taken back into custody”) (internal quotation marks omitted, second
alteration in original)).
AFFIRMED.
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