United States v. Etienne Devoe ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30163
Plaintiff-Appellee, D.C. No.
4:14-cr-00002-RRB-1
v.
ETIENNE DEVOE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 4, 2016
Anchorage, Alaska
Before: FISHER, PAEZ, and HURWITZ, Circuit Judges.
Etienne Devoe appeals his conviction for possession of powder cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He
contends that the district court committed three reversible errors. 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 abuse its discretion in admitting evidence from and
testimony about the Gillam Way search under Federal Rule of Evidence 404(b).
“Other acts evidence is admissible under Rule 404(b) if it (1) tends to prove a
material point in issue; (2) is not too remote in time; (3) is proven with evidence
sufficient to show that the act was committed; and (4) if admitted to prove intent, is
similar to the offense charged.” United States v. Beckman, 298 F.3d 788, 794 (9th
Cir. 2002). Devoe argues the first two of these criteria are not met. We disagree.
Evidence seized during the Gillam Way search tended to show that Devoe knew
about the drugs found in his duffel bag during the prior search at Wood River
Drive. Although not highly probative, the Gillam Way evidence shed some light
on Devoe’s “intent, . . . knowledge, . . . [and] absence of mistake.” Fed. R. Evid.
404(b)(2); see United States v. Lozano, 623 F.3d 1055, 1059-60 (9th Cir. 2010).
Nor was the Gillam Way evidence—found sixteen months after the Wood River
Drive search—too remote in time. See United States v. Rude, 88 F.3d 1538, 1550
(9th Cir. 1996) (“This circuit has not adopted a bright line rule concerning
remoteness in time and, where the prior acts were similar to those charged,
previous decisions have upheld admission of evidence of acts up to twelve years
old.”) (citation omitted).
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2. As the government conceded, the district court erred in failing to instruct the
jury how to evaluate Trooper Joshua Moore’s dual role testimony. See United
States v. Torralba-Mendia, 784 F.3d 652, 658 (9th Cir. 2015). That error did not,
however, affect Devoe’s “substantial rights.” United States v. Gonzalez-Aparicio,
663 F.3d 419, 428 (9th Cir. 2011). The “dangers inherent in permitting
investigating police officers to . . . testify as both percipient and expert witnesses”
do not apply here because Trooper Moore’s lay testimony was limited to his
percipient observations of the Gillam Way search and did not touch on disputed
facts. See United States v. Anchrum, 590 F.3d 795, 803 (9th Cir. 2009). Because
Trooper Moore’s lay testimony is not disputed, it matters little whether he
“attain[ed] unmerited credibility.” United States v. Freeman, 498 F.3d 893, 903
(9th Cir. 2007). Therefore, this case is distinguishable from United States v. Vera,
where the FBI agent interpreted wiretapped conversations that were actually “well
within the understanding of an ordinary juror.” 770 F.3d 1232, 1246 (9th Cir.
2014).
3. Finally, neither Trooper Moore nor Officer William Moore gave “improper
testimony” that “invaded the province of the jury” because neither offered “an
opinion about whether the defendant did or did not have a mental state or condition
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that constitutes an element of the crime charged or of a defense.” Fed. R. Evid.
704(b).
Officer Moore testified that he did not conduct any fingerprinting or DNA
testing of the Wood River Drive evidence “because at the time we knew who [it]
belonged to.” Even if the district court abused its discretion in admitting this
evidence, the error was harmless because other officers gave almost identical
testimony to which Devoe did not object.
Trooper Moore testified that he seized the Gillam Way evidence because
“[i]t all appeared to me like it was associated with drug trafficking or distribution.”
We review this statement for plain error because Devoe did not object to its
admission, and we find none. Trooper Moore never stated to whom he believed the
evidence belonged. Moreover, his testimony related to the Gillam Way search, not
the Wood River Drive search that uncovered the drugs for which Devoe was
charged.
AFFIRMED.
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