United States v. Byron Dredd ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50220
Plaintiff-Appellee, D.C. No.
2:15-cr-00569-DSF-1
v.
BYRON DREDD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted October 14, 2020
Pasadena, California
Before: GOULD and LEE, Circuit Judges, and KORMAN,** District Judge.
Defendant-Appellant Byron Dredd is a former deputy with the Los Angeles
Sheriff’s Department (“LASD”). In 2019, Dredd was convicted following a jury
trial for making false statements to the FBI in violation of 18 U.S.C. § 1001.
The conviction stemmed from a 2011 incident Dredd observed involving
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
several other LASD deputies who assaulted a visitor to the jail, Gabriel Carrillo,
and brought false charges against him. Dredd wrote an incident report stating that
Carrillo had only been handcuffed on one hand, used the cuffs as a weapon,
punched another deputy in the chest, and tried to escape the breakroom. In August
2011, Carrillo filed a claim with the Sheriff’s Department, and the FBI began
investigating his account of the incident. The FBI interviewed Dredd on July 17,
2012, during which Dredd repeated his account—that Carrillo was the aggressor—
in more detail. In 2019, a jury found Dredd guilty of making false statements in
the 2012 FBI interview. As reflected in the verdict form, the jury found that all
three of Dredd’s statements about the Carrillo incident charged in the indictment
were materially false.
On appeal, Dredd argues that the district court erred by admitting or
excluding specific evidence, which he claims violated his constitutional right to
present a defense. Dredd also argues that the government constructively amended
the indictment and that his 12-month sentence was not procedurally and
substantively reasonable. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
We review Dredd’s evidentiary claims for abuse of discretion. United States
v. Thornhill, 940 F.3d 1114, 1117 (9th Cir. 2019). We will find an abuse of
discretion “only when [left with] a definite and firm conviction that the district
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court committed a clear error of judgment.” Id.
First, Dredd argues that the district court erred by limiting Dredd’s
testimony about the substance of his many communications with Sergeant
Gonzalez after the government introduced evidence of the number of contacts
between them. We disagree. The district court permitted Dredd to testify to
whether the conversations with Gonzalez were about the 2011 Carrillo incident,
and any marginal relevance of the specific content of the communications was
substantially outweighed by unfair prejudice under Federal Rule of Evidence 403.
See United States v. Joetzki, 952 F.2d 1090, 1094 (9th Cir. 1991). Second, the
district could did not abuse its discretion by excluding evidence of Dredd’s prior
acquittals on different counts. The exclusion is justified by our decision in
Nordgren v. United States, 181 F.2d 718, 721 (9th Cir. 1950), which has not been
explicitly or impliedly overruled and is consistent with our sister circuits. See, e.g.,
Jacobson v. Mott, 623 F.3d 537, 542 (8th Cir. 2010).
Dredd’s other evidentiary claims, including his constitutional claim, are
unavailing. The five-year phone records were admissible to prove Dredd had a
motive to lie to protect Gonzalez, and trial courts have “wide discretion” to admit
even “highly prejudicial” motive evidence. United States v. Parker, 549 F.2d
1217, 1222 (9th Cir. 1977). The trial court likewise has latitude to exclude
cumulative character witnesses. United States v. Scholl, 166 F.3d 964, 972 (9th
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Cir. 1999). The other deputies’ incident reports were admissible as evidence that
Dredd was a knowing participant in the cover-up because the lies Dredd told to the
FBI matched the lies in his colleagues’ reports. The sentences of those deputies
were properly excluded because providing jurors sentencing information of any
kind may “invite[] them to ponder matters that are not within their province,
distract[] them from their fact-finding responsibilities, and create[] a strong
possibility of confusion.” Shannon v. United States, 512 U.S. 573, 579 (1994).
Because Dredd has not shown that the district court erroneously excluded
evidence, he cannot establish a constitutional violation. See United States v.
Waters, 627 F.3d 345, 354 (9th Cir. 2010).
Dredd next claims that the government constructively amended the
indictment. We review constructive amendment claims de novo. United States v.
Davis, 854 F.3d 601, 603 (9th Cir. 2017). “A constructive amendment ‘occurs
when the charging terms of the indictment are altered, either literally or in effect,
by the prosecutor or a court after the grand jury has last passed upon them.’”
United States v. Soto-Barraza, 947 F.3d 1111, 1118 (9th Cir. 2020) (citation
omitted). Dredd’s claim fails as a threshold matter because he compares the
indictment to the government’s arguments pre-trial, rather than the evidence
introduced at trial. See id. at 1119. Even with the right comparison, the evidence
presented, jury instructions, and verdict form were all consistent with the count
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charged. See id. at 1118.
Finally, Dredd argues that the district court’s 12-month sentence was not
procedurally and substantively reasonable because the court engaged in double-
counting. We review the district court’s application of the Sentencing Guidelines
for abuse of discretion, and the ultimate sentence for reasonableness. United States
v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006). The district court did not engage
in impermissible double-counting by merely assessing the nature and
circumstances of the offense with reference to Dredd’s lies at trial. A district court
is “not prohibited from considering the extent to which the Guidelines did not
sufficiently account for the nature and circumstances of [the defendant’s] offense .
. . even though the Guidelines account for these factors either implicitly or
explicitly, to some extent.” United States v. Christensen, 732 F.3d 1094, 1101 (9th
Cir. 2013) (emphasis in original).
AFFIRMED.1
1
Before this case was submitted, Appellant filed two motions: a motion to strike a
photograph from Appellees’ answering brief and a motion to transmit physical
exhibits. The motion to strike is DENIED. The motion to transmit physical
exhibits is DENIED because reviewing the exhibits is not necessary to resolve the
appeal under Circuit Rule 27-14.
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