United States v. Edward Purry, II

FILED
NOT FOR PUBLICATION
AUG 02 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10579
Plaintiff-Appellee, D.C. No. 2:14-cr-00332- JAD
v.
EDWARD JAMESON PURRY II, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted April 18, 2017
San Francisco, California
Before: REINHARDT, TASHIMA, and BERZON, Circuit Judges.
On four occasions in 2013, Appellant Edward J. Purry II purchased guns
from Big Gun Enterprises, LLC, a federally licensed firearms dealer based in
Henderson, Nevada. On each of these occasions, Purry completed the requisite
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Firearms Transaction Record, also known as a Form 4473, on which he represented
that he resided in Nevada.
Purry was indicted on four counts of violating 18 U.S.C. §§ 922(a)(6) and
924(a)(2) for illegally acquiring firearms. The indictment alleged that Purry
knowingly misrepresented his address and his state of residency on the Form
4473s. A jury convicted Purry on all counts. He was sentenced to concurrent
terms of 102 months’ imprisonment.
Purry now appeals his conviction and sentence. First, Purry argues that the
government violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972), by failing to disclose, until shortly before trial,
evidence of Big Gun’s own Form 4473 reporting violations. Second, Purry
challenges the sufficiency of the government’s evidence. Third, Purry objects to a
variety of the district court’s evidentiary rulings. Finally, Purry contends that his
sentence is substantively unreasonable.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. We review alleged Brady and Giglio violations de novo. United
States v. Wilkes, 662 F.3d 524, 534 (9th Cir. 2011) (citation omitted). A Brady /
Giglio violation has three elements: “(1) the evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching; (2) that
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evidence must have been suppressed by the State, either willfully or inadvertently;
and (3) prejudice must have ensued.” United States v. Kohring, 637 F.3d 895, 901
(9th Cir. 2011). “Evidence is prejudicial . . . ‘only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Id. at 902 (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)). In turn, “[t]here is a ‘reasonable probability’ of
prejudice when suppression of evidence ‘undermines confidence in the outcome of
the trial.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
Purry’s Brady / Giglio claim turns on the government’s purported failure
timely to disclose the fact that Big Gun had itself been reprimanded by the Bureau
of Alcohol, Tobacco, Firearms and Explosives for inaccurately completing Form
4473s. Purry argues this evidence would have been both “independently
exculpatory” and valuable “impeachment evidence.”
We are unpersuaded. Purry contends this evidence was exculpatory because,
had it been timely disclosed, he could have pursued the theory that Big Gun’s own
employees were instructing purchasers, like him, to complete the Form 4473s
incorrectly. However, not every late disclosure gives rise to a Brady violation.
See, e.g., United States v. Woodley, 9 F.3d 774, 777 (9th Cir. 1993) (rejecting
Brady claim where potentially exculpatory material was disclosed shortly before
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and even during trial). In fact, “Brady does not necessarily require that the
prosecution turn over exculpatory material before trial.” United States v. Aichele,
941 F.2d 761, 764 (9th Cir. 1991) (citation omitted). Rather, the relevant inquiry is
whether the disclosure, when made, was still of value to the accused. See id. Here,
Purry repeatedly sought to use the evidence at trial, which confirms that the
evidence remained of value to Purry, despite its late disclosure.1 This is enough to
defeat his Brady claim. Id.Purry also argues that evidence of Big Gun’s reporting violations would
have enabled him to impeach the testimony of Big Gun’s owner Gina Allen, who
laid the foundation for admission of the Form 4473s as business records under
Federal Rule of Evidence 803(6). Even assuming, without deciding, that this
evidence would have undermined Allen’s testimony, any resulting error is
harmless because the court made clear that, in the alternative, the Form 4473s were
admissible under Federal Rule of Evidence 801(d)(2), as statements by a party-
opponent. Accordingly, Purry’s Giglio challenge likewise fails.
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To be sure, the district court refused to allow Purry to actually use the
evidence at trial, explaining that the evidence was irrelevant and unduly prejudicial
under Federal Rule of Evidence 403. But this is immaterial for purposes of Brady.
What matters is that, despite the late disclosure, Purry received the evidence from
the government with sufficient time to utilize it at trial. That the court then
excluded the evidence on unrelated grounds does not change this fact.
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2. We review a sufficiency of the evidence challenge de novo. See
United States v. Tucker, 641 F.3d 1110, 1118 (9th Cir. 2011). In so doing, we
construe “the evidence presented against the defendant in the light most favorable
to the government to determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v.
Somsamouth, 352 F.3d 1271, 1274–75 (9th Cir. 2003) (quoting United States v.
Gonzalez-Torres, 309 F.3d 594, 598 (9th Cir. 2002)).
The offense of which Purry was convicted requires that (1) a defendant
knowingly, (2) make a false statement, (3) in connection with the acquisition of a
firearm, (4) that relates to facts material to the legality of the firearm sale. See 18
U.S.C. § 922(a)(6). Purry contends that “[t]he government failed to present
sufficient evidence that [he] knowingly and falsely stated he resided in Nevada and
that [his] statements about his address and state of residence were material to the
firearm sales.”
Both of these arguments fail. First, Purry’s own statements that he lived in
Oakland, California – made to law enforcement and repeated on his applications to
obtain a concealed weapons permit, an identification card, and a UPS mail box –
provide a sufficient basis for concluding that his representations to the contrary on
the Form 4473s were false. Second, Purry’s materiality argument fails under the
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logic of Abramski v. United States, 134 S.Ct. 2259, 2273 (2014), in which the
Court held that information on a Form 4473 is material if the dealer’s knowledge
of its falsity would render the sale unlawful. That is the case here: had Big Gun
known Purry was misrepresenting his state of residence, the sale would have been
unlawful.
Accordingly, we deny Purry’s sufficiency of the evidence challenge.
3. We review a district court’s denial of a motion to exclude evidence
under Rules 403 and 404(b) for abuse of discretion. See United States v. Vo, 413
F.3d 1010, 1017 & n.4 (9th Cir. 2005). A district court’s denial of a motion for a
mistrial is likewise reviewed for abuse of discretion. See United States v. Lemus,
847 F.3d 1016, 1024 (9th Cir. 2016). Finally, we consider de novo a district
court’s denial of a Confrontation Clause claim. See United States v. Cazares, 788
F.3d 956, 972 (9th Cir. 2015).
A. Purry’s first evidentiary objection takes issue with the
admission of “evidence indicating he shipped firearms from Nevada to California.”
Prior to trial, Purry unsuccessfully sought to exclude the evidence via a motion in
limine. During trial, Purry moved, again unsuccessfully, for a mistrial on the same
issue. The district court admitted the evidence because it tended to show that Purry
was not a resident of Nevada, which was probative of an element of the charged
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offense. Because this evidence corroborated other evidence as to Purry’s state of
residence, as well as Purry’s motive for making false statements, we cannot find
the court’s ruling to be an abuse of discretion.
B. Purry next challenges the efficacy of the district court’s limiting
instruction as it relates to evidence that Purry used the alias “Kenny Clutch.” This
argument fails because “our court assumes that the jury listened to and followed
the trial judge’s instructions.” United States v. Escalante, 637 F.2d 1197, 1202
(9th Cir. 1980) (citation omitted). See also United States v. Gallenardo, 579 F.3d
1076, 1082 (9th Cir. 2009) (affirming denial of motion for a mistrial because it is
“presume[d] that the jury followed the district court’s limiting instruction”).
Because Purry has advanced no reason why we should depart from this well-
established principle in this case, we reject this argument.
C. Purry’s third evidentiary objection concerns the court’s
admission, over his objection, of photographs depicting firearms that had been
seized by the U.S. Postal Service in California. Purry challenges the evidence as
unduly prejudicial under Rule 403. We cannot agree. Several factors support
affirming the district court. First, this is not a case where weapons had no
connection to the offenses charged; rather, the crux of the government’s case was
that Purry was buying guns in Nevada to unlawfully ship them to California.
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Second, the risk of undue prejudice is further reduced because the firearms
pictured, while not the guns referenced in the indictment, were, nevertheless,
actually shipped by Purry. Finally, we afford trial courts “wide discretion” when
applying “the broad contours of Rule 403[.]” United States v. Layton, 767 F.2d
549, 554 (9th Cir. 1985). Accordingly, we conclude that the district court did not
abuse its discretion in this instance.
D. Purry’s next evidentiary challenge takes issue with the district
court’s admission of evidence – both photographic and testimonial – suggesting
that Purry possessed more guns than the fourteen charged in the indictment.
According to Purry, the district court should have granted a mistrial on this basis.
We disagree.
Even accepting Purry’s premise that this evidence was prejudicial, we have
held that “[w]here evidence heard by the jury is later ruled inadmissible, a
cautionary instruction is ordinarily sufficient to cure any alleged prejudice to the
defendant.” United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985).
“Declaring a mistrial is appropriate only where a cautionary instruction is unlikely
to cure the prejudicial effect of an error.” Id. Here, after reciting the charges in the
indictment, the district court instructed the jurors that “[y]ou are here only to
determine whether the defendant is guilty or not guilty of the charges in the
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Indictment,” and that “[t]he defendant is not on trial for any conduct or offense not
charged in the Indictment.” This instruction was sufficient to overcome any
prejudice resulting from the challenged evidence. Accordingly, we deny Purry’s
fourth evidentiary challenge.
E. Purry’s final evidentiary objection challenges the district
court’s admission of evidence relating to Dan Tillman, the Big Gun employee who
partially completed some of the Form 4473s at issue in this case. Purry contends
that because he never had an opportunity to cross-examine Tillman, the admission
of this evidence violated the Sixth Amendment’s Confrontation Clause. We
disagree. As to the Form 4473s themselves, they are business records and
therefore “are generally admissible absent confrontation.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 324 (2009). See also United States v. Bland, 961
F.2d 123, 127 (9th Cir. 1992) (admitting Form 4473s as business records).
Likewise, the challenged testimony as to the same was not offered for the truth of
the matter asserted. Instead, it was offered to explain why law enforcement
decided to follow up on Purry’s Form 4473s. Such testimony cannot give rise to a
Confrontation Clause claim. See Crawford v. Washington, 541 U.S. 36, 59 n.9
(2004) (“[The Confrontation Clause] does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted.”).
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4. We review the substantive reasonableness of a sentence for abuse of
discretion. See United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). Purry
was sentenced to concurrent terms of 102 months’ imprisonment. The district
court determined Purry’s sentence by calculating a guidelines range of 97 to 121
months, based on an Adjusted Offense Level of 30 and a Criminal History
Category of I. Because the district court imposed a within guidelines sentence and
sufficiently explained why the sentence adopted was appropriate, Purry’s sentence
was substantively reasonable. See United States v. Blinkinsop, 606 F.3d 1110,
1116 (9th Cir. 2010) (“[W]hen a district judge imposes a sentence within the
Guidelines range, ‘it is probable that the sentence is reasonable,’ because the
judge’s application of the § 3553(a) factors accords with the Sentencing
Commission’s independent application of those factors in the ‘mine run of
cases.’”).
AFFIRMED.
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