and Submitted September 14, 2017 San Francisco, California
from the United States District Court for the Northern
District of California D.C. No. 3:14-cr-00412-TEH-1 Thelton
E. Henderson, Senior District Judge, Presiding
T. Chiu (argued), Erin E. Wilk, and Niall E. Lynch, Latham
& Watkins LLP, San Francisco, California, for
J. Chan (argued), Assistant United States Attorney; J.
Douglas Wilson, Chief, Appellate Division; Brian J. Stretch,
United States Attorney; United States Attorney's Office,
San Francisco, California; for
Before: Eugene E. Siler, [*] Richard C. Tallman, and Carlos T.
Bea, Circuit Judges.
panel affirmed the defendant's conviction as a felon in
possession of a firearm, and, on the government's
cross-appeal, vacated the sentence and remanded for
panel held that the warrantless searches of the
defendant's cell phone were constitutionally reasonable,
given his status as a parolee and his reduced expectation of
privacy. The panel held that delays in searching his phone
were not unreasonable.
the defendant's argument that a handgun discovered during
a search of his aunt's residence should have been
suppressed, the panel held that the district court did not
clearly err in finding that the defendant's aunt gave
valid verbal consent for the search, where the district court
credited the officers' testimony and not that of the
panel rejected the defendant's challenge to the admission
of testimony from an officer about the defendant's
aunt's out-of-court statements in a recorded interview.
The panel held that the defendant's aunt's statements
were not hearsay and their admission did not violate the
defendant's Confrontation Clause rights, given the
government's need to rebut the defendant's
third-party culpability defense. The panel held that, in any
event, any error was harmless and did not affect the
defendant's substantial rights.
panel held that the district court did not abuse its
discretion in denying the defendant's Daubert
motion to exclude a firearms examiner's testimony and a
written ballistics analysis.
United States v. Barragan, 871 F.3d 689 (9th Cir.
2017), the panel, on the government's cross-appeal,
vacated the defendant's sentence and remanded with
instructions to treat the defendant's prior armed robbery
conviction under Calif. Penal Code § 211(a) as a crime
of violence under the Sentencing Guidelines.
TALLMAN, Circuit Judge
Johnson was convicted as a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1) &
924(e), after an emergency 911 call reporting an attempted
suicide led San Francisco police to discover a handgun at the
apartment where Johnson was temporarily staying while on
parole. Johnson challenges the denial of two motions to
suppress evidence gathered during the warrantless search of
the residence and a subsequent warrantless search of his cell
phone, which revealed incriminating evidence tying him to the
gun. Johnson also appeals the admission of witness testimony
on hearsay grounds, and he claims a violation of his
Confrontation Clause rights at trial. Finally, Johnson
challenges the denial of his Daubert motion to
exclude expert ballistics testimony further linking him to
the weapon found by the police.
government cross-appeals the district court's
determination at sentencing that Johnson's prior
conviction for armed robbery under California Penal Code
("CPC") § 211(a) did not qualify as a
"crime of violence" for purposes of establishing
Johnson's base offense level. U.S.S.G. §§
2K2.1, 4B1.2. We affirm the district court on all issues
raised in Johnson's direct appeal, but vacate
Johnson's sentence based on the government's
cross-appeal and remand with instructions that a conviction
under CPC § 211(a) qualifies as a crime of violence,
warranting a base offense level of 24 under U.S.S.G. §
February 2, 2014, Valentino Johnson's ex-girlfriend
called 911 from Emeryville, California, to report that
Johnson had threatened to kill himself with a gun. The caller
informed the dispatcher that Johnson was at the home of his
aunt, Luana McAlpine,  in San Francisco, and that she had
received a "hysterical" call from McAlpine alleging
Johnson had shot himself.
Francisco Police Department ("SFPD") officers were
dispatched to McAlpine's apartment in a Bayview District
public housing project. Before they arrived, responding
officers received additional information about Johnson.
Dispatch informed the officers that Johnson did not live at
the Bayview District apartment. Mobile data terminal readouts
from patrol car computers showed that Johnson's address
on file with the California Department of Motor Vehicles was
in Emeryville, across the bay, in Alameda County. But the
readouts also showed that a domestic violence temporary
restraining order had been issued on January 29, commanding
that Johnson move out from the Emeryville address. Four days
earlier, SFPD officers in the Bayview area, where McAlpine
resided, had also received an All-Points Bulletin
("APB") advising that Johnson was a suspect in a
recent armed burglary involving a damaged 9mm handgun.
According to the APB, Johnson was currently on mandatory
parole supervision and had prior arrests for murder,
attempted murder, assault, kidnapping, false imprisonment,
domestic violence, carjacking, and robbery.
officers discovered the 911 call had been a false alarm. They
saw Johnson-alive and unharmed-peering down from an upstairs
window, and officers asked to speak with Johnson and McAlpine
outside. Johnson and McAlpine complied, but the parties
dispute what happened next. We credit the testimony admitted
by the district court at the evidentiary hearing, after which
the district judge made express credibility findings as to
whose stories the fact-finder believed. SFPD Officer Wise
testified that both McAlpine and Johnson stated that Johnson
lived at the San Francisco residence. On direct examination,
McAlpine testified she told police only she and her daughter,
Norrisha Rivers, lived there. But on cross-examination,
McAlpine testified she may have told officers that Johnson
was either living or paroled there (and that Johnson had
provided his parole officer with that address). The district
court credited the officers' testimony.
said that within minutes, more than a dozen officers had
arrived at the scene. None had guns drawn. According to
Officers Cader and Wise, they asked McAlpine if officers
could check inside the apartment to ensure no one had been
hurt, and McAlpine consented. McAlpine, on the other hand,
testified that she assumed the officers were conducting a
parole search (pursuant to a condition of Johnson's
parole status, about which she previously knew), and
therefore she felt she could not refuse entry to the
officers. Wise testified he did not inform McAlpine that the
search was a parole search. The search did not begin until
McAlpine consented. The officers then proceeded to search the
apartment without a warrant.
the apartment, Officer Cader discovered a Taurus PT-92
semi-automatic 9mm pistol in a box in an upstairs bedroom
used by Norissha Rivers. The magazine of the gun was missing,
and part of the gun's heel was damaged. Officers also
discovered 68 rounds of various types of ammunition in a dry
bag on a second-floor balcony outside Rivers's bedroom.
In Rivers's bedroom, they also found Johnson's
clothing, mail, and three prescription bottles in his name,
as well as clothing belonging to Rivers's boyfriend,
the apartment, Sergeant Plantinga asked McAlpine in a
recorded conversation about the gun's ownership. McAlpine
responded, "I know it's not mine, I know it's
not my daughter's, and there's only one other person
it could've been, and that is Valentino Johnson."
Plantinga had McAlpine sign a written consent form
authorizing the search. McAlpine testified that, around the
time of her conversation with Sergeant Plantinga, another
officer threatened that she could lose her public housing if
she was not honest and truthful. The officers denied that
threat, stating that only after the gun was found did
McAlpine become upset because it could cause her problems
with the housing authority. The district court explicitly
found that the testimony of the several officers was more
credible than that of McAlpine.
the search, officers handcuffed Johnson outside the
apartment. Lieutenant Braconi explained to Johnson that SFPD
was responding to a 911 call from his ex-girlfriend about an
attempted suicide. Johnson told Lieutenant Braconi to check
the call logs and text messages on his cell phone to prove he
had not contacted his ex-girlfriend or threatened to kill
himself. Braconi verified that no calls were made from
Johnson's cell phone around the time of the 911 call.
the gun was discovered, Johnson was taken into custody.
During an interview with Sergeants Jonas and Plantinga at the
Bayview police station, Johnson said he had been staying with
McAlpine because he had fought with his ex-girlfriend and
later had been served with a restraining order. He told Jonas
and Plantinga to again "look at the text messages on
[his] phone" to verify that he had tried to reconcile
with his ex-girlfriend around January 21, 2014. After the
interview, Johnson remained in custody and his phone was
given to Sergeant Jonas for forensic analysis.
days later, on February 5, 2014, SFPD's multimedia
forensics unit reported to Jonas that they were unable to
make a digital copy of the phone's contents because the
phone was too new for the unit's software. Instead, Jonas
searched the phone by hand without first obtaining a warrant.
Sergeant Jonas scrolled through old text messages sent from
Johnson's phone, making screen shots of relevant
information. He found an incriminating text sent on January
28, 2014, that read: "Who you know that has 9mm clips? I
just busted mine. It's a PT-92 Taurus. . . . So how do I
get it?" One year later, on February 2, 2015, after
Johnson had been indicted on federal charges but ...