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United States v. Johnson

United States Court of Appeals, Ninth Circuit

November 27, 2017

United States of America, Plaintiff-Appellee/ Cross-Appellant,
v.
Valentino Johnson, Defendant-Appellant/ Cross-Appellee.

          Argued and Submitted September 14, 2017 San Francisco, California

         Appeal 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

          Aaron T. Chiu (argued), Erin E. Wilk, and Niall E. Lynch, Latham & Watkins LLP, San Francisco, California, for Defendant-Appellant/Cross-Appellee.

          Merry 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 Plaintiff-Appellee/Cross-Appellant.

          Before: Eugene E. Siler, [*] Richard C. Tallman, and Carlos T. Bea, Circuit Judges.

         SUMMARY [**]

         Criminal Law

         The 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 resentencing.

         The 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.

         Regarding 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 defense witnesses.

         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.

         The 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.

         Applying 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.

          OPINION

          TALLMAN, Circuit Judge

         Valentino 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.

         The 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. § 2K2.1(a)(2).

         I

         On 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, [1] in San Francisco, and that she had received a "hysterical" call from McAlpine alleging Johnson had shot himself.

         San 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.

         Arriving 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.

         McAlpine 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.

         Inside 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, Jakieth Martin.

         Outside 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.

         During 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.

         After 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.

         Three 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 ...


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