United States v. Heard

• Decision Date: 11 July 2022
• Docket Number: 18-10218,18-10228,18-10239,18-10248,18-10258
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES HEARD, AKA Cheese, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES HEARD, AKA Cheese, Defendant-Appellant.

Nos. 18-10218, 18-10228, 18-10239, 18-10248, 18-10258

United States Court of Appeals, Ninth Circuit

July 11, 2022

NOT FOR PUBLICATION

Argued and Submitted October 19, 2021 Submission Vacated October 27 2021 Resubmitted July 11, 2022 San Francisco, California

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding D.C. Nos. 3:13-cr-00764-WHO-7 3:13-cr-00764-WHO-11, 3:13-cr-00764-WHO-8 3:13-cr-00764-WHO-10, 3:13-cr-00764-WHO-5

Before: BADE and BUMATAY, Circuit Judges, and BERMAN, ^[**] District Judge.

MEMORANDUM ^[*]

In these consolidated appeals, Defendants-Appellants Charles Heard, Jaquian Young, Esau Ferdinand, Monzell Harding, Jr., and Adrian Gordon challenge their convictions and sentences for various crimes arising from their participation in the Central Divisadero Playas ("CDP"), a street gang operating in San Francisco's Fillmore District. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm, in part, and vacate and remand, in part.^[1]

1. Motions to Sever Trial and for New Trial.

Ferdinand and Young appeal the district court's denial of their motions to sever, and their motions for new trial. See Fed. R. Crim. P. 14. "Criminal defendants bear a heavy burden when attempting to obtain reversal of a district court's denial of a motion to sever." United States v. Johnson, 297 F.3d 845, 855 (9th Cir. 2002). We reverse "only when the joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion [on the motion to sever] in just one way, by ordering a separate trial." Id. (alteration in original) (internal quotation marks omitted).

The district court recognized the correct legal standard, and its application of that standard was not illogical, implausible, or lacking support in the record. United States v. Espinoza, 880 F.3d 506, 511 (9th Cir. 2018). Trying Ferdinand and Young together was not "so manifestly prejudicial" as to mandate separate trials. Their defenses were not mutually exclusive, considering evidence of possible third-party involvement. See United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991) (explaining that mutually exclusive defenses occur when two defendants claim innocence but blame each other and the "acquittal of one codefendant would necessarily call for the conviction of the other").

Ferdinand complains that he was prejudiced by the testimony Young's counsel elicited on cross-examination of the government's witnesses, but these isolated instances did not give rise to "compelling prejudice necessary to mandate a severance." United States v. Sherlock, 962 F.2d 1349, 1363 (9th Cir. 1992). Nor did the testimony of a government informant who did not refer to Ferdinand. See Zafiro v. United States, 506 U.S. 534, 539 (1993) (indicating that Bruton error could give rise to risk of prejudice sufficient to warrant separate trials); Mason v. Yarborough, 447 F.3d 693, 695 (9th Cir. 2006) ("Richardson . . . specifically exempts [from Bruton] a statement, not incriminating on its face, that implicates the defendant only in connection to other admitted evidence.").

Young and Ferdinand also challenge the district court's treatment of Tierra Lewis's testimony and the admission of Exhibit 779, on which Lewis had circled an image of Ferdinand in a photographic lineup and wrote that Ferdinand, "E. Sauce," shot Jelvon Helton, "Poo Bear." Under the circumstances of this case, the district court's rulings regarding Lewis's testimony and the photo lineup were a reasonable exercise of its discretion and a reasonable application of Rules 403 and 801(d)(1) of the Federal Rules of Evidence. See United States v. Flores-Blanco, 623 F.3d 912, 919 and n.3 (9th Cir. 2010) (Rule 403); United States v. Collicott, 92 F.3d 973, 978 (9th Cir. 1996) (as amended) (hearsay exceptions). Those rulings did not violate Young's constitutional right to present a defense, Crane v. Kentucky, 476 U.S. 683, 690 (1986), or to argue that defense to the jury, Herring v. New York, 422 U.S. 853, 859 (1975). Young was able to present the substance of his defense through witness testimony, cross-examination, and during closing argument.

Further, the court minimized the prejudicial effect of Lewis's testimony and the photographic evidence against Ferdinand by giving limiting instructions that Ferdinand has not shown to be deficient. See United States v. Fernandez, 388 F.3d 1199, 1241 (9th Cir. 2004) (limiting instructions important factor for determining prejudice related to severance), as modified, 425 F.3d 1248 (9th Cir. 2005); Johnson, 297 F.3d at 856. Additionally, while Young did argue that Lewis had identified someone besides him as Jelvon Helton's shooter, Young also highlighted other weaknesses in the government's evidence related to that incident.

We conclude that it was not an abuse of discretion to deny the motions for severance or the related new trial motions.

2. Motions to Suppress.

The district court did not err in denying Young's motion to suppress evidence found during a warrantless search of his car. The district court correctly concluded that the search fell within the automobile exception to the Fourth Amendment. See United States v. Faagai, 869 F.3d 1145, 1150 (9th Cir. 2017) (discussing warrantless searches of automobiles). The police officers had probable cause to believe that the car contained contraband or evidence of a crime, at least as to the car's passenger, when he had marijuana on his person immediately after exiting the car, and he tried to discard the car keys. See United States v. King, 985 F.3d 702, 707 (9th Cir. 2021) (discussing probable cause).

The district court did not err in denying the motion to suppress recordings of informant Marshall's June 18, 2014 conversations with Young. Marshall surreptitiously recorded conversations during which Young discussed pimping conduct for which he had already been charged and other topics pertaining to uncharged conduct. The district court found that the government violated the Sixth Amendment and suppressed Young's statements about the charged pimping conduct. See Massiah v. United States, 377 U.S. 201, 206 (1964) (holding that after a defendant's right to counsel has attached, the government violates the Sixth Amendment when it uses against the defendant his own incriminating statements that the government deliberately elicited in the absence of his counsel, either directly or through an informant).

The district court did not suppress Young's statements about uncharged conduct. Its ruling did not violate the Sixth Amendment, which is "offense specific" and "does not attach until a prosecution is commenced." McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); see United States v. Hayes, 231 F.3d 663, 676 (9th Cir. 2000) (en banc) (holding that the admission at trial of "surreptitiously" recorded statements did not violate the Sixth Amendment when formal charges had not been initiated). Additionally, for evidence to be suppressed as the fruit of a Massiah violation, it "must at a minimum have been the 'but for' cause of the discovery of the evidence." United States v Kimball, 884 F.2d 1274, 1279 (9th Cir. 1989) (as amended). Young failed to show the required causal link.

3. Other Evidentiary Rulings.

The district court did not abuse its discretion by admitting evidence of the so-called silver van robberies. "In conspiracy prosecutions, the government has considerable leeway in offering evidence of other offenses" not charged in the indictment. United States v. Bonanno, 467 F.2d 14, 17 (9th Cir. 1972) (evidence of prior illegal acts "admissible to show some material facts relating to the conspiracy charged"). This evidence was relevant to prove the existence of the CDP enterprise and to connect Harding to both the enterprise and to concerted criminal conduct with co-defendant and CDP affiliate Gordon. See United States v. Rizk, 660 F.3d 1125, 1131-32 (9th Cir. 2011) ("[U]ncharged acts may be admissible as direct evidence of the conspiracy itself." (quoting United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994))).

The district court permissibly excluded Dr. Pezdek's expert testimony regarding eyewitness identifications. The expert disclosure was untimely, and, under Rule 403, the court had the discretion to balance the probative value of the proffered testimony against prejudice to the government and the risk of juror confusion. See United States v. Rincon, 28 F.3d 921, 925-26, 925 n.6 (9th Cir. 1994) (affirming exclusion of expert testimony under Rule 403). While the expert's testimony may have been "informative," the court provided a comprehensive jury instruction discussing many of the same factors regarding eyewitness testimony "to guide the jury's deliberations." Id. at 925.

The district court did not abuse its discretion by denying a motion under 28 U.S.C. § 2241(a) for a writ of habeas corpus ad testificandum for Timon O'Connor, who was proffered to impeach the government's cooperating witness-Brown. The court considered the factors relevant to issuing such a writ. See Wiggins v. Alameda County 717 F.2d 466, 468 n.1 (9th Cir. 1983) (per curiam). Heard failed to provide reliable information as to several of those factors, and the proffered testimony would not have "substantially further[ed] the resolution of the case," id. (internal quotation marks omitted), because it was cumulative. The district court's ruling did not infringe Heard's right to present a defense. See Taylor v. Illinois, 484 U.S. 400, 410 (1988) (right to offer witness testimony is not "unfettered"). Heard and the other appellants were able to...