United States v. Alvin Davis

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 13, 2021
• Docket: 20-10108
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10108

Plaintiff-Appellee, D.C. Nos. 1:19-cr-00002-LEK-1 v. 1:19-cr-00002-LEK

ALVIN B. DAVIS, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Submitted July 8, 2021** Honolulu, Hawaii

Before: NGUYEN, OWENS, and FRIEDLAND, Circuit Judges.

Alvin Davis was convicted of conspiracy to distribute and possess with

intent to distribute 500 grams or more of methamphetamine under 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A), and 846. On appeal, he challenges the district court’s

denial of three pretrial motions. We have jurisdiction under 28 U.S.C. § 1291, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). we affirm.

1. First, Davis appeals the district court’s denial of his motion to

suppress the statements he made to Drug Enforcement Administration (“DEA”)

agents. “We review the district court’s denial of [a] motion to suppress de novo

and the underlying factual findings for clear error.” United States v. Zapien, 861

F.3d 971, 974 (9th Cir. 2017) (per curiam) (alteration in original) (quoting United

States v. Rodriguez-Preciado, 399 F.3d 1118, 1125 (9th Cir. 2015)).

The district court did not err in finding that Davis’s statements were

voluntary. Davis called the agents and agreed to speak with them at a federal

building. The agents did not threaten Davis or make promises to him.1 Davis was

not physically restrained, and, though Davis testified that he was high during the

interview, no record evidence indicates his drug use made him particularly

vulnerable to coercion. While certain aspects of the interview may have been

uncomfortable to Davis—namely, that the interview took place in a locked room,

the agents looked “hostile,” and the agents began the conversation by explaining

that Davis was implicated in methamphetamine dealing—the circumstances were

not sufficiently coercive for us to find that Davis’s “will was overborne and his

statement[s] involuntary.” United States v. Preston, 751 F.3d 1008, 1028 (9th Cir.

1 We discern no clear error in the district court’s determination that the agents did not threaten Davis or make him promises.

2 2014) (en banc).

Davis also argues that his Miranda waiver was not knowing, intelligent, or

voluntary.2 We review the district court’s determination that a Miranda waiver

was knowing and intelligent for clear error. United States v. Bautista-Avila, 6 F.3d

1360, 1364 (9th Cir. 1993). Davis’s prior experience with law enforcement

questioning suggests that he understood his rights, see United States v. Heredia-

Fernandez, 756 F.2d 1412, 1416 (9th Cir. 1985), and there is no evidence that

Davis was so impaired by his drug use that his waiver was not knowing or

intelligent. Moreover, our conclusion that Davis’s statements were voluntary “is

tantamount to a determination that his Miranda waiver was voluntary.” Bautista-

Avila, 6 F.3d at 1365.

2. Next, Davis argues that the district court erred in failing to hold a

James hearing to determine the admissibility of an alleged co-conspirator’s

statements to DEA agents. Because the government did not attempt to introduce

the statements for their truth, no James hearing was required. Cf. Bourjaily v.

United States, 483 U.S. 171, 175 (1987) (“Before admitting a co-conspirator’s

statement . . . under Rule 801(d)(2)(E), a court must be satisfied that the statement

actually falls within the definition of the Rule.”).

2 Because the district court found that an agent read Davis his Miranda rights prior to questioning, we do not review the district court’s determination that Davis was in custody during his interview.

3 Davis also argues that the district court erred in admitting the statements,

even for the limited purpose of providing background information about the DEA’s

investigation of Davis, because the statements were “extremely prejudicial.” “The

decision to admit evidence is reviewed for an abuse of discretion,” United States v.

Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016), and we hold that the district court

was well within its discretion to admit the statements as background information.

See United States v. Whitman, 771 F.2d 1348, 1352 (9th Cir. 1985) (holding that

the danger of prejudice from admitting a recording of a co-conspirator and an

informant planning a murder did not substantially outweigh the probative value of

helping the jury understand other evidence).

3. Finally, Davis argues that the district court erred by failing to hold a

hearing on his motion in limine to exclude an agent’s testimony about the

statements Davis made to the DEA agents. District courts are not required to hold

hearings on motions in limine. And, contrary to Davis’s assertions, the failure to

hold a hearing did not infringe on his due process or confrontation rights. It is

undisputed that the testifying agent failed to preserve his original interview notes,

record Davis’s statement, or have Davis adopt the statement, so a hearing about the

agent’s failure to preserve his notes was unnecessary. Additionally, at trial,

Davis’s counsel cross-examined the agent about Davis’s statement as well as the

agent’s failure to preserve his notes, record Davis’s statement, or ask Davis to

4 adopt a written statement. An additional hearing would not have enabled Davis to

more fully cross-examine or impeach the agent. We therefore discern no error in

the district court’s decision to decide Davis’s motion on the papers.

Nor did admission of Davis’s statements violate his due process or

confrontation rights. To establish a due process violation based on the

government’s failure to preserve potentially exculpatory evidence, “the defendant

must make an initial showing that the Government acted in bad faith and that this

conduct resulted in prejudice to the defendant’s case.” United States v. Dring, 930

F.2d 687, 693 (9th Cir. 1991). Davis does not argue that the agent acted in bad

faith, and there is no evidence of prejudice. As described above, Davis’s counsel

fully cross-examined the agent about his failure to preserve his notes. The

government provided Davis with a copy of the agent’s formal report, and the agent

testified that the report “fully and accurately reflect[ed] the contents of the notes.”

Finally, the district court appropriately considered the agent’s failure to preserve

his notes in weighing the credibility of the agent. For these reasons, Davis does

not establish a due process violation. Davis also fails to establish a violation of his

confrontation rights because he “had a meaningful opportunity to cross-examine

[the witness]” and, as described above, does not show prejudice. See United States

v. Reed, 575 F.3d 900, 922 (9th Cir. 2009) (alteration in original) (quoting United

States v. Williams, 291 F.3d 1180, 1191 (9th Cir. 2002) (per curiam)).

5 Finally, Davis’s hearsay arguments are meritless. The agent’s testimony as

to Davis’s statement was not hearsay because it was an opposing party statement

under Federal Rule of Evidence 801(d)(2)(A). Even if it were hearsay, the district

court did not abuse its discretion in deeming the statement admissible under the

hearsay exception in Federal Rule of Evidence 804(b)(3) for statements against

interest because the statement “certainly embodies the confession of a crime.”

AFFIRMED.