NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 17-30068
Plaintiff-Appellee, D.C. No. 3:16-CR-00058-SLG v.
ARNOLD WESLEY FLOWERS, MEMORANDUM* Defendant-Appellant.
UNITED STATES OF AMERICA, 17-30069
Plaintiff-Appellee, D.C. No. v. 3:16-CR-00035-SLG
ARNOLD WESLEY FLOWERS,
Defendant-Appellant.
Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding
Argued and Submitted February 7, 2019 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
1 Before: IKUTA and CHRISTEN, Circuit Judges, and FREUDENTHAL,** District Judge
In consolidated appeals, Defendant-appellant Arnold Wesley Flowers
challenges his convictions in two separate criminal cases. Separate juries convicted
Flowers of one count of possession of cocaine with intent to distribute and one count
of possession of a firearm by a convicted felon (Appeal No. 17-30069), and 12
counts of wire fraud (Appeal No. 17-30068). The district court consolidated the
cases for sentencing and sentenced Flowers to 75 months imprisonment in each case,
to be served concurrently, followed by a five-year term of supervised release.
Flowers makes several claims of error related to both convictions. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Appeal No. 17-30069 – Drug and Felon in Possession Conviction
Flowers claims the district court erred in denying his motion to suppress
evidence from a search of his home. We review a district court’s denial of a motion
to suppress evidence de novo and review the district court’s factual findings for clear
error. United States v. Job, 871 F.3d 852, 859 (9th Cir. 2017). The district court did
not err in denying the motion to suppress because the affidavit supporting the search
warrant contained ample evidence to find probable cause to support the warrant. See
** The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation.
2 Illinois v. Gates, 462 U.S. 213, 238-239 (1983). Smith, a resident at Flowers’s
house, was involved in two prior controlled heroin buys and there was evidence
indicating Smith was distributing drugs out of the residence. These facts establish a
reasonable probability that evidence of a crime would be found in Flowers’s
residence. See United States v. Nance, 962 F.2d 860, 864 (9th Cir. 1992).
Flowers also claims the district court erred in admitting evidence of a drive-
by shooting at his prior residence. We review the district court’s rulings regarding
the relevancy and the prejudicial effect of evidence for abuse of discretion. United
States v. Kallin, 50 F.3d 689, 693 (9th Cir. 1995). Flowers was a victim of the
shooting, so this was not evidence of Flowers’s prior bad acts, which is generally
inadmissible under Rule 404(b) of the Federal Rules of Evidence. See United States
v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982). Thus, the issue is whether the
evidence was relevant and whether the “probative value [wa]s substantially
outweighed by a danger of . . . unfair prejudice[.]” Fed. R. Evid. 403. The district
court did not err in finding the evidence was relevant to show Flowers was engaged
in drug distribution and to explain why Flowers would possess a firearm. Flowers
had an opportunity to provide other explanations for the shooting, therefore the
evidence was not unfairly prejudicial.
Flowers also claims there was insufficient evidence to support his convictions
for drug distribution and felon in possession of a firearm. We review challenges to
3 the sufficiency of the evidence de novo. United States v. Sullivan, 522 F.3d 967, 974
(9th Cir. 2008). In reviewing the evidence in the light most favorable to the
prosecution, there was more than sufficient evidence for the jury to find Flowers
possessed cocaine for distribution. Officers found six ounces of individually
packaged cocaine in Flowers’s bathroom and approximately $28,000.00 in his
bedroom. Officers also found plastic baggies and a digital scale in the same area of
the home.
There was also sufficient evidence to support Flowers’s conviction for being
a felon in possession. Officers found guns in two safes in Flowers’s bedroom. One
of the safes contained Flowers’s passport and other documents. A witness testified
he saw Flowers open the safe containing one of the guns. Finally, surveillance
footage showed Flowers hauling the safes to and from the storage facility and
opening the safes.
Flowers challenges the district court’s imposition of the two-level firearm
enhancement under U.S.S.G. § 2D1.1(b)(1). The district court did not err in
imposing the enhancement. United States v. Boykin, 785 F.3d 1352, 1364 (9th Cir.
2015). The safes contained significant amounts of money and were in the same
general area as the cocaine and distribution materials, and two officers testified that
the safe with one of the guns smelled of cocaine.
4 Flowers also challenges the enhancement for maintaining a premises for the
purpose of distributing controlled substances under U.S.S.G. § 2D1.1(b)(12). As
previously noted, officers found guns, drugs, and packaging materials at Flowers’s
residence. “We review a district court’s . . . application of the Guidelines to the facts
for abuse of discretion.” United States v. Simon, 858 F.3d 1289, 1293 (9th Cir. 2017)
(en banc) (citation and alternation omitted). The district court did not abuse its
discretion in finding this evidence supported the enhancement.
Appeal No. 17-30068 – Wire Fraud
Flowers challenges the district court’s denial of his motion to suppress the
search of a storage locker. The district court did not err in denying the motion. Even
omitting evidence of the dog alert, the affidavit supporting the search warrant
contained adequate facts to support a finding of probable cause. Gates, 462 U.S. at
238. Surveillance showed Flowers frequently accessing the lockers for short periods.
Earlier, officers found handguns, cocaine and a significant amount of currency in
Flowers’s home. The totality of these facts, taken together, establish a reasonable
probability that evidence of a crime would be found in the storage locker. Nance,
962 F.2d at 864.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 17-30068
Plaintiff-Appellee, D.C. No. 3:16-CR-00058-SLG v.
ARNOLD WESLEY FLOWERS, MEMORANDUM* Defendant-Appellant.
UNITED STATES OF AMERICA, 17-30069
Plaintiff-Appellee, D.C. No. v. 3:16-CR-00035-SLG
ARNOLD WESLEY FLOWERS,
Defendant-Appellant.
Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding
Argued and Submitted February 7, 2019 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
1 Before: IKUTA and CHRISTEN, Circuit Judges, and FREUDENTHAL,** District Judge
In consolidated appeals, Defendant-appellant Arnold Wesley Flowers
challenges his convictions in two separate criminal cases. Separate juries convicted
Flowers of one count of possession of cocaine with intent to distribute and one count
of possession of a firearm by a convicted felon (Appeal No. 17-30069), and 12
counts of wire fraud (Appeal No. 17-30068). The district court consolidated the
cases for sentencing and sentenced Flowers to 75 months imprisonment in each case,
to be served concurrently, followed by a five-year term of supervised release.
Flowers makes several claims of error related to both convictions. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Appeal No. 17-30069 – Drug and Felon in Possession Conviction
Flowers claims the district court erred in denying his motion to suppress
evidence from a search of his home. We review a district court’s denial of a motion
to suppress evidence de novo and review the district court’s factual findings for clear
error. United States v. Job, 871 F.3d 852, 859 (9th Cir. 2017). The district court did
not err in denying the motion to suppress because the affidavit supporting the search
warrant contained ample evidence to find probable cause to support the warrant. See
** The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation.
2 Illinois v. Gates, 462 U.S. 213, 238-239 (1983). Smith, a resident at Flowers’s
house, was involved in two prior controlled heroin buys and there was evidence
indicating Smith was distributing drugs out of the residence. These facts establish a
reasonable probability that evidence of a crime would be found in Flowers’s
residence. See United States v. Nance, 962 F.2d 860, 864 (9th Cir. 1992).
Flowers also claims the district court erred in admitting evidence of a drive-
by shooting at his prior residence. We review the district court’s rulings regarding
the relevancy and the prejudicial effect of evidence for abuse of discretion. United
States v. Kallin, 50 F.3d 689, 693 (9th Cir. 1995). Flowers was a victim of the
shooting, so this was not evidence of Flowers’s prior bad acts, which is generally
inadmissible under Rule 404(b) of the Federal Rules of Evidence. See United States
v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982). Thus, the issue is whether the
evidence was relevant and whether the “probative value [wa]s substantially
outweighed by a danger of . . . unfair prejudice[.]” Fed. R. Evid. 403. The district
court did not err in finding the evidence was relevant to show Flowers was engaged
in drug distribution and to explain why Flowers would possess a firearm. Flowers
had an opportunity to provide other explanations for the shooting, therefore the
evidence was not unfairly prejudicial.
Flowers also claims there was insufficient evidence to support his convictions
for drug distribution and felon in possession of a firearm. We review challenges to
3 the sufficiency of the evidence de novo. United States v. Sullivan, 522 F.3d 967, 974
(9th Cir. 2008). In reviewing the evidence in the light most favorable to the
prosecution, there was more than sufficient evidence for the jury to find Flowers
possessed cocaine for distribution. Officers found six ounces of individually
packaged cocaine in Flowers’s bathroom and approximately $28,000.00 in his
bedroom. Officers also found plastic baggies and a digital scale in the same area of
the home.
There was also sufficient evidence to support Flowers’s conviction for being
a felon in possession. Officers found guns in two safes in Flowers’s bedroom. One
of the safes contained Flowers’s passport and other documents. A witness testified
he saw Flowers open the safe containing one of the guns. Finally, surveillance
footage showed Flowers hauling the safes to and from the storage facility and
opening the safes.
Flowers challenges the district court’s imposition of the two-level firearm
enhancement under U.S.S.G. § 2D1.1(b)(1). The district court did not err in
imposing the enhancement. United States v. Boykin, 785 F.3d 1352, 1364 (9th Cir.
2015). The safes contained significant amounts of money and were in the same
general area as the cocaine and distribution materials, and two officers testified that
the safe with one of the guns smelled of cocaine.
4 Flowers also challenges the enhancement for maintaining a premises for the
purpose of distributing controlled substances under U.S.S.G. § 2D1.1(b)(12). As
previously noted, officers found guns, drugs, and packaging materials at Flowers’s
residence. “We review a district court’s . . . application of the Guidelines to the facts
for abuse of discretion.” United States v. Simon, 858 F.3d 1289, 1293 (9th Cir. 2017)
(en banc) (citation and alternation omitted). The district court did not abuse its
discretion in finding this evidence supported the enhancement.
Appeal No. 17-30068 – Wire Fraud
Flowers challenges the district court’s denial of his motion to suppress the
search of a storage locker. The district court did not err in denying the motion. Even
omitting evidence of the dog alert, the affidavit supporting the search warrant
contained adequate facts to support a finding of probable cause. Gates, 462 U.S. at
238. Surveillance showed Flowers frequently accessing the lockers for short periods.
Earlier, officers found handguns, cocaine and a significant amount of currency in
Flowers’s home. The totality of these facts, taken together, establish a reasonable
probability that evidence of a crime would be found in the storage locker. Nance,
962 F.2d at 864.
Flowers also asserts prosecutorial misconduct, claiming the prosecutor asked
Flowers’s wife, Miranda, to comment on Flowers’s truthfulness. Flowers also
claims the prosecutor made improper remarks in closing arguments. Flowers failed
5 to object to the questions to Miranda, so we review for plain error. United States v.
Reyes, 660 F.3d 454, 462 (9th Cir. 2011). To establish plain error, a defendant must
show that "(1) there is an error; (2) the error is clear or obvious, rather than subject
to reasonable dispute; (3) the error affected the appellant's substantial rights, which
in the ordinary case means it affected the outcome of the district court proceedings;
and (4) the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” United States v. Marcus, 560 U.S. 258, 263 (2010) (internal
quotation marks omitted). Flowers failed to establish the questions to Miranda were
plain error or that they materially affected the fairness of the trial. Miranda never
testified about Flowers’s credibility. Additionally, the questions to Miranda were a
small portion of the significant evidence against Flowers in the wire fraud case.
Flowers also claims the prosecutor’s closing statement recounting testimony
from the insurance adjuster that insurance fraud causes all insured’s rates to go up
was improper. Prosecutors may not urge the jury to convict in order to alleviate
societal problems. United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir.
2005). “Where the defendant has objected to alleged prosecutorial misconduct at
trial, we review for harmless error.” United States v. Alcantara-Castillo, 788 F.3d
1186, 1190 (9th Cir. 2015). The prosecutor recounted admitted testimony one time
before continuing to another topic. Even if the prosecutor’s remarks were improper,
they did not materially affect the fairness of the trial. As previously noted, the
6 evidence against Flowers was significant, and the outcome was not affected by the
prosecutor’s single statement during closing arguments. United States v. Sanchez,
659 F.3d 1252, 1260 (9th Cir. 2011) (an “important factor contributing to the
prejudicial effect of improper statements is the strength of the case against a
defendant.”) (citations omitted).
Both Appeals
Finally, we find the district court did not err in failing to provide Flowers with
the in camera documents. These documents did not contain any information
requiring disclosure pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
AFFIRMED.