United States v. Gross

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 2025
• Docket: 24-3079
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-3079 D.C. No. Plaintiff - Appellee, 1:21-cr-00107-JAO-1 v. MEMORANDUM*

JEFFREY L. GROSS, AKA Loran Gross,

Defendant - Appellant.

Appeal from the United States District Court for the District of Hawaii Jill Otake, District Judge, Presiding

Submitted October 8, 2025** Honolulu, Hawaii

Before: McKEOWN, FRIEDLAND, and SUNG, Circuit Judges.

Defendant Jeffrey Loran Gross appeals his convictions for manufacture and

possession with intent to distribute 100 or more marijuana plants, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B); two counts of felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1); and possession of a firearm in furtherance of

* 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). a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). On appeal, he

challenges the constitutionality of 18 U.S.C. § 922(g)(1) as applied to him, the

district court’s denial of his motions to suppress and for a Franks hearing, and the

sufficiency of the evidence sustaining his convictions for felon in possession of a

firearm and possession of a firearm in furtherance of a drug trafficking crime. We

have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. Gross’s argument that 18 U.S.C. § 922(g)(1) violates the Second

Amendment as applied to him is precluded by United States v. Duarte, 137 F.4th

743 (9th Cir. 2025) (en banc), which held that § 922(g)(1) is constitutional as

applied to all felons.

2. We review the district court’s denial of Gross’s motion to suppress de

novo and the underlying factual findings for clear error. United States v. Arreguin,

735 F.3d 1168, 1174 (9th Cir. 2013). We hold that the search warrant was

supported by probable cause. The district court did not clearly err when it found,

based on an officer’s credible testimony, that a confidential informant conducted a

controlled purchase of marijuana from Gross on his property. And, because the

controlled purchase occurred on Gross’s property within five days of the

application for a search warrant, there was a “fair probability” that evidence of a

crime would be found there. United States v. Perkins, 850 F.3d 1109, 1119 (9th

Cir. 2017) (quoting United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006).

2 24-3079 Probable cause requires nothing more. Finally, even assuming the informant

conducted unauthorized “confirmatory searches” of the property, the district court

did not clearly err in finding that nothing the informant saw during these incursions

motivated the officer to apply for the search warrant, or in finding that no

information gained from the searches was included in the affidavit.

3. We review de novo the district court’s denial of Gross’s motion for an

evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978). United States

v. Norris, 942 F.3d 902, 907 (9th Cir. 2019). “To obtain a Franks hearing, a

defendant must make a substantial preliminary showing that: (1) the affiant officer

intentionally or recklessly made false or misleading statements or omissions in

support of the warrant, and (2) the false or misleading statement or omission was

material, i.e., necessary to finding probable cause.” Id. at 909-10 (internal

quotation marks and citation omitted).

Here, the district court determined that Gross made a substantial preliminary

showing that the search warrant affidavit contained a reckless or intentional

misstatement and three reckless omissions, but it concluded that the misstatement

and omissions were not material. We agree. Materiality is lacking if “probable

cause remains once any misrepresentations are corrected and any omissions are

supplemented.” Id. at 910. Here, the affidavit established the informant’s

reliability and the omitted information, if included, would not have extinguished

3 24-3079 that reliability. And, even after correcting the misstatement, the affidavit credibly

established that the controlled purchase occurred.

4. The evidence was sufficient to sustain Gross’s convictions of two

counts of felon in possession of a firearm and one count of possession of a firearm

in furtherance of a drug trafficking crime. Because Gross did not raise a

sufficiency-of-the-evidence challenge before the district court, we review for plain

error. United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019). On appeal,

Gross solely attempts to relitigate factual disputes already resolved by the jury at

trial. These purported errors cannot warrant reversal because “an error that hinges

on a factual dispute is not ‘obvious’ as required by the ‘plain error’ standard.”

United States v. Yijun Zhou, 838 F.3d 1007, 1011 (9th Cir. 2016) (citing United

States v. Scrivner, 114 F.3d 964, 968 (9th Cir. 1997)).

AFFIRMED.1

1 Gross’s request for judicial notice, Dkt. #47, is denied.

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