United States v. Manney

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-716 D.C. No. Plaintiff - Appellee, 3:21-cr-00019-HDM-CSD-1 v. MEMORANDUM* GAIL MANNEY,

Defendant - Appellant.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding

Argued and Submitted May 13, 2024 Phoenix, Arizona

Before: DESAI and DE ALBA, Circuit Judges, and GUTIERREZ, District Judge.**

Gail Manney appeals her conviction and sentence under 18 U.S.C. §§

922(a)(6) and 924(a)(2) on numerous grounds. We have jurisdiction pursuant to

18 U.S.C. § 3231. We address the majority of Manney’s claims in this

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Philip S. Gutierrez, United States District Judge for the Central District of California, sitting by designation. memorandum disposition and affirm her conviction.1 We also partially vacate her

sentence and remand the matter to the district court for further proceedings

consistent with United States v. Montoya, 82 F.4th 640 (9th Cir. 2023) (en banc).

1. Manney argues that the district court improperly denied her motion to

suppress statements obtained in violation of her Miranda rights. We review the

denial of a motion to suppress and whether an individual is constitutionally entitled

to a Miranda warning de novo. United States v. Patayan Soriano, 361 F.3d 494,

501 (9th Cir. 2004); United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir.

2008). “An officer’s obligation to give a suspect Miranda warnings before

interrogation extends only to those instances where the individual is in custody.”

United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002) (quoting Oregon v.

Mathiason, 429 U.S. 492, 495 (1977)) (internal quotation marks omitted).

Here, the totality of circumstances show that Manney was not in custody at

any point during her interaction with the ATF agents. See Craighead, 539 F.3d at

1082 (holding that an individual is in custody if a reasonable person in her shoes

would feel she is not at liberty to terminate an interrogation and leave). The initial

contact occurred in a public place. She was told multiple times that she could

terminate the encounter, and she was never handcuffed or physically restrained. At

1 We address Manney’s constitutional challenge to 18 U.S.C. § 922(a)(6) in a concurrently filed opinion.

2 23-716 the ATF office, the agents conducted the interrogation in a calm manner and left

the door open if Manney wanted to leave. The district court correctly denied

Manney’s motion.

2. Manney also argues that the district court improperly denied her

motion to suppress the contents of her cell phone. “An individual may waive his

Fourth Amendment rights by giving voluntary and intelligent consent to a

warrantless search of his person, property, or premises.” United States v. Torres-

Sanchez, 83 F.3d 1123, 1129 (9th Cir. 1996). A district court’s finding that an

individual voluntarily consented to a search is reviewed for clear error. Patayan

Soriano, 361 F.3d at 501. Manney repeatedly told ATF agents that they could

search her phone. She also signed a written form consenting to the search of her

phone. Under the totality of circumstances, the district court did not clearly err

when it denied her motion to suppress on this ground. See United States v.

Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000).

3. Manney challenges the district court’s denial of her Batson motion

based on the prosecution’s strike of one woman juror. “The Constitution forbids

striking even a single prospective juror for a discriminatory purpose.” Flowers v.

Mississippi, 588 U.S. 284, 303 (2019). “The issue comes down to whether the trial

court finds the prosecutor’s race-neutral explanations to be credible.” Miller-El v.

Cockrell, 537 U.S. 322, 324 (2003).

3 23-716 Here, the record supports the government’s reasons for the strike and there

is no evidence that the prosecutors lacked credibility. The government also did not

misrepresent the record or disproportionately question women jurors. See Flowers,

588 U.S. at 302. Ultimately, Manney failed to carry her burden to show that the

juror was struck for a discriminatory purpose. See United States v. Hernandez-

Garcia, 44 F.4th 1157, 1167 (9th Cir. 2022).

4. Manney claims that the district court erred by admitting evidence

showing that her boyfriend and her son were prohibited from possessing firearms.

Unpreserved evidentiary challenges are reviewed for plain error. See United States

v. Perez, 962 F.3d 420, 447 (9th Cir. 2020). “Plain error is (1) error, (2) that is

plain, and (3) that affects substantial rights.” United States v. Ameline, 409 F.3d

1073, 1078 (9th Cir. 2005) (en banc) (citation and internal quotation marks

omitted).

Manney admits that she did not contemporaneously object to the admission

of her son’s (Razaaq) and her boyfriend’s (Brown) prohibited status. The

government’s theory below was that Manney was acting as a straw purchaser for

her son. The evidence of Razaaq’s prohibited status was thus relevant to Manney’s

motive for the purchasing the firearms on his behalf and her false statements. See

Fed R. Evid. 401. And while further testimony stating that Razaaq was a “multi-

convicted felon” with “several outstanding warrants” was likely erroneously

4 23-716 admitted, see Fed. R. Evid. 403, its inclusion was harmless because of the strength

of other evidence against her. See United States v. Liera, 585 F.3d 1237, 1244 (9th

Cir. 2009). Similarly, Manney also fails to show that the inclusion of Brown’s

prohibited status affected her substantial rights. While Brown’s status was

discussed by the government, the government did not fixate on this piece of

evidence at any point during the trial. Instead, the government repeatedly

highlighted its strongest evidence: the messages between Manney and Razaaq

discussing the purchase of firearms.

5. Manney maintains that there is insufficient evidence to support her

conviction. The sufficiency of the evidence to support a conviction is reviewed de

novo. United States v. Ruiz, 462 F.3d 1082, 1087–88 (9th Cir. 2006). Reviewing

the evidence in the light most favorable to the prosecution, “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc)

(internal quotation omitted). The messages between Manney and her son strongly

suggested that Manney was purchasing the guns on her son’s behalf. In the

messages, they discuss the types of firearms to purchase; her son also mentions

providing money to Manney for the purchase. Based on this evidence and other

evidence adduced at trial, a rational trier of fact could find that Manney’s statement

claiming to be the true purchaser of the firearms violated § 922(a)(6) beyond a

5 23-716 reasonable doubt.

6. Manney contends that the district court erred by denying her motion

for a new trial based on juror misconduct. “A defendant is entitled to a new trial

when the jury obtains or uses evidence that has not been introduced during trial if

there is a reasonable possibility that the extrinsic material could have affected the

verdict.” Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988) (internal quotation

omitted). However, “[n]ot every incident of juror misconduct or bias requires a

new trial.” Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986) (quoting

United States v. Hendrix, 549 F.2d 1225, 1229 (9th Cir. 1977)). Here, given the

evidence in this case, the nature and brief discussion of the extrinsic material, the

limited relevance of the extrinsic material, and the short time it took the jury to

deliberate, the introduction of the material was harmless beyond a reasonable

doubt. Id. (listing the factors relevant to assessing a motion for new trial based on

the introduction of extrinsic evidence).

7. Manney additionally argues that the district court erred by imposing a

sentence on a clearly erroneous factual finding, imposing a substantively

unreasonable sentence, and failing to orally pronounce or incorporate by reference

thirteen discretionary standard conditions for supervised release.

The district court did not abuse its discretion when it imposed an 18-month

sentence. See United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010) (holding

6 23-716 that the district court abuses its discretion when its sentence is based on clearly

erroneous fact); United States v. Laurenti, 731 F.3d 967, 976 (9th Cir. 2013)

(holding that a sentence is substantively unreasonable when the decision not to

impose a lesser sentence was, “illogical, implausible, or without support in

inferences that may be drawn from the facts of the record” (internal quotation

omitted)). It granted Manney a downward variance although it was not obligated

to. The district court also stated its basis for the sentence while referencing 18

U.S.C. § 3553. Overall, the district court’s sentence was well-reasoned and based

on the evidence provided by both parties, as well as the evidence adduced at trial.

However, the district court erred by failing to orally pronounce the standard

conditions of supervised release it intended to impose or provide Manney with a

document containing these conditions prior to sentencing. See Montoya, 82 F.4th

at 651. We vacate the imposition of the standard conditions of supervised release

and remand this matter to the district court so it can impose these conditions, if it

so chooses, in a manner consistent with Montoya. Id. at 656 (requiring remand

when district court fails to orally pronounce discretionary conditions of supervised

release or incorporate them by reference during its pronouncement of judgment).

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

7 23-716