NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50058
Plaintiff-Appellee, D.C. No. 3:20-cr-02500-LAB-1 v.
PERRY EDWARD DAVIS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding
Argued and Submitted November 15, 2023 Pasadena, California
Before: PARKER,** BYBEE, and LEE, Circuit Judges.
Defendant-Appellant Perry Davis was convicted after a two-day jury trial
(during which 16 witnesses were called) of having sold $60 worth of fentanyl-
* This draft in not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. tainted cocaine to Joseph Chambers, who subsequently died of an overdose. The
district court imposed a twenty-year sentence, the mandatory minimum prescribed
by 21 U.S.C. § 841(b)(1)(C) for distribution of fentanyl resulting in death.
The dispositive issues on appeal involve two evidentiary rulings made at
trial. First, Davis contends that the district court improperly admitted hearsay text
messages from Chambers to Davis as party admissions under Federal Rule of
Evidence 801(d)(2)(a) even though Chambers was not a party. Second, he
contends that the district court committed an error of law by admitting into
evidence, over Davis’s objection under Rule 403, a surveillance video showing
Chambers collapsing and dying—without having first looked at the video. Davis
argues that both errors were not harmless and were sufficiently prejudicial to
warrant a new trial. We reverse and remand for a new trial.
1. We review the district court’s construction of the hearsay rule de novo
and its decision to exclude evidence under the hearsay rule for an abuse of
discretion. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir. 2002).
The district court abused its discretion in admitting Chambers’s text
messages to Davis. The district court admitted them under Rule 801(d)(2)(a) as
non-hearsay party-opponent statements, but that rule applies only to parties.
Chambers was not a party; he was the victim.
2 The Government does not defend the district court’s reasoning in admitting
the text messages. Instead, it asks us to affirm on two alternative theories not
articulated below. The first is that Chambers’s texts were admissible under Rule
804(b)(3) as statements against his penal interests. To qualify for this exception,
“the declarant’s statements must, in a real and tangible way, subject him to
criminal liability.” United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir. 1978)
(emphasis added). The second is that the texts were non-hearsay because they
could have been offered not for their truth but rather to provide “context” for
Davis’s texts.
As to the first, only two of the twenty-seven messages between Chambers
and Davis that the district court admitted even arguably related to illegal activity,
and neither did so “in a real and tangible way.” Both are from December 4, 2019.
In the first, Chambers asks “Hey what’s up with that G spot,” an apparent
reference to a gram of cocaine. Later that day Chambers asked, “Did u get a
price?” which in context could be considered drug related. The remainder of
Chambers’s text messages were not admissible under Rule 804(b)(3), as they were
purely logistical such as “Leaving now…20 min away” and “On my way to
channel 2.”
3 The Government’s alternative ground for admitting the text messages is that
they were offered “only for context, not for ‘the truth of the matter asserted.’”
United States v. Barragan, 871 F.3d 689, 705 (9th Cir. 2017) (citing United States
v. Valerio, 441 F.3d 837, 844 (9th Cir. 2006)). This argument founders for three
reasons. First, the Federal Rules of Evidence provide no free-floating “context”
exception to its hearsay rules. Second, if the texts were offered for “context,” then
the district court failed to give a limiting instruction to advise the jury that the texts
were not offered for the truth of what they contained. See Barragan, 871 F.3d at
705; Valerio, 441 F.3d at 844. Third, and most importantly, the Government in
fact offered the text messages as substantive evidence linking Davis to the drugs
sold to Chambers and to the parking lot where Chambers died. The Government
drove this point home in its closing argument where it contended that the text
messages showed “there’s not simply two friends partying together, sharing
cocaine together. This is a dealer and a customer. He’s negotiating with him.”
The prosecution further instructed the jury to “study these communications”
between Chambers and Davis and described them in detail. The text messages
from Chambers were, as the Government argued to the jury, central to its case,
undermining its claim that any error in admitting the messages was harmless. See
Est. of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 465 (9th Cir. 2014) (observing
4 that prejudice is “at its apex when the district court erroneously admits evidence
that is critical to the proponent’s case”), overruled on other grounds by United
States v. Bacon, 979 F.3d 766 (9th Cir. 2020).
Thus, we conclude it was error to admit the text messages and that the error
was not harmless. For these reasons, we remand for retrial. We offer no views on
the text messages’ admissibility under any other rule or exception.
2. We review a district court’s evidentiary rulings during trial for abuse of
discretion. United States v. Hankey, 203 F.3d 1160, 1166 (9th Cir. 2000).
The video at issue, taken by a surveillance camera in a parking lot, lasts
about a minute and shows Chambers weaving, stumbling, collapsing to the ground,
and dying a short while later. Davis argued below that the video had little or no
probative value because no meaningful dispute existed about the fact that
Chambers died, where he died, or that he died of a drug overdose after using
tainted drugs. He contended that a video of a death in real time is unsettling,
emotional and inherently inflammatory. The Government argued that it was
obligated to prove that the drug that killed Chambers was fentanyl, as opposed to
some other controlled substance, which Davis contested, and that the video would
assist the jury in determining whether fentanyl—as opposed to cocaine,
cocaethylene, or some other drug—caused Chambers’s death.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50058
Plaintiff-Appellee, D.C. No. 3:20-cr-02500-LAB-1 v.
PERRY EDWARD DAVIS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding
Argued and Submitted November 15, 2023 Pasadena, California
Before: PARKER,** BYBEE, and LEE, Circuit Judges.
Defendant-Appellant Perry Davis was convicted after a two-day jury trial
(during which 16 witnesses were called) of having sold $60 worth of fentanyl-
* This draft in not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. tainted cocaine to Joseph Chambers, who subsequently died of an overdose. The
district court imposed a twenty-year sentence, the mandatory minimum prescribed
by 21 U.S.C. § 841(b)(1)(C) for distribution of fentanyl resulting in death.
The dispositive issues on appeal involve two evidentiary rulings made at
trial. First, Davis contends that the district court improperly admitted hearsay text
messages from Chambers to Davis as party admissions under Federal Rule of
Evidence 801(d)(2)(a) even though Chambers was not a party. Second, he
contends that the district court committed an error of law by admitting into
evidence, over Davis’s objection under Rule 403, a surveillance video showing
Chambers collapsing and dying—without having first looked at the video. Davis
argues that both errors were not harmless and were sufficiently prejudicial to
warrant a new trial. We reverse and remand for a new trial.
1. We review the district court’s construction of the hearsay rule de novo
and its decision to exclude evidence under the hearsay rule for an abuse of
discretion. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir. 2002).
The district court abused its discretion in admitting Chambers’s text
messages to Davis. The district court admitted them under Rule 801(d)(2)(a) as
non-hearsay party-opponent statements, but that rule applies only to parties.
Chambers was not a party; he was the victim.
2 The Government does not defend the district court’s reasoning in admitting
the text messages. Instead, it asks us to affirm on two alternative theories not
articulated below. The first is that Chambers’s texts were admissible under Rule
804(b)(3) as statements against his penal interests. To qualify for this exception,
“the declarant’s statements must, in a real and tangible way, subject him to
criminal liability.” United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir. 1978)
(emphasis added). The second is that the texts were non-hearsay because they
could have been offered not for their truth but rather to provide “context” for
Davis’s texts.
As to the first, only two of the twenty-seven messages between Chambers
and Davis that the district court admitted even arguably related to illegal activity,
and neither did so “in a real and tangible way.” Both are from December 4, 2019.
In the first, Chambers asks “Hey what’s up with that G spot,” an apparent
reference to a gram of cocaine. Later that day Chambers asked, “Did u get a
price?” which in context could be considered drug related. The remainder of
Chambers’s text messages were not admissible under Rule 804(b)(3), as they were
purely logistical such as “Leaving now…20 min away” and “On my way to
channel 2.”
3 The Government’s alternative ground for admitting the text messages is that
they were offered “only for context, not for ‘the truth of the matter asserted.’”
United States v. Barragan, 871 F.3d 689, 705 (9th Cir. 2017) (citing United States
v. Valerio, 441 F.3d 837, 844 (9th Cir. 2006)). This argument founders for three
reasons. First, the Federal Rules of Evidence provide no free-floating “context”
exception to its hearsay rules. Second, if the texts were offered for “context,” then
the district court failed to give a limiting instruction to advise the jury that the texts
were not offered for the truth of what they contained. See Barragan, 871 F.3d at
705; Valerio, 441 F.3d at 844. Third, and most importantly, the Government in
fact offered the text messages as substantive evidence linking Davis to the drugs
sold to Chambers and to the parking lot where Chambers died. The Government
drove this point home in its closing argument where it contended that the text
messages showed “there’s not simply two friends partying together, sharing
cocaine together. This is a dealer and a customer. He’s negotiating with him.”
The prosecution further instructed the jury to “study these communications”
between Chambers and Davis and described them in detail. The text messages
from Chambers were, as the Government argued to the jury, central to its case,
undermining its claim that any error in admitting the messages was harmless. See
Est. of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 465 (9th Cir. 2014) (observing
4 that prejudice is “at its apex when the district court erroneously admits evidence
that is critical to the proponent’s case”), overruled on other grounds by United
States v. Bacon, 979 F.3d 766 (9th Cir. 2020).
Thus, we conclude it was error to admit the text messages and that the error
was not harmless. For these reasons, we remand for retrial. We offer no views on
the text messages’ admissibility under any other rule or exception.
2. We review a district court’s evidentiary rulings during trial for abuse of
discretion. United States v. Hankey, 203 F.3d 1160, 1166 (9th Cir. 2000).
The video at issue, taken by a surveillance camera in a parking lot, lasts
about a minute and shows Chambers weaving, stumbling, collapsing to the ground,
and dying a short while later. Davis argued below that the video had little or no
probative value because no meaningful dispute existed about the fact that
Chambers died, where he died, or that he died of a drug overdose after using
tainted drugs. He contended that a video of a death in real time is unsettling,
emotional and inherently inflammatory. The Government argued that it was
obligated to prove that the drug that killed Chambers was fentanyl, as opposed to
some other controlled substance, which Davis contested, and that the video would
assist the jury in determining whether fentanyl—as opposed to cocaine,
cocaethylene, or some other drug—caused Chambers’s death.
5 The record before us indicates that the district court did not watch any of the
footage before it overruled Davis’s Rule 403 objection, admitted the video into
evidence, and allowed the jury to watch it. This Court has made clear that a
district judge “cannot evaluate in a Rule 403 context what one has not seen nor
read.” United States v. Curtin, 489 F.3d 935, 958 (9th Cir. 2007) (en banc). And
we have held “as a matter of law” that a district court “does not properly exercise
its balancing discretion under Rule 403 when it fails to place on the scales and
personally example and evaluate all that it must weigh.” Id. at 958 (emphasis
added).
For these reasons, it was error for the district court not to review the video
before admitting it. Because we are reversing and remanding for a new trial due to
the erroneously admitted text messages, we need not address the Government’s
argument that the Curtin error was harmless. Having now seen the video, the
district court can make a proper 403 ruling at the new trial.
3. Finally, Davis contends that the district court erred in refusing to instruct
the jury that § 841(b)(1)(c), under which he was convicted, required proof that he
knew that the substance he distributed was fentanyl as opposed to any controlled
substance. We review the district court’s formulation of jury instructions for an
abuse of discretion, and we review de novo whether the instructions misstated or
6 omitted an element of the charged offense. United States v. Hofus, 598 F.3d 1171,
1174 (9th Cir. 2010) (citations omitted). Davis’s argument is foreclosed by our
opinion in United States v. Collazo, 984 F.3d 1308, 1328–29 (9th Cir. 2021) (en
banc), where we interpreted § 841(b)(1)(A)-(B) as requiring the Government to
prove that the defendant knowingly distributed a controlled substance, not that the
defendant knew the precise type and quantity of the substance resulting in death.
For these reasons, we VACATE the judgment below and REMAND for a
new trial.