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denying motion for new trial where jury improperly viewed demonstrative charts not admitted into evidence and had access to, but did not view, defendants' state criminal records; the court admonished the jury to disregard the charts
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Case No.: SACR 16-00029-CJC
07-25-2018
UNITED STATES of America, Plaintiff, v. Keith Marvel WALTON, Defendant.
Jeffrey M. Chemerinsky, Julia L. Reese, AUSA - Office of the US Attorney Violent and Organized Crimes Section, Los Angeles, CA, Scott D. Tenley, AUSA - Office of US Attorney Santa Ana Branch Office, Santa Ana, CA, for Plaintiff.
Jeffrey M. Chemerinsky, Julia L. Reese, AUSA - Office of the US Attorney Violent and Organized Crimes Section, Los Angeles, CA, Scott D. Tenley, AUSA - Office of US Attorney Santa Ana Branch Office, Santa Ana, CA, for Plaintiff.
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO DISMISS INDICTMENT OR, ALTERNATIVELY, FOR NEW TRIAL
CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On September 22, 2017, after a four-week trial, the jury found Defendant Keith Marvel Walton guilty of the following charges: (1) aiding and abetting or conspiring with others to commit Hobbs Act robbery at Westime in West Hollywood, California ("the Westime robbery"); (2) aiding and abetting or conspiring with others to commit Hobbs Act robbery at Ben Bridge Jeweler in Torrance, California ("the Del Amo robbery"); (3) aiding and abetting or conspiring with others, who knowingly brandished a firearm during and in relation to the Del Amo robbery; (4) aiding and abetting or conspiring with others to commit Hobbs Act robbery at Ben Bridge Jeweler in Santa Monica, California ("the Santa Monica robbery"); and (5) conspiracy to commit Hobbs Act robbery.
On December 11, 2017, Walton filed a motion to dismiss the indictment or, alternatively, for a new trial. (Dkt. 1123.) Walton's co-defendants Jameson LaForest and Evan Scott also moved to dismiss the indictment or, alternatively, for a new trial, on the same grounds–asserting prosecutorial misconduct in the handling of certain unadmitted documents that reached the jury during deliberations and that Defendants contend affected the jury's verdicts. (See Dkts. 1107, 1108.) On February 22, 2018, after an evidentiary hearing, the Court denied all motions to dismiss the indictment or, alternatively, for a new trial. (Dkts. 1199 ["February 22 Order"], 1200.) The Court specifically held that the inclusion of unadmitted documents in the jury's exhibit binders "was the result of the parties' joint error," and was "not the result of flagrant prosecutorial misconduct." (February 22 Order at 10–13.) The Court also held that there was no reasonable possibility that the unadmitted criminal court documents and demonstrative charts in Volume 7 could have affected the jury's verdicts. (Id. at 13–19.)
On April 24, 2018, Walton's co-defendant, Robert Johnson, filed a motion for reconsideration of the Court's February 22 Order. (Dkt. 1255.) In that motion, Johnson asserted that Exhibit 157, which consisted of fifteen photographs that were not admitted into evidence, reached the jury during deliberations and had a prejudicial effect on the jury's verdicts. On May 16, 2018, the Court denied Johnson's motion, finding that there was no reasonable possibility that the photographs could have affected the jury's verdicts. (Dkt. 1266.)
On April 11, 2018, at Johnson's request, the Court held a status conference with Johnson and his counsel in camera. (Dkt. 1247.) In light of the matters discussed, the Court granted Johnson until April 23, 2018, to file a motion for reconsideration of the Court's February 22 Order denying the motions for new trial and to dismiss the indictment.
On March 12, 2018, Walton requested an ex parte communication with the Court. (Dkt. 1225.) On March 19, 2018, the Court held a status conference with Walton and his counsel in camera, after which the Court appointed Walton advisory counsel. (Dkts. 1231, 1232.) On June 28, 2018, Walton's advisory counsel filed a motion for reconsideration of the Court's February 22 Order. (Dkt. 1310 [hereinafter, "Mot."].) Walton now moves to dismiss the indictment, or alternatively, for a new trial, asserting that the demonstrative charts, Exhibit 157, and the criminal court documents affected the jury's verdicts. Walton also asserts that the Government should not have been allowed to present historical cell-site evidence that it acquired without probable cause in light of the Supreme Court's recent ruling in Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). The Government argues that there is no reasonable possibility that the unadmitted documents could have affected the jury's verdicts in light of the jury's limited exposure thereto, the Court's curative instructions, the cumulative nature or inconsequential prejudice of the documents, the strength of the Government's evidence, and the inferences that can be drawn from the jury's verdicts. The Government also argues that Carpenter does not alter the fact it obtained Walton's historical cell-site data pursuant to a court order under the Stored Communications Act, and the good faith exception to the exclusionary rule applies.
The Government argues that Walton is not entitled to reconsideration of the Court's order denying his prior motion to dismiss the indictment or, alternatively, for a new trial, because he cannot satisfy the requirements for reconsideration. (Dkt. 1330 [Government's Opposition, hereinafter "Opp."] at 1–3.) The Court invited Walton to file his present motion, and thus will consider the merits of his argument.
The Court agrees with the Government. Walton has presented no reason for the Court to reconsider and change its prior rulings. Accordingly, Walton's motion for reconsideration is DENIED. II. BACKGROUND
Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing. Accordingly, the hearing set for July 30, 2018, at 9:00 a.m. is hereby vacated and off calendar.
The operative Third Superseding Indictment charged Walton, as well as Johnson, LaForest, Scott, Justin Henning, and Jeremy Tillett, with conspiracy to commit Hobbs Act robbery (Count One), various counts of Hobbs Act robbery (Counts Two, Four, Six, Eight, Nine, Eleven, Thirteen, and Fourteen), and counts under 18 U.S.C. § 924(c) with brandishing enhancements (Counts Three, Five, Seven, Ten, and Twelve). (Dkt. 537.) The charges arose from a series of armed and unarmed "smash and grab" robberies that occurred at jewelry stores across Southern California.
On September 13, 2017, after the jurors were dismissed for the day, the Courtroom Deputy Clerk instructed the parties to confirm the final exhibit list and to prepare a set of exhibit binders for the jury. (Dkt. 1057 [Transcript 9/15/17] at 14.) The exhibit binders were reviewed and prepared for the jury by Defendant Henning's counsel Mr. Tedford, ATF Special Agent Ryan Stearman, the case agent, Walton's counsel Mr. Nishi, and his paralegal Jennifer Wang, and AUSA Jeffrey Chemerinsky. (Id. at 15; Dkt. 1143-1 Ex. D ["9/13 Video"].) Counsel for Defendants Johnson, LaForest, Scott, and Tillett, stayed near defense counsel table during the exhibit review and did not personally participate. (See generally 9/13 Video.)
On September 14, 2017, the jury began deliberations at approximately 10:24 a.m. (Dkt. 1056 [Transcript 9/14/17] at 67.) At 4:00 p.m., the jury submitted a note to the Court inquiring whether it was proper for the jury to have Exhibit 188. (Dkt. 996 [hereinafter, "Jury Note 3"].) Exhibit 188 was an unadmitted demonstrative chart purporting to show phone calls between co-conspirators on the days of the robberies. Around 4:30 p.m. later that day, the jury was dismissed after deliberating for about six hours, and the Court conferred with the parties to address Jury Note 3. (Transcript 9/14/17 at 70.) The jury continued their deliberations at 8:30 a.m. on the morning of Friday, September 15, 2017. The jury received the Court's response to Jury Note 3, which instructed the jury that "Exhibit 188 should not have been provided to the jury as it was not admitted into evidence," and that the jury "should disregard it and determine the facts from the underlying evidence" unless it correctly reflected admitted evidence. (Dkt. 997.) At 8:40 a.m., the jury submitted Jury Note 4 as "a follow-up" to Jury Note 3, and notified the Court that it had Exhibit 188 and would "await the Court's response before proceeding any further with any of the evidence provided for the Jury to review." (Dkt. 998 [hereinafter, "Jury Note 4"].) The Court responded, repeating its admonition about Exhibit 188, and ordered Exhibit 188 removed from the jury's exhibit binder. (Dkt. 999.) At 9:15 a.m., the jury submitted another note to the Court stating, "[t]he Jury requests the Court retrieve all evidence from the Jury Room and review to assure for the Jury no other Exhibits that were not admitted into evidence were inadvertently provided." (Dkt. 1001 [hereinafter, "Jury Note 6"].) The Court then received all of the exhibit binders back from the jury, (Dkt. 1002 [Response to Jury Note 6] ), and the parties re-reviewed the exhibit binders, (see generally Dkt. 1143-1 Exs. G ["9/15 Video I"], H ["9/15 Video II"], I ["9/15 Video III"], J ["9/15 Video IV"] ).
Volume 7 was a three-inch binder that contained documents marked as the Government's Exhibits 148 through 203K. (Dkt. 1260 at 5.) During the re-review process, the parties determined that Volume 7 contained four admitted exhibits and twenty-eight unadmitted documents. (Transcript 9/15/17 at 11–23.) During the exhibit review, the parties apparently had only removed Exhibits 203 and 203A-203K from Volume 7. (Id. ; Dkt. 1143-1 Ex. A at 25–30.) The majority of the unadmitted documents in Volume 7 were demonstrative charts and maps, including Exhibit 188. Eight demonstrative charts depicted the conspirators' phone activity on the days robberies were committed or attempted. (Exs. 181-188.) Five demonstrative charts depicted the total number of telephone contacts between conspirators over the entire time period for which cell phone records existed. (Exs. 189-193.) Three demonstrative charts depicted a particular Defendant's telephone calls with any co-conspirator on specific dates relevant to the conspiracy. (Exs. 178-180.) The other demonstrative documents were GPS data for telephones associated with Walton, Johnson, and Darrell Dent, (Exs. 200-202), demonstrative maps prepared from that GPS data, (Ex. 199), two maps of Inglewood, California, (Exs. 152A, 152B), and DMV records related to Walton, (Exs. 196-197).
Exhibit 157 was another unadmitted exhibit inadvertently left in Volume 7. Exhibit 157 was a fifteen-page compilation of photographs taken during the June 16, 2016, search of Johnson's home in relation to this case. (Dkt. 1260-1 [Declaration of AUSA Scott Tenley, hereinafter "Tenley Decl."] ¶ 4, Ex. 2 ["Exhibit 157"].) The bottom right corner of each page in Exhibit 157 included text identifying it as "EXHIBIT 157," a page number, and a discovery Bates stamp, i.e., "Rolex_00068745." No person is depicted in any of the photographs. The photographs included images of a silver or light blue mini-van with paper license plates, a red helmet, firearms, and ammunition.
Volume 7 also contained several prejudicial criminal court documents. Two documents were state court arraignment hearing files from October 2013, containing Tillett and Walton's past criminal record, the charges against them in the state case, and the related criminal docket. (Exs. 148, 148A.) These two documents not only showed that Tillett and Walton had been charged with over twenty crimes, but also indicated the type of prison sentence they faced for such charges. (Id. ) The documents also charged Walton with commission of some of these crimes in association with a criminal street gang, as well as indicated that Walton had many previous convictions that were either serious felonies, violent felonies, or required him to register as a sex offender. (Id. ) Another document was the docket for Walton's prior federal criminal case in 2008 in Texas, which included Walton's convictions for interference with commerce by threat or violence, extortion, racketeering, firearm counts, and other counts that were dismissed. (Ex. 151.)
After the parties completed the re-review process, Tillett's counsel advised the Court that defense counsel had discovered three problems, "[o]ne [that] has to do with Mr. Johnson's photographs," one dealing with unadmitted Google maps and fill sheets in Volume 7, and unadmitted demonstrative charts and criminal court documents in Volume 7. (Transcript 9/15/17 at 12–23.) Johnson's counsel addressed the Court concerning the issue of Johnson's photographs, objecting to one photograph in Exhibit 50A which depicted Johnson with the phrase "Sox gang brackin" superimposed over the image, (id. at 24), which was admitted into evidence at trial, (Dkt. 1260 at 8). Defense counsel objected to the presence of the unadmitted criminal court records and the demonstrative charts in Volume 7, but not Exhibit 157, and asked the Court to declare a mistrial. (Transcript 9/15/17 at 40–41.) The Court determined that it would not grant or deny the motion for mistrial at that time. (Id. at 41.) The Court then directed the parties to correct Volume 7 and provide a jury instruction to accompany the exhibit binders when they were sent back to the jury. (Id. at 47–53.) At approximately 3:00 p.m. that afternoon, after the parties confirmed that the exhibit binders contained only admitted exhibits, the exhibit binders were returned to the jury for consideration during deliberations. (Id. at 54–55.) The Court also sent the jury a supplemental response to Jury Note 6 that stated, "You have now been presented with all of the exhibits admitted into evidence." (Dkt. 1003.)
On September 22, 2017, after deliberating for approximately twenty three more hours, the jury returned its verdicts. (Dkts. 1007–1012.) The jury acquitted Walton of one count, and convicted him on Counts One [conspiracy], Nine [Westime robbery], Eleven [Del Amo robbery], Twelve [brandishing a firearm in relation to Del Amo robbery], and Fourteen [Santa Monica robbery]. (Dkt. 1007.) After those verdicts were announced, the Court polled the jury to inquire whether any juror had been exposed to criminal court documents or demonstrative charts in Volume 7. (Dkt. 1058 [Transcript 9/22/17] at 44–53.) No juror saw or heard discussion about the criminal court documents, and only three jurors had seen the demonstrative charts. (Id. ) Two jurors were unsure whether they saw or heard discussion about a demonstrative chart. (Id. at 47, 49–50.)
Walton did not object to the Court's proposal to poll the jury only as to criminal court documents and demonstrative charts, and his counsel did not mention Exhibit 157 when the parties discussed polling the jury. (Transcript 9/22/17 at 10–15.)
III. DISCUSSION
A. Extrinsic Evidence
Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "[T]here is no rule of automatic reversal for a juror's reception of extraneous information, irrespective of the nature of the information or the manner in which it is received." United States v. Plunk , 153 F.3d 1011, 1024 (9th Cir. 1998), opinion amended on denial of reh'g , 161 F.3d 1195 (9th Cir. 1998), overruled on other grounds by Kumho Tire Co. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Rather, "[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." United States v. Prime , 431 F.3d 1147, 1157 (9th Cir. 2005) (internal quotation and citation omitted). "The prosecution bears the burden of proving beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict." Id.
The Ninth Circuit has developed nine factors that the district court should consider to determine whether the prosecution has met this burden. Those factors are: (1) whether the material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the jury discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict; (6) whether the extraneous information was otherwise admissible or merely cumulative of other evidence adduced at trial; (7) whether a curative instruction was given or some other step taken to ameliorate the prejudice; (8) the trial context; and (9) whether the evidence was insufficiently prejudicial given the issues and evidence in the case. Id.
As an initial matter, Walton does not address the Court's previous analysis regarding the majority of these factors. (See February 22 Order at 14–18.) Specifically, Walton does not dispute that the Court gave curative instructions and there is nothing in the record to suggest that the jury disregarded those instructions. The Court instructed the jury throughout the trial and made clear that the jury could consider only "the sworn testimony of any witness," "the exhibits received in evidence," and "any facts to which the parties agree." (Dkt. 1039 [Transcript 8/17/17 Vol. I] at 115; Dkt. 978 [Transcript 9/12/17 Vol. II] at 31–32.) After the jury brought the presence of unadmitted exhibits to the Court and the parties' attention, the Court provided a curative instruction with the corrected exhibit binders to indicate that the documents removed during the re-review process were not admitted. Curative instructions regarding what evidence may and may not be considered "are generally deemed sufficient as curative of prejudicial impact." United States v. Bagley , 641 F.2d 1235, 1241 (9th Cir. 1981) ; see United States v. Simtob , 901 F.2d 799, 806 (9th Cir. 1990) ("Prompt and effective action by the trial court may neutralize the damage by admonition to counsel or by appropriate curative instructions to the jury."); Prime , 431 F.3d at 1158 (noting that the district court "issued two separate curative instructions," which "weigh[ed] in favor of finding that the government established, beyond a reasonable doubt, that the extrinsic evidence did not affect the verdict").
Walton asserts that there was no curative instruction given related to the jury's exposure to Exhibit 157. (Mot. at 13.) But the Court's instruction to the jury after they received the corrected exhibit binders clearly indicated that the documents removed during the re-review process, which included Exhibit 157, were not admitted.
And after the jury recognized that Exhibit 188 was improperly provided to them, they unilaterally ceased review of the evidence and requested that the parties re-review the evidence to "assure ... that no other Exhibits that were not admitted into evidence were inadvertently provided." The jury proactively chose to ensure that only admitted evidence was before it, which also reflects its adherence to the Court's instructions. See, e.g. , United States v. Hernandez-Escarsega , 886 F.2d 1560, 1581 (9th Cir. 1989) (denying the defendant's motion for mistrial based on the jury's exposure to extrinsic evidence where the jury alerted the court to the evidence and the court gave a curative instruction); United States v. Mills , 280 F.3d 915, 922 (9th Cir. 2002) (When jurors were exposed to extrinsic evidence in deliberation, "recognized the [extrinsic material was] inappropriate and sent a note to the judge requesting advice on how to proceed," and the judge issued a curative instruction, the extrinsic evidence in this context was "relatively benign.").
Nor does Walton dispute that the jury's exposure to the extrinsic evidence was extremely limited. The jurors had heard all the evidence in the case before receiving extrinsic evidence in error, and that evidence was only briefly available at the outset of deliberations. After the unadmitted exhibits were removed at the jury's request, the jury deliberated for twenty three more hours. See Fields v. Brown , 503 F.3d 755, 781 (9th Cir. 2007) (noting that when "the [extrinsic] communication occurred early on in deliberations [that] [j]urors could take as much time as they needed to sort through the evidence and reflect").
Walton argues that six to seven hours of exposure to the extrinsic material "is not a short amount of time," and notes the Ninth Circuit has granted a new trial based on a jury's four-hour long exposure to extrinsic material in United States v. Vasquez , 597 F.2d 192, 194 (9th Cir. 1979). (Mot. at 12.) However, the facts in Vasquez demonstrated a reasonable possibility that the jury's verdict was affected not simply from the length of exposure to extrinsic evidence, but because most jurors either "glanced or leafed through" the evidence, the evidence contained the prosecution's motions and suggested instructions that had been denied pretrial, and contained inadmissible evidence that the defendant had been previously prosecuted for an offense involving contraband. Id. Considering all circumstances, there was a reasonable possibility that the extrinsic evidence at issue in Vasquez affected the jury's verdicts.
Most importantly, Walton does not dispute that the Government presented substantial objective, admitted evidence both to corroborate its cooperating witnesses' testimony and to prove Walton's guilt on all five counts. (See Dkt. 1167 [Court order denying Walton's motion for judgment of acquittal].) The Government corroborated the testimony of multiple cooperating witnesses with text messages, physical evidence, civilian witnesses, historical cell site data, and toll records. Overall, the admitted evidence showed beyond a reasonable doubt that Walton played a key role in the three robberies for which he was convicted and that, for the Del Amo robbery, it was foreseeable to Walton that a firearm would be used. The strength of the Government's evidence proving Walton's involvement in these three robberies renders any of the demonstrative charts and Exhibit 157's potential effects on the jury's verdicts inconsequential. See United States v. Saya , 247 F.3d 929, 939 (9th Cir. 2001) (the fact that the case against the defendant was "strong" was "of consequence in determining whether the introduction of extraneous information constituted prejudice").
And Walton does not dispute that the jury's ultimate verdicts make it extremely unlikely that the demonstrative charts or Exhibit 157 affected their deliberations. See United States v. Smith , 424 F.3d 992, 1012 (9th Cir. 2005) (affirming the district court's reasoning that it was unlikely that a juror's verdict had been prejudiced by a crush on a testifying government agent since he voted to acquit three defendants on many counts against them). As to the demonstrative charts, the jury rendered multiple acquittals in spite of the fact that the demonstrative charts directly implicated some defendants on those counts. (See, e.g. , Johnson's telephone activity surrounding the Count Fourteen robbery [Exs. 178, 183, 188, 189, 199]; LaForest's telephone activity surrounding the Count Eight robbery [Exs. 179, 184, 188] and the Count Thirteen robbery [Exs. 187, 188].) As to Exhibit 157, Johnson was acquitted of four of the five Section 924(c) charges against him, demonstrating that the jury did not reflexively convict Johnson of his firearm-related charges because they viewed Exhibit 157. Indeed, the firearms depicted in Exhibit 157 fit the description of the firearms used during the robberies for which Johnson was acquitted of the related Section 924(c) charges. (See Exhibit 157 at 5–6 [shotgun]; Dkt. 1044 [Transcript 8/22/17 Vol. 1] at 60 [Century City mall robbery], and Exhibit 157 at 9 [revolver]; Dkt. 970 [Transcript 8/31/17 Vol. II] at 27 [Westime West Hollywood robbery].) And Walton was convicted for only one Section 924(c) charge, related to the Del Amo robbery, indicating that the jury did not reflexively convict him due to exposure to Exhibit 157. Simply put, the jury's verdicts do not support the conclusion that the demonstrative charts or Exhibit 157 affected their verdicts in any way. Application of the Prime factors indicates that there was no reasonable possibility that the demonstrative charts or Exhibit 157 could have affected the jury's verdicts. Walton's arguments focus on whether the demonstrative charts and Exhibit 157 were prejudicial. But as the Court has previously held, the demonstrative charts were cumulative of admitted evidence, and Exhibit 157 had only an attenuated connection to Johnson and the Del Amo robbery, and thus, to Walton. In light of the Court's findings on all of the relevant factors, there was no reasonable possibility that the jury's receipt of the demonstrative charts and Exhibit 157 could have affected their verdicts.
i. Demonstrative Charts
Walton argues that the demonstrative charts "create[d] the risk of distorting the trial by overemphasizing one particular portion of the Government's argument or evidence." (Mot. at 14–15.) He asserts that the demonstrative charts were not "merely derivative or summarizing," and that "[i]t is irrefutable that multiple members of the jury honed in on these argumentative and suggestive exhibits; it is also reasonably possible that these exhibits influenced their verdict." (Id. at 15.)
To the extent Walton suggests that the Government improperly created the demonstrative charts, the Court found that Exhibit 188 was "a fair exhibit for closing argument," and permitted the Government to show nine demonstrative charts during closing argument. (Dkts. 1142 at 6–7, 1055 [Transcript 9/13/17 Vol. I] at 50–55; Transcript 9/15/17 at 45.)
Walton's argument ignores the Court's detailed findings that the demonstrative charts did not expose the jury to any new evidence, as they were cumulative of other information and argument properly before the jury. (February 22 Order at 16–17.) The demonstrative charts depicted the information from admitted toll records, (see, e.g. , Exs. 185, 136B; Dkt. 1054 [Transcript 9/12/17 Vol. I] at 15), FBI Special Agent Kevin Boles ("SA Boles") testified at length about the co-conspirators' telephone activity, (see generally Transcript 9/12/17 Vol. I), and the jury was shown nine of the demonstrative charts during closing arguments, (Dkts. 1142 at 6–7, 1055 [Transcript 9/13/17 Vol. I] at 50–55). This is not a case in which the "jury is exposed to facts that have not been introduced into evidence," and a defendant's rights of "confrontation, cross-examination, and the assistance of counsel with regard to the extraneous information" have been compromised. Dickson v. Sullivan , 849 F.2d 403, 406 (9th Cir. 1988). The jury's exposure to the demonstrative charts was not prejudicial because they were cumulative of admitted evidence. See Prime , 431 F.3d at 1157 (concluding that "[a]lthough the jury had access to the evidence for approximately three hours, jury review of the [evidence] was not prejudicial," as the evidence was cumulative of what had been testified to and admitted at trial); Hughes v. Borg , 898 F.2d 695, 699–700 (9th Cir. 1990) (affirming the district court's holding that there was "no reasonable possibility that the[ ] extraneous documents could have affected the verdict because they were merely duplicative of evidence properly admitted at trial"); United States v. Bishop , 492 F.2d 1361, 1366 (8th Cir. 1974) (denying motion for new trial because "the objectionable nature of [erroneously provided exhibit] was its form," and "[t]he original telephone records which served as an official source for [the exhibit]" were admitted into evidence).
The demonstrative charts that were not shown to the jury during closing arguments could not have reasonably impacted the jury's verdict either. Two of the charts showed a subset of information in the demonstrative charts shown to the jury, (Exs. 180, 183), one chart was dedicated to Tillett's calling activity, who was acquitted, (Ex. 179), and the remaining four charts were related to the frequency of communication between co-conspirators, which was cumulative of the evidence shown in the demonstrative charts and admitted toll records, (Exs. 189–93).
ii. Exhibit 157
Walton argues that Exhibit 157 was prejudicial and affected the jury's verdicts. (Mot. at 12–13.) Specifically, he argues that the photos provided a strong link between Johnson and the Del Amo robbery, and because Walton's relationship with Johnson supported Walton's conviction for the Section 924(c) charge related to the Del Amo robbery, any prejudice to Johnson arising from Exhibit 157 also "falls directly onto Walton." (Id. at 12.)
As the Court previously noted, the Court has serious doubts that any juror even saw Exhibit 157. None of the photographs in Exhibit 157 were ever mentioned during the trial nor in any note submitted to the Court by the jury. But the Court assumes that at least one juror saw Exhibit 157 for purposes of its analysis.
As the Court previously held, Exhibit 157 had a very attenuated connection to Johnson, and any potential prejudice was inconsequential. (Dkt. 1266 at 11.) No person was depicted in the photographs nor was there any textual reference to Johnson. There was no obvious indication that the photographs were of Johnson's home. Although one photograph in Exhibit 157 showed a silver or light blue van with paper plates, the relevant testimony at trial was conflicting as to whether Johnson operated a silver Caravan, an Astro van, or a "blue minivan." (Dkt. 1260 at 23.) Further, even if the jurors connected this single photograph to Johnson, there is no reason why the jurors would automatically conclude that the rest of the photographs depicted Johnson's home or possessions.
The Court notes that the Government presented significant admitted evidence regarding Johnson's participation in the Del Amo robbery, including the testimony of three cooperating witnesses, text messages between Johnson and Dent, historical cell-site data placing Johnson at the scene of the crime during the attempted robbery and actual robbery, and toll records showing Johnson's communications with co-conspirators at relevant times. Walton's suggestion that Exhibit 157 established Johnson's participation in the Del Amo robbery is simply inaccurate. And the Government's strong evidence of Johnson's guilt renders any of Exhibit 157's potential effects on the jury's verdicts inconsequential. See Saya , 247 F.3d at 939.
Walton argues it is not illogical for a juror to make a connection between Johnson's red motorcycle and the photograph of a red helmet, "given the number of times the red motorcycle was brought up during trial." (Mot. at 13.) But there was no testimony that Johnson owned or wore a red helmet, (Dkt. 1260 at 23), and Johnson's red motorcycle was only mentioned eight times, mainly during cross-examination by Johnson's counsel in which he suggested the testimony was false. (Dkt. 1330 [Government's Opposition, hereinafter "Opp."] at 34–35.) Like the photograph of the van, even if the jurors connected this photograph to Johnson, there is no reason for the jurors to conclude the rest of the photographs were also related to Johnson, let alone the Del Amo robbery.
Walton also argues that a juror could have easily mistaken the photo of a pistol with the barrel obscured as the firearm used in the Del Amo robbery. (Mot. at 13.) Walton states that the surveillance video of that robbery shows the color of the firearm barrel, and not the handle, so the photograph of a pistol with a brown handle could be mistaken for the Del Amo robbery firearm. Exhibit 157 contains photographs of a silver semi-automatic pistol, (Exhibit 157 at 12), and a semi-automatic pistol with a brown handle with the barrel obscured from view, (id. at 7–8). Neither of these pistols matches the description of an entirely black semiautomatic pistol that the witnesses testified was used during the Del Amo robbery. (Dkts. 1045 [Transcript 8/23/17 Vol. I] at 44, 1046 [Transcript 8/29/17 Vol. I] at 10.) There was no testimony about a gun with a brown handle. (Opp. at 35.)
iii. Criminal Court Documents
Walton argues that "logic ... dictates that there is more than a reasonable possibility that a juror" would have seen Walton's criminal convictions, as they were contained in the first pages of Volume 7, where the jury identified Exhibit 188. (Mot. at 13–14.) Walton asserts that the Court's polling "does not diminish the existence of a ‘reasonable possibility’ " that the jury could have been exposed to Walton's criminal convictions." (Id. at 14.)
Walton asserts that the jury could have answered the Court's questions incorrectly "based on jury misunderstanding or tiredness at the end of a five-week trial." (Mot. at 4.) The record of the Court's polling reflects that all jurors capably responded to the Court's four questions, and none evinced confusion as to what was being asked.
The Court previously dismissed similar speculative arguments that the criminal court documents could have affected the jury's verdicts in its February 22 Order. (February 22 Order at 18–19.) All twelve jurors individually and unequivocally stated they neither saw nor heard any discussion regarding criminal court documents when polled. "[W]hen a defendant challenges a juror's reception of extrinsic information, he must, as a threshold matter, make a showing that the juror actually received–i.e. , either saw or heard–the information." Plunk , 153 F.3d at 1025 n.12. Where "none of the jurors in the instant case ever actually viewed" the evidence at issue, the extrinsic evidence was never actually considered, obtained, or used by the jury, and "there could be no ‘reasonable possibility’ that the evidence affected the jury's deliberations." Id. at 1025 ; see also United States v. Lopez-Martinez , 543 F.3d 509, 517 (9th Cir. 2008) ("If, as the deliberating jurors all testified, none of them even saw the paper with the alternative jury instructions on it, it is logically impossible that this extrinsic evidence affected their verdict.") Walton's renewed argument without any evidence to support it provides no reason to now find that a juror did see the documents. See United States v. Argentine , 814 F.2d 783, 789 (1st Cir. 1987) ("reasonable possibility" does not mean possibilities that are "fanciful, chimerical, or purely speculative").
B. Historical Cell-Site Evidence
On March 1, 2016, the Government applied for a court order under the Stored Communications Act ("SCA") Sections 2703(c)(1)(B) and 2703(d) to obtain historical cell-site location records for Walton and others suspected of participating in the alleged smash-and-grab robbery conspiracy. (Mot. Ex. A.) The SCA permits the government to obtain "a record or other information pertaining to a subscriber" to an electronic communication service when the government offers "specific and articulable facts showing that there are reasonable grounds to believe that ... the records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(c)(1), (d). The "specific and articulable facts" standard is a "lesser showing than the probable cause standard that is required by the Fourth Amendment to obtain a warrant." United States v. Dorsey , No. CR 14-328-CAS, 2015 WL 847395, at *7 (C.D. Cal. Feb. 23, 2015) (quoting In re Application of U.S. for Historical Cell Site Data , 724 F.3d 600, 606 (5th Cir. 2013) ). The court order directed a communications company to turn over Walton's records, including call detail records that indicated historical cell-site location, from August 24, 2015, until March 1, 2016. (Mot. Ex. A at 2–3.) At trial, the Government called an expert witness, SA Boles, to testify about the historical cell-site data. (See Transcript 9/12/17 Vol. I.)
In a pre-trial motion, Johnson moved to exclude SA Boles' testimony, asserting that the data about which he would testify was obtained without probable cause. (Dkt. 595.) At that time, the Supreme Court had granted certiorari of a case to determine this issue. The Court denied Johnson's motion, and found that the historical cell-site data that SA Boles relied on was admissible pursuant to the good faith exception to the exclusionary rule. (Dkt. 832 [Under seal] at 36–37.) In Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), the Supreme Court held that the government's acquisition of an individual's cell site records is "a search within the meaning of the Fourth Amendment." Id. at 2220. More specifically, the Supreme Court held that any order authorizing the disclosure of cell-site location information issued under Section 2703(d) of the SCA is "not a permissible mechanism for accessing historical cell-site records," as the SCA requires only that the Government show "reasonable grounds" for believing that the records are relevant and material to an ongoing investigation. Id. at 2221. Rather, the Government must generally obtain a warrant supported by probable cause before acquiring such records. Id.
Walton argues that in light of the Supreme Court's ruling in Carpenter , the Government violated his Fourth Amendment rights when it conducted a search and seizure of his historical cell-site information without probable cause or a warrant. (Mot. at 3–7.) Thus, Walton argues because his historical cell-site information was improperly acquired, the Court must remand the case for a new trial at which that evidence must be excluded.
Walton also argues that the admission of his historical cell-site data affected the jury's verdict in various ways, but these arguments are irrelevant, as the data was properly admitted. (Mot. at 7–10.)
While Carpenter now controls the manner in which the government can obtain cell-site location information going forward, it has no effect on Walton's case and the jury's guilty verdicts. The exclusionary rule's "sole purpose ... is to deter future Fourth Amendment violations." Davis v. United States , 564 U.S. 229, 236–37, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). When the Government "act[s] with an objectively ‘reasonable good-faith belief’ that their conduct is lawful," the exclusionary rule will not apply. Id. at 238, 131 S.Ct. 2419 (quoting United States v. Leon , 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ). Objectively reasonable good faith includes "searches conducted in reasonable reliance on subsequently invalidated statutes." Id. at 239, 131 S.Ct. 2419 ; see United States v. Chavez , 894 F.3d 593, 607-09 (4th Cir. 2018) ( Carpenter did not affect the application of the good faith exception to investigators' collection of cell-site data pursuant to a Section 2703(d) order issued prior to Carpenter ); United States v. Alvarez , No. 14-CR-00120-EMC, 2016 WL 3163005, at *6 (N.D. Cal. June 3, 2016) (the government reasonably relied on the SCA to obtain cell-site data, and the good faith exception applied as neither the Ninth Circuit or Supreme Court had invalidated the SCA at the time the search was executed); see also United States v. Lustig , 830 F.3d 1075, 1080 (9th Cir. 2016) (the officers reasonably interpreted binding precedent to authorize a warrantless search and the good faith exception applied, even though the Supreme Court had recently ruled that a warrant was required under the circumstances of the case).
Here, the good faith exception to the exclusionary rule applies to the Government's acquisition of Walton's historical cell-site data. Evidence obtained pursuant to an invalid search should not be suppressed if law enforcement "acted in good faith in conducting the search." Leon , 468 U.S. at 922, 104 S.Ct. 3405. The good faith exception applies equally "when officers act in objectively reasonable reliance upon a statute authorizing warrantless administrative searches" even if the statute is ultimately found to violate the Fourth Amendment. Illinois v. Krull , 480 U.S. 340, 349–50, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). In this case, the Government's reliance on the Section 2703(d) order issued by a neutral magistrate judge pursuant to the SCA, that was valid and enforceable when it was issued, was objectively reasonable. Thus, "the good faith doctrine would apply, regardless of the constitutionality of the statute." United States v. Moreno-Nevarez , No. 13-CR-0841-BEN, 2013 WL 5631017, at *2 (S.D. Cal. Oct. 2, 2013). Nor would the underlying purpose of exclusion—deterring willful infringement of defendants' rights by police through unlawful searches—be served by suppressing the evidence here, since law enforcement followed all necessary procedures to obtain a Section 2703(d) order. See Leon , 468 U.S. at 919–20, 104 S.Ct. 3405 ("[W]here the officer's conduct is objectively reasonable, ‘excluding the evidence will not further the ends of the exclusionary rule in any appreciable way’ .... This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope."). Simply stated, the good faith exception precludes suppression of the evidence in this case, as the Court previously held when ruling on Johnson's pretrial motions and in United States v. Elima , No. SACR 16-00037-CJC, 2016 WL 3546584 (C.D. Cal. June 22, 2016).
The Government also relied upon two Supreme Court decision in determining that cell site data could be obtained without a warrant. (Opp. at 26.) See United States v. Miller , 425 U.S. 435, 437-38, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (no Fourth Amendment interest in bank records); Smith v. Maryland , 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (no Fourth Amendment interest in dialed telephone numbers contained in telephone company's business records). The government reasonably interpreted Miller and Smith to hold that obtaining cell site information was not a "search" under the Fourth Amendment because individuals have no reasonable expectation of privacy in business records." (Opp. at 26.) See, e.g. , United States v. Graham , 824 F.3d 421, 425 (4th Cir. 2016). "Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." Davis , 564 U.S. at 241, 131 S.Ct. 2419.
Because the Court finds that the good faith exception to the exclusionary rule applies, it is unnecessary to address the Government's argument that any error arising from the cell-site evidence was harmless as to Walton. (Opp. at 27–28.)
IV. CONCLUSION
For the foregoing reasons, Defendant Walton's motion for reconsideration is DENIED.
The Court GRANTS LaForest's motions for joinder in Walton's motion for reconsideration. (Dkt. 1320.) Because Walton was not prejudiced by any of the challenged evidence for all the reasons set forth above, LaForest also did not suffer any prejudice.
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