United States v. Valentino Johnson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 16-10184

Plaintiff-Appellee/ 16-10225

Cross-Appellant,

D.C. No.

v. 3:14-cr-00412-

TEH-1

VALENTINO JOHNSON,

Defendant-Appellant/

Cross-Appellee. OPINION

Appeal from the United States District Court

for the Northern District of California

Thelton E. Henderson, Senior District Judge, Presiding

Argued and Submitted September 14, 2017

San Francisco, California

Filed November 27, 2017

Before: Eugene E. Siler, * Richard C. Tallman,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Tallman

*

The Honorable Eugene E. Siler, United States Circuit Judge for the

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 UNITED STATES V. JOHNSON

SUMMARY **

Criminal Law

The panel affirmed the defendant’s conviction as a felon

in possession of a firearm, and, on the government’s cross-

appeal, vacated the sentence and remanded for resentencing.

The panel held that the warrantless searches of the

defendant’s cell phone were constitutionally reasonable,

given his status as a parolee and his reduced expectation of

privacy. The panel held that delays in searching his phone

were not unreasonable.

Regarding the defendant’s argument that a handgun

discovered during a search of his aunt’s residence should

have been suppressed, the panel held that the district court

did not clearly err in finding that the defendant’s aunt gave

valid verbal consent for the search, where the district court

credited the officers’ testimony and not that of the defense

witnesses.

The panel rejected the defendant’s challenge to the

admission of testimony from an officer about the defendant’s

aunt’s out-of-court statements in a recorded interview. The

panel held that the defendant’s aunt’s statements were not

hearsay and their admission did not violate the defendant’s

Confrontation Clause rights, given the government’s need to

rebut the defendant’s third-party culpability defense. The

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. JOHNSON 3

panel held that, in any event, any error was harmless and did

not affect the defendant’s substantial rights.

The panel held that the district court did not abuse its

discretion in denying the defendant’s Daubert motion to

exclude a firearms examiner’s testimony and a written

ballistics analysis.

Applying United States v. Barragan, 871 F.3d 689 (9th

Cir. 2017), the panel, on the government’s cross-appeal,

vacated the defendant’s sentence and remanded with

instructions to treat the defendant’s prior armed robbery

conviction under Calif. Penal Code § 211(a) as a crime of

violence under the Sentencing Guidelines.

COUNSEL

Aaron T. Chiu (argued), Erin E. Wilk, and Niall E. Lynch,

Latham & Watkins LLP, San Francisco, California, for

Defendant-Appellant/Cross-Appellee.

Merry J. Chan (argued), Assistant United States Attorney; J.

Douglas Wilson, Chief, Appellate Division; Brian J. Stretch,

United States Attorney; United States Attorney’s Office, San

Francisco, California; for Plaintiff-Appellee/Cross-

Appellant.

OPINION

TALLMAN, Circuit Judge:

Valentino Johnson was convicted as a felon in

possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1) & 924(e), after an emergency 911 call reporting

4 UNITED STATES V. JOHNSON

an attempted suicide led San Francisco police to discover a

handgun at the apartment where Johnson was temporarily

staying while on parole. Johnson challenges the denial of

two motions to suppress evidence gathered during the

warrantless search of the residence and a subsequent

warrantless search of his cell phone, which revealed

incriminating evidence tying him to the gun. Johnson also

appeals the admission of witness testimony on hearsay

grounds, and he claims a violation of his Confrontation

Clause rights at trial. Finally, Johnson challenges the denial

of his Daubert motion to exclude expert ballistics testimony

further linking him to the weapon found by the police.

The government cross-appeals the district court’s

determination at sentencing that Johnson’s prior conviction

for armed robbery under California Penal Code (“CPC”)

§ 211(a) did not qualify as a “crime of violence” for

purposes of establishing Johnson’s base offense level.

U.S.S.G. §§ 2K2.1, 4B1.2. We affirm the district court on

all issues raised in Johnson’s direct appeal, but vacate

Johnson’s sentence based on the government’s cross-appeal

and remand with instructions that a conviction under CPC

§ 211(a) qualifies as a crime of violence, warranting a base

offense level of 24 under U.S.S.G. § 2K2.1(a)(2).

I

On February 2, 2014, Valentino Johnson’s ex-girlfriend

called 911 from Emeryville, California, to report that

Johnson had threatened to kill himself with a gun. The caller

informed the dispatcher that Johnson was at the home of his

UNITED STATES V. JOHNSON 5

aunt, Luana McAlpine, 1 in San Francisco, and that she had

received a “hysterical” call from McAlpine alleging Johnson

had shot himself.

San Francisco Police Department (“SFPD”) officers

were dispatched to McAlpine’s apartment in a Bayview

District public housing project. Before they arrived,

responding officers received additional information about

Johnson. Dispatch informed the officers that Johnson did

not live at the Bayview District apartment. Mobile data

terminal readouts from patrol car computers showed that

Johnson’s address on file with the California Department of

Motor Vehicles was in Emeryville, across the bay, in

Alameda County. But the readouts also showed that a

domestic violence temporary restraining order had been

issued on January 29, commanding that Johnson move out

from the Emeryville address. Four days earlier, SFPD

officers in the Bayview area, where McAlpine resided, had

also received an All-Points Bulletin (“APB”) advising that

Johnson was a suspect in a recent armed burglary involving

a damaged 9mm handgun. According to the APB, Johnson

was currently on mandatory parole supervision and had prior

arrests for murder, attempted murder, assault, kidnapping,

false imprisonment, domestic violence, carjacking, and

robbery.

Arriving officers discovered the 911 call had been a false

alarm. They saw Johnson—alive and unharmed—peering

down from an upstairs window, and officers asked to speak

with Johnson and McAlpine outside. Johnson and McAlpine

complied, but the parties dispute what happened next. We

1

McAlpine later explained that she is not actually Johnson’s blood

relative, but rather that they are close friends who were at one time

romantically involved.

6 UNITED STATES V. JOHNSON

credit the testimony admitted by the district court at the

evidentiary hearing, after which the district judge made

express credibility findings as to whose stories the fact-

finder believed. SFPD Officer Wise testified that both

McAlpine and Johnson stated that Johnson lived at the San

Francisco residence. On direct examination, McAlpine

testified she told police only she and her daughter, Norrisha

Rivers, lived there. But on cross-examination, McAlpine

testified she may have told officers that Johnson was either

living or paroled there (and that Johnson had provided his

parole officer with that address). The district court credited

the officers’ testimony.

McAlpine said that within minutes, more than a dozen

officers had arrived at the scene. None had guns drawn.

According to Officers Cader and Wise, they asked McAlpine

if officers could check inside the apartment to ensure no one

had been hurt, and McAlpine consented. McAlpine, on the

other hand, testified that she assumed the officers were

conducting a parole search (pursuant to a condition of

Johnson’s parole status, about which she previously knew),

and therefore she felt she could not refuse entry to the

officers. Wise testified he did not inform McAlpine that the

search was a parole search. The search did not begin until

McAlpine consented. The officers then proceeded to search

the apartment without a warrant.

Inside the apartment, Officer Cader discovered a Taurus

PT-92 semi-automatic 9mm pistol in a box in an upstairs

bedroom used by Norissha Rivers. The magazine of the gun

was missing, and part of the gun’s heel was damaged.

Officers also discovered 68 rounds of various types of

ammunition in a dry bag on a second-floor balcony outside

Rivers’s bedroom. In Rivers’s bedroom, they also found

Johnson’s clothing, mail, and three prescription bottles in his

UNITED STATES V. JOHNSON 7

name, as well as clothing belonging to Rivers’s boyfriend,

Jakieth Martin.

Outside the apartment, Sergeant Plantinga asked

McAlpine in a recorded conversation about the gun’s

ownership. McAlpine responded, “I know it’s not mine, I

know it’s not my daughter’s, and there’s only one other

person it could’ve been, and that is Valentino Johnson.”

Plantinga had McAlpine sign a written consent form

authorizing the search. McAlpine testified that, around the

time of her conversation with Sergeant Plantinga, another

officer threatened that she could lose her public housing if

she was not honest and truthful. The officers denied that

threat, stating that only after the gun was found did

McAlpine become upset because it could cause her problems

with the housing authority. The district court explicitly

found that the testimony of the several officers was more

credible than that of McAlpine.

During the search, officers handcuffed Johnson outside

the apartment. Lieutenant Braconi explained to Johnson that

SFPD was responding to a 911 call from his ex-girlfriend

about an attempted suicide. Johnson told Lieutenant Braconi

to check the call logs and text messages on his cell phone to

prove he had not contacted his ex-girlfriend or threatened to

kill himself. Braconi verified that no calls were made from

Johnson’s cell phone around the time of the 911 call.

After the gun was discovered, Johnson was taken into

custody. During an interview with Sergeants Jonas and

Plantinga at the Bayview police station, Johnson said he had

been staying with McAlpine because he had fought with his

ex-girlfriend and later had been served with a restraining

order. He told Jonas and Plantinga to again “look at the text

messages on [his] phone” to verify that he had tried to

reconcile with his ex-girlfriend around January 21, 2014.

8 UNITED STATES V. JOHNSON

After the interview, Johnson remained in custody and his

phone was given to Sergeant Jonas for forensic analysis.

Three days later, on February 5, 2014, SFPD’s

multimedia forensics unit reported to Jonas that they were

unable to make a digital copy of the phone’s contents

because the phone was too new for the unit’s software.

Instead, Jonas searched the phone by hand without first

obtaining a warrant. Sergeant Jonas scrolled through old text

messages sent from Johnson’s phone, making screen shots

of relevant information. He found an incriminating text sent

on January 28, 2014, that read: “Who you know that has 9-

mm clips? I just busted mine. It’s a PT-92 Taurus. . . . So

how do I get it?” One year later, on February 2, 2015, after

Johnson had been indicted on federal charges but before

trial, the Bureau of Alcohol, Tobacco, Firearms &

Explosives (“ATF”) obtained a search warrant for the phone,

and the text message was admitted at trial.

II

On July 31, 2014, a federal grand jury indicted Johnson

on a single count of being a felon in possession of the

handgun, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e). 2

Before trial, Johnson moved to suppress the handgun and

text messages found on his cell phone as the products of

illegal searches. After conducting an evidentiary hearing to

establish the facts, the district court denied the motions on

the grounds that McAlpine had consented to the search of

2

The grand jury later returned a superseding indictment, adding an

additional count of obstruction of justice, 18 U.S.C. § 1512(c)(2), after

Johnson was recorded on jail telephones suborning perjury from

McAlpine as to who owned the gun. The district court severed that count

before trial on the gun charge, and the government voluntarily dismissed

it after the jury returned a guilty verdict on the felon in possession charge.

UNITED STATES V. JOHNSON 9

her apartment and that the warrant requirement does not

apply to searches of parolees’ cell phones. The court also

allowed into evidence at trial, over objection, testimony from

Jonas regarding McAlpine’s statement to Sergeant Plantinga

that the gun must have belonged to Johnson. Additionally,

the court denied Johnson’s motion to exclude expert

testimony from SFPD’s ballistics expert, Mark Proia. After

a five-day trial, the jury returned a guilty verdict.

Johnson was sentenced on April 4, 2016. When

calculating Johnson’s base offense level, the district court

declined to classify Johnson’s prior armed robbery

conviction under CPC § 211(a) as a crime of violence for

purposes of the career-offender enhancement. See U.S.S.G.

§ 2K.1(a)(2). The court therefore assumed Johnson had only

one prior conviction for a crime of violence, a 1994

conviction for assault with a firearm, and calculated the base

offense level as 20. See U.S.S.G. § 2K.1(a)(4)(A). The

court applied a two-level enhancement for the attempted

obstruction of justice. See U.S.S.G. § 3C1.1. With a

criminal history category of V, the court calculated the

Guidelines range as 77 to 96 months, and imposed a sentence

of 96 months in prison. The district court entered final

judgment, and Johnson timely appealed. The government

cross-appealed the district court’s sentencing determination.

We have jurisdiction under 28 U.S.C. § 1291.

III

Johnson first argues that the warrantless searches of his

cell phone violated his Fourth Amendment rights. He asks

us to find that Riley v. California, 134 S. Ct. 2473 (2014),

and our decision in United States v. Lara, 815 F.3d 605 (9th

Cir. 2016), apply to parolees. Riley held that warrantless

searches of cell phones incident to arrest violate the Fourth

Amendment, 134 S. Ct. at 2485, while Lara held that the

10 UNITED STATES V. JOHNSON

same principle applied to suspicionless searches of

probationers’ cell phones, 815 F.3d at 612. Johnson further

contends that his Fourth Amendment rights were violated

because the searches of his cell phone were unreasonably

delayed.

The government responds that Riley and Lara do not

apply in the parolee search context because the balance of

privacy interests and factual circumstances in this context

are different. Alternatively, the government argues that,

even if the Constitution normally requires warrants for

searches of parolees’ cell phones, no constitutional violation

occurred here, because: (1) Johnson consented to a search

of his phone; (2) any constitutional error was cured by the

later-obtained federal warrant; and (3) the searching

officers’ conduct falls under the good-faith exception to the

exclusionary rule given the state of the law at the time of the

trial. Because Johnson’s status as a parolee significantly

diminishes his privacy interests compared to the defendants

in Riley and Lara, we affirm the district court’s ruling. 3

A

We review the denial of Johnson’s suppression motion

de novo, and “the district court’s factual findings for clear

error.” United States v. Sullivan, 797 F.3d 623, 632–33 (9th

Cir. 2015). “[T]he ultimate touchstone of the Fourth

Amendment is reasonableness.” Riley, 134 S. Ct. at 2482

(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

Determining the reasonableness of a particular search

involves balancing “on the one hand, the degree to which

[the search] intrudes upon an individual’s privacy, and on

3

Because we affirm on this ground, we do not reach the

government’s alternate arguments.

UNITED STATES V. JOHNSON 11

the other, the degree to which [the search] is needed for the

promotion of legitimate governmental interests.” Lara,

815 F.3d at 610 (alterations in original) (quoting United

States v. Knights, 534 U.S. 112, 119 (2001)).

We have repeatedly recognized that status as a parolee 4

significantly diminishes one’s privacy interests as compared

to the average citizen. See Samson v. California, 547 U.S.

843, 850 (2006). “[P]arole is an established variation on

imprisonment of convicted criminals” and granted only “on

the condition that the prisoner abide by certain rules during

the balance of the sentence.” Id. (quoting Morrissey v.

Brewer, 408 U.S. 471, 477 (1972)). Parolees are thus subject

to various state-imposed intrusions on their privacy,

including mandatory drug tests, meetings with parole

officers, and travel restrictions. Id. at 851. California law

also specifically provides that all parolees shall be “subject

to search or seizure by a probation or parole officer or other

peace officer at any time of the day or night, with or without

a search warrant or with or without cause.” Cal. Penal Code

§ 3067(b)(3).

“[R]estrictions on a parolee’s liberty are not

unqualified,” however, and parolees still enjoy limited

4

Although Johnson was classified as being under “mandatory

supervision” by a parole officer under CPC § 1170(h)(5)(B), we have

previously held that “the State’s interest in supervising offenders placed

on mandatory supervision is comparable to its interest in supervising

parolees.” See United States v. Cervantes, 859 F.3d 1175, 1181 (9th Cir.

2017), as amended, __ F.3d __ (Sept. 12, 2017). Therefore, we conduct

our analysis and refer to Johnson as a “parolee.”

12 UNITED STATES V. JOHNSON

Fourth Amendment rights. 5 Samson, 547 U.S. at 850 n.2.

Recent case law emphasizes that even offenders with

otherwise reduced privacy expectations—arrestees in Riley,

and probationers in Lara—have a right to be free from

unreasonable searches of their cell phones. In Riley, the

Supreme Court reasoned that because cell phones store vast

quantities of sensitive data, and because cell phones have

become ubiquitous, the privacy interests implicated in cell

phone searches are particularly acute. See 134 S. Ct. at

2489–91. Unlike other types of searches, the search of a

person’s cell phone can “typically expose . . . far more than

the most exhaustive search of a house,” as modern cell

phones contain “[t]he sum of an individual’s private life.”

Id. at 2489, 2491. The unique features of cell phones led the

Court to conclude that

[c]ell phones differ in both a quantitative and

a qualitative sense from other objects that

might be kept on an arrestee’s person. The

term “cell phone” is itself misleading

shorthand; many of these devices are in fact

minicomputers that also happen to have the

capacity to be used as a telephone. They

could just as easily be called cameras, video

players, rolodexes, calendars, tape recorders,

libraries, diaries, albums, televisions, maps,

or newspapers.

Id. at 2489. Riley’s emphasis on the almost sui generis

nature of cell phones weighed heavily in Lara. In that case,

despite the defendant’s status as a probationer, and even

5

For example, California courts have held that parole searches

violate the Fourth Amendment if they are “arbitrary, capricious, or

harassing.” People v. Reyes, 968 P.2d 445, 450 (Cal. 1998).

UNITED STATES V. JOHNSON 13

though he agreed to “submit [his] person and property,

including any residence, premises, container or vehicle

under [his] control to search and seizure” as a term of his

probation, we ultimately concluded that the defendant’s

privacy interest “was substantial in light of the broad amount

of data contained in, or accessible through, his cell phone.”

Lara, 815 F.3d at 611–12. Under Riley and Lara, therefore,

Johnson’s claim of an enhanced privacy interest in the

contents of his cell phone appears weighty.

As previously noted, however, the government’s interest

in supervising parolees is “substantial.” Samson, 547 U.S.

at 853. Those interests include combating recidivism,

promoting reintegration, and effectively detecting parole

violations. Id. at 853–54. Requiring officers to obtain a

warrant before searching a parolee’s cell phone would often

undermine the state’s ability to supervise effectively

thousands of parolees and prevent concealment of criminal

conduct as in the case here. See id. at 854. Lara held that

these governmental interests were ultimately insufficient to

overcome a probationer’s substantial privacy interest in his

cell phone, although the government’s interests were

reduced when the suspected probation violation (missing an

appointment with the probation officer) was not a serious or

violent crime. See 815 F.3d at 612.

Despite these significant competing interests, we hold

that the warrantless searches of Johnson’s cell phone were

constitutionally reasonable, given Johnson’s status as a

parolee. Johnson’s parolee status may be of even greater

concern here due to his lengthy and serious criminal history

involving violent offenses. But most persons released on

parole supervision are completing a sentence that involved

incarceration for serious offenses. We do not think a

workable rule can be fashioned for officers on the street

14 UNITED STATES V. JOHNSON

based on an argument that police should first examine the

severity of the parolee’s prior criminal record in determining

whether or not they may conduct a warrantless search of a

parolee or his cell phone when the parolee is subject to a

search condition. 6

While privacy interests in cell phones are significant,

Johnson’s parole status alone distinguishes our case from

Lara and Riley. It is well established that parolees have

reduced privacy interests compared to probationers, see, e.g.,

Samson, 547 U.S. at 850; Lara, 815 F.3d at 610, and even

more so compared to those persons who have been arrested

but not convicted. Indeed, “[o]n the ‘continuum’ of state-

imposed punishments,” parolees appear to hold the most

limited privacy interests among people convicted of a crime

but are not actually imprisoned. See Samson, 547 U.S. at

850 (explaining that “parole is more akin to imprisonment”

than probation, and that “parole is an established variation

on imprisonment of convicted criminals” (quoting

Morrissey, 408 U.S. at 477)). Moreover, as a parolee,

Johnson knew that under CPC § 3067, he could be searched

“at any time of the day or night, with or without a search

warrant or with or without cause.” (emphasis added). This

search condition sweeps more broadly than the probation

search condition at issue in Lara, which we held did not

apply to cell phone searches because the search condition in

Lara referred specifically to searches of “containers” and

“property.” 815 F.3d at 610–11.

6

Before commencing parole, the parolee is informed and must

acknowledge in writing that he and his property are subject to the

warrantless search condition under CPC § 3067(b)(3). Both McAlpine

and Johnson admitted they were aware of this condition of Johnson’s

mandatory parole supervision before police arrived at the Bayview

apartment.

UNITED STATES V. JOHNSON 15

The government’s interests in searching Johnson’s cell

phone were also weightier than the governmental interests at

stake in Lara, where the cell phone search occurred after the

defendant missed a probation meeting. Accordingly, we

held that this violation was “worlds away from the suspected

crimes”—such as arson and homicide—that had justified

warrantless searches of probationers’ homes in other cases.

Id. at 612 (distinguishing Knights, 534 U.S. at 112, and

United States v. King, 736 F.3d 805, 806 (9th Cir. 2013)).

Here, at the time of the cell phone search, officers knew

Johnson had a violent criminal history, and had reason to

believe his cell phone contained evidence of serious parole

violations, including possession and use of a firearm in a

residential burglary. As such, there was no evidence

showing that the officer’s purpose in trying to determine

what had happened was “arbitrary, capricious, or harassing.”

Therefore, because Johnson was a parolee, subject to CPC

§ 3067(b)(3), and under the Fourth Amendment he had a

reduced expectation of privacy, we affirm the district court’s

finding that the search of Johnson’s cell phone did not

violate his Fourth Amendment rights.

B

Independent of the warrantless searches of his cell

phone, Johnson alleges that his Fourth Amendment rights

were violated because the cell phone searches conducted on

February 5, 2014, and February 2, 2015, unconstitutionally

prolonged the seizure of his phone. “An unreasonable delay

between the seizure of a package and obtaining a search

warrant may violate [a] defendant’s Fourth Amendment

rights.” Sullivan, 797 F.3d at 633. “The touchstone is

reasonableness.” Id.

We hold the delays in searching Johnson’s phone were

not unreasonable. Johnson had reduced privacy interests in

16 UNITED STATES V. JOHNSON

his phone given his parolee status, and Johnson never sought

return of his phone while he was in continuous custody since

he was arrested on February 2, 2014. See id. at 633–34

(holding that a 21-day delay before the search of a parolee’s

laptop was reasonable). The government obtained the phone

lawfully, and there is no evidence the delays were the result

of dilatory tactics by the state. See United States v. Mulder,

889 F.2d 239, 241 (9th Cir. 1989) (finding a one-year delay

reasonable, where the defendant’s pills were not obtained

“as the result of an unlawful search,” the defendant “never

made a motion for the return of the pills,” and “the time lapse

was the result of the judicial appeal process rather than any

dilatory tactics”); see also United States v. Burnette,

698 F.2d 1038, 1049 (9th Cir. 1983) (“[O]nce an item . . .

has been lawfully seized and searched, subsequent searches

of that item, so long as it remains in the legitimate

uninterrupted possession of the police, may be conducted

without a warrant.”). Furthermore, the initial three-day

delay occurred because SFPD’s multimedia unit was

unsuccessful in attempting to download the contents of the

phone, which was too new for the unit’s imaging software.

And the February 2, 2015, search was conducted under

authority of a search warrant for which there was ample

probable cause. Under the totality of the circumstances, the

delays were reasonable and did not render the searches

“arbitrary, capricious, or harassing.” See Reyes, 968 P.2d at

450.

IV

Johnson next argues that the district court erred in

finding (1) that McAlpine gave valid consent to the search

of her apartment, or (2) in the alternative, that the responding

officers conducted a lawful parole search. Accordingly, he

argues that the handgun discovered during the search of

UNITED STATES V. JOHNSON 17

McAlpine’s residence should have been suppressed. The

factual findings of the district court resolve the issue.

Despite the conflicting testimony of the witnesses reflected

in the record, we hold that the district court did not clearly

err in finding that McAlpine gave valid verbal consent for

the search because the district court credited the officers’

testimony and not that of the defense witnesses.

We review a district court’s factual determination of

valid consent to a search for clear error. United States v.

Washington, 490 F.3d 765, 769 (9th Cir. 2007). The

government bears “the burden of proving that the consent

was, in fact, freely and voluntarily given.” Bumper v. North

Carolina, 391 U.S. 543, 548 (1968). “Whether consent to

search was voluntarily given or not is ‘to be determined from

the totality of all the circumstances.’” United States v. Chan-

Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997) (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)). We

consider five factors to assess whether consent was

voluntary:

(1) whether defendant was in custody; (2)

whether the arresting officers have their guns

drawn; (3) whether Miranda warnings have

been given; (4) whether the defendant was

told he has a right not to consent; and

(5) whether defendant was told a search

warrant could be obtained.

United States v. Russell, 664 F.3d 1279, 1281 (9th Cir. 2012)

(quoting United States v. Morning, 64 F.3d 531, 533 (9th

Cir. 1995)). The rule is that failing to object to police entry,

when no request for permission to enter was made, does not

constitute effective consent. United States v. Shaibu,

920 F.2d 1423, 1428 (9th Cir. 1990).

18 UNITED STATES V. JOHNSON

Here, it is undisputed that McAlpine was not in custody

when she was questioned, and officers did not have their

weapons drawn. No Miranda warnings were given, but “[i]t

would . . . make little sense to require that Miranda warnings

. . . be given by police before requesting consent.” Russell,

664 F.3d at 1281 (quoting United States v. Vongxay,

594 F.3d 1111, 1120 (9th Cir. 2010)). Nothing in the record

establishes that McAlpine was told she had a right not to

consent, so the fourth factor weighs in Johnson’s favor.

There is no evidence that McAlpine was told that a search

warrant could be obtained, so as to imply that her refusal to

consent would be fruitless, though she said she knew

Johnson was subject to a warrantless search condition

because he was on parole. The Russell factors, therefore,

weigh in favor of upholding the district court’s finding that

McAlpine’s consent was freely given.

Johnson argues the record establishes that the search of

McAlpine’s residence was conducted as a parole search, and

the government has tried post hoc to justify the warrantless

search as a consent search. He relies on McAlpine’s

testimony that one of the officers told her they would

conduct a parole search, and therefore she felt she “had no

other choice” but to allow the officers entry. He also points

to the testimony of Officers Vannuchi, Ortiz, Basurto,

Plantinga, and Cader, who all testified they understood they

were conducting a parole search. Johnson further asserts that

McAlpine could not give valid consent because she felt

pressured by the number of officers present, and she was

threatened with having her public housing taken away.

Johnson also contends that racial dynamics played a role.

Although there is evidence to support Johnson’s

contention that later-arriving officers believed they were

conducting a parole search, the officers who first

UNITED STATES V. JOHNSON 19

interviewed McAlpine—Wise and Cader—testified

otherwise. They both said that they asked McAlpine if she

would permit officers to check the apartment to make sure

no one was hurt and to secure any weapon, and she agreed.

Wise’s incident report reflects this account. Wise also

testified that he did not hear any officer tell McAlpine that

they were conducting a parole search. Sergeant Plantinga

testified he thought it was both a parole search and a consent

search. Regarding the alleged threat to McAlpine’s

continued public housing eligibility, the district court

credited evidence that McAlpine became upset about losing

her housing after the gun was discovered, not before the

search occurred. Prior to that development, officers testified

that relations with McAlpine were cordial and polite when

she gave consent.

Given this conflicting testimony and the district court’s

conclusion that the officers testified more credibly, we hold

that the district court did not clearly err in finding McAlpine

gave valid verbal consent for the search. 7 The record does

not compel the conclusion that McAlpine could not validly

consent because the officers told her they were conducting a

parole search. Even if later-arriving officers assumed they

were conducting a parole search, the record supports the

court’s factual finding that McAlpine first verbally

consented to the search after Wise and Cader asked if they

could enter the residence to ensure that everyone inside was

safe.

7

The district court properly concluded that McAlpine’s written

consent, provided after the search had already occurred, did not

retroactively establish valid consent. United States v. Howard, 828 F.2d

552, 556 (9th Cir. 1987). It is, however, corroborative of the officers’

testimony that she had earlier consented orally to the search.

20 UNITED STATES V. JOHNSON

V

Johnson also challenges the admission of testimony at

trial from Sergeant Jonas about McAlpine’s out-of-court

statements to Plantinga in a recorded interview. Jonas

testified, “[McAlpine] said there was only one person [the

gun] could belong to, and that was Valentino Johnson.”

Johnson contends that Jonas’s testimony was hearsay and

violated Johnson’s Confrontation Clause rights. But

Johnson’s defense theory offered to the jury was that the gun

belonged to his cousin, Jakieth Martin. Given the

government’s need to rebut Johnson’s third-party culpability

defense, we hold that McAlpine’s statements were not

hearsay and did not violate his constitutional rights. See

Tennessee v. Street, 471 U.S. 409, 414 (1985) (permitting

evidence as nonhearsay when used to rebut the defense

theory).

We review the interpretation of the rule against hearsay

de novo, United States v. Mitchell, 502 F.3d 931, 964 (9th

Cir. 2007), and the admission of evidence under a hearsay

exception for abuse of discretion, United States v. Molina,

596 F.3d 1166, 1168 (9th Cir. 2010). Generally, we review

whether the admission of evidence violated the

Confrontation Clause de novo, but if the defendant failed to

raise a Confrontation Clause objection at trial, we review for

plain error. United States v. Matus-Zayas, 655 F.3d 1092,

1098 (9th Cir. 2011).

Hearsay is an out-of-court statement offered for the truth

of the matter asserted. Fed. R. Evid. 801(c). The

Confrontation Clause forbids “admission of testimonial

statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” Crawford v.

Washington, 541 U.S. 36, 53–54 (2004). “Crawford applies

UNITED STATES V. JOHNSON 21

only to testimonial hearsay, and ‘does not bar the use of

testimonial statements for purposes other than establishing

the truth of the matter asserted.’” United States v.

Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2013) (quoting

Crawford, 541 U.S. at 59).

Here, McAlpine’s statements to Sergeant Plantinga were

clearly testimonial, because they were “[s]tatements taken

by [a] police officer[] in the course of interrogations.” See

Crawford, 541 U.S. at 52. Furthermore, although McAlpine

testified at the suppression hearing, she did not testify at trial

and the government did not show that she was unavailable.

Whether McAlpine’s out-of-court statements were hearsay

and violated the Confrontation Clause thus hinges on

whether the statements were admitted for a legitimate

nonhearsay purpose. The government asserts that

McAlpine’s statements were not offered for their truth, but

to explain why the government focused its investigation on

Johnson rather than Jakieth Martin. The government

contends this was relevant to rebutting Johnson’s suggestion

that the gun belonged to Martin, and that SFPD’s failure to

investigate Martin was sloppy police work.

Courts must exercise caution to ensure that out-of-court

testimonial statements, ostensibly offered to explain the

course of a police investigation, are not used as an end-run

around Crawford and hearsay rules, particularly when those

statements directly inculpate the defendant. See, e.g., United

States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004)

(“Allowing agents to narrate the course of their

investigations, and thus spread before juries damning

information that is not subject to cross-examination, would

go far toward abrogating the defendant’s rights under the

sixth amendment and the hearsay rule.”). We previously

have rejected the government’s proffered nonhearsay

22 UNITED STATES V. JOHNSON

rationale when, for example, explaining that the course of

the police investigation was not relevant to the government’s

case. See, e.g., United States v. Dean, 980 F.2d 1286 (9th

Cir. 1992); United States v. Makhlouta, 790 F.2d 1400 (9th

Cir. 1986). In these cases, we determined the out-of-court

statements were inadmissible because they were not relevant

to prove anything other than their truth. But here,

McAlpine’s statements were relevant to rebutting Johnson’s

theory of the case: to rebut Johnson’s claim that the police

were sloppy and had no reason to investigate Johnson’s

property, rather than investigate Jakieth Martin’s.

To ensure further that McAlpine’s out-of-court

statements would not be considered for their truth, the

district court properly and contemporaneously instructed the

jury that the statements were to be considered only for

nonhearsay purposes. The jury was again reminded of this

admonition in the final jury instructions. And the

prosecution made no reference to McAlpine’s statements

during closing arguments. Cf. Ocampo v. Vail, 649 F.3d

1098, 1112–13 (9th Cir. 2011) (finding that the

prosecution’s reliance on out-of-court statements during

closing arguments indicated that the statements were

intended for a hearsay purpose). The district court therefore

did not abuse its discretion in admitting Jonas’s testimony

for a legitimate nonhearsay purpose.

But even if Jonas’s testimony was inadmissible hearsay,

we find that any error was harmless and did not affect

Johnson’s substantial rights. See United States v. Blandin,

435 F.3d 1191, 1195 (9th Cir. 2006). Setting aside

McAlpine’s statements, the government presented

compelling additional evidence to link Johnson to the gun,

including the text messages on Johnson’s phone, the

UNITED STATES V. JOHNSON 23

evidence from the prior armed burglary, and ballistics

evidence.

VI

Finally, Johnson appeals the denial of his Daubert

motion to exclude expert testimony from an SFPD firearms

examiner, Mark Proia, as well as a written ballistics analysis

produced by the SFPD firearms unit. 8 This evidence linked

a test bullet fired from the PT-92 Taurus found at the San

Francisco residence to a live round recovered from the scene

of a burglary to which Johnson’s brother pled guilty in 2011.

Proia’s testimony and the written report relied on the

Association of Firearm and Toolmark Examiners (“AFTE”)

methodology, which involves making feature-comparisons

of bullet markings (“striations”) to determine if different

bullets were fired from the same gun. 9 Johnson argues that

Proia misapplied the AFTE methodology and that the

methodology is inherently unreliable under the Daubert

factors. 10 We review the district court’s admission of expert

8

The government initially planned to offer expert testimony through

Tasha Smith, an SFPD firearms examiner trainee who authored the

ballistics report under Proia’s supervision. Johnson’s Daubert motion

thus focused on Smith’s planned testimony, even though Proia ultimately

testified at trial.

9

Specifically, the AFTE methodology involves identifying three

types of toolmarks: (1) class characteristics, which are features shared

by many weapons of the same type; (2) individual characteristics, which

are unique to a particular weapon; and (3) subclass characteristics, which

may be common to a small group of firearms manufactured at the same

time. United States v. Monteiro, 407 F. Supp. 2d 351, 360–61 (D. Mass.

2006) (describing the methodology in detail).

10

These factors are: (1) whether the method has been tested;

(2) whether the method “has been subjected to peer review and

24 UNITED STATES V. JOHNSON

testimony for abuse of discretion. United States v. Cazares,

788 F.3d 956, 975–76 (9th Cir. 2015).

First, Johnson contends that Proia misapplied the AFTE

methodology, because Proia testified that the test-fired bullet

matched a bullet recovered from the 2011 crime scene “to a

reasonable degree of ballistics certainty,” and because the

written report in no way qualified its conclusion that the two

bullets matched. He points out that the National Academy

of Sciences has sharply criticized the AFTE methodology for

failing to incorporate standardized protocols and for over-

reliance on the subjective judgments of examiners. Indeed,

in light of these flaws in the AFTE methodology, a number

of district courts have required that experts clarify that

bullets can be matched only to a “reasonable degree of

ballistics certainty”—disallowing experts from presenting

their conclusions with absolute certainty. See, e.g., United

States v. Cerna, No. CR 08-0730 WHA, 2010 WL 3448528,

at *4 (N.D. Cal. Sept. 1, 2010); United States v. Diaz, No.

CR 05-00167 WHA, 2007 WL 485967, at *11 (N.D. Cal.

Feb. 12, 2007); Monteiro, 407 F. Supp. 2d at 372; United

States v. Green, 405 F. Supp. 2d 104, 124 (D. Mass. 2005). 11

This qualification is meant to ensure that juries are not

publication;” (3) “the known or potential rate of error;” (4) whether there

are “standards controlling the technique’s operation;” and (5) the general

acceptance of the method within the relevant community. Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 592–95 (1993). “[W]hether

these specific factors are ‘reasonable measures of reliability in a

particular case is a matter that the law grants the trial judge broad latitude

to determine.’” Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457,

463 (9th Cir. 2014) (quoting Kumho Tire Co. v. Carmichael, 526 U.S.

137, 150 (1999)).

11

At least one court did not even take this precaution. United States

v. Casey, 928 F. Supp. 2d 397, 400 (D.P.R. 2013) (“[The witness] may

testify accordingly without qualification of his degree of certainty.”).

UNITED STATES V. JOHNSON 25

misled about the reliability of ballistics evidence. Johnson

points to only one case in which a “reasonable degree of

ballistics certainty” was determined to be too misleading.

United States v. Glynn, 578 F. Supp. 2d 567, 574–75

(S.D.N.Y. 2008) (allowing the expert to testify it was “more

likely than not” that bullets matched).

Here, although the written report did not qualify its test

results, Proia’s testimony made clear he could conclude only

that the test-fired bullet matched the bullet from the 2011

crime scene to a “reasonable degree of ballistics certainty.”

Proia also clarified in his live testimony that the written

report’s conclusions were not absolutely certain.

Additionally, Johnson was allowed to cross-examine Proia

on the more precise meaning of “reasonable degree of

ballistics certainty,” and to present his own ballistics expert

witness. The district court therefore provided adequate

safeguards to allow the jury properly to evaluate the

probative value of Proia’s opinion testimony and the written

report.

Second, Johnson contends that the AFTE is inherently

unreliable and fails to satisfy the Daubert factors. The

district court cited a number of cases and scientific sources

establishing that that the AFTE methodology satisfies

Daubert. Conversely, Johnson has not cited a case in which

AFTE ballistics testimony was excluded altogether.

Because the district court has “broad latitude” to make

admissibility determinations, Estate of Barabin, 740 F.3d at

463, we hold that the district court did not abuse its

discretion in denying Johnson’s Daubert motion.

VII

The government cross-appeals the district court’s

determination at sentencing that Johnson’s prior armed

26 UNITED STATES V. JOHNSON

robbery conviction under CPC § 211(a) does not qualify as

a “crime of violence” within the meaning of U.S.S.G.

§§ 2K2.1 and 4B1.2. Because the district court held that

Johnson’s prior armed robbery conviction was not a crime

of violence, it adopted the base offense level assuming that

Johnson had only one prior conviction for a crime of a

violence rather than two. As a result, Johnson’s base offense

level was 20 rather than 24. Compare U.S.S.G.

§ 2K2.1(a)(2), with U.S.S.G. § 2K2.1(a)(4)(A).

We recently addressed this issue in United States v.

Barragan, holding unequivocally that a prior California

robbery conviction is categorically a “crime of violence” for

purposes of the career offender sentencing provision.

871 F.3d 689, 714 (9th Cir. 2017); see also United States v.

Chavez-Cuevas, 862 F.3d 729, 740 (9th Cir. 2017)

(affirming a district court’s reliance on United States v.

Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), in classifying

CPC § 211 as a “crime of violence”). Therefore, we vacate

Johnson’s sentence and remand to the district court for

resentencing with instructions to treat Johnson’s CPC

§ 211(a) conviction as a crime of violence in determining the

applicable base offense level.

VIII

We AFFIRM the district court’s ruling on each of the

issues raised in Johnson’s direct appeal; VACATE

Johnson’s sentence; and REMAND for resentencing on a

properly calculated total offense score.