FILED
NOT FOR PUBLICATION MAY 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10179
Plaintiff - Appellee, D.C. No. 3:12-cr-00499-CRB-1
v.
MEMORANDUM*
CHANGA LAKE,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Submitted May 13, 2015**
San Francisco, California
Before: O’SCANNLAIN, IKUTA, and N.R. SMITH, Circuit Judges.
Changa Lake appeals his jury conviction for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Lake argues the district court erred
in (1) failing to allow him to argue lack of fingerprint evidence at closing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
argument, (2) failing to suppress evidence, (3) failing to read back the entire
testimony of a witness, and (4) failing to find a violation of his right to a speedy
trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district
court.
1. We review the district court’s decision to limit Lake’s closing argument
regarding fingerprint evidence for an abuse of discretion, United States v.
Lazarenko, 564 F.3d 1026, 1043 (9th Cir. 2009), although the issue of whether this
limitation violated Lake’s Sixth Amendment right to counsel is reviewed de novo.
United States v. Doe, 705 F.3d 1134, 1149 (9th Cir. 2013). While a “complete
denial of summation violates the [Sixth Amendment] Assistance of Counsel
Clause,” Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (emphasis added), trial courts
have “broad discretion” in “controlling the duration and scope of closing
summations.” Herring v. New York, 422 U.S. 853, 862 (1975). Such discretion
includes the power to ensure that closing arguments do “not stray unduly from the
mark.” Id.
When the Government seized the handgun, it chose to test the handgun for
DNA rather than fingerprints. According to the Government, DNA results would
be returned faster and would be more accurate and conclusive. Although the
Government obtained relevant and probative DNA results from the handgun, Lake
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successfully moved the district court to exclude the forensic DNA evidence as
untimely disclosed (the Government indicated that budget constraints forced it to
wait until a trial date was set before requesting DNA testing). It was not an abuse
of discretion for the district court to then preclude Lake from arguing lack of
fingerprint evidence at closing argument. Lake’s constitutional right to present a
defense did not include the right to affirmatively misrepresent or falsely imply that
the police had found no forensic evidence connecting him to the gun.
2. We review the lawfulness of a search and seizure and a district court’s denial
of a motion to suppress de novo. See United States v. Mayer, 560 F.3d 948, 956
(9th Cir. 2009); United States v. Deemer, 354 F.3d 1130, 1132 (9th Cir. 2004).
Findings of fact underlying the district court’s determination are reviewed for clear
error. See Deemer, 354 F.3d at 1132. A district court’s refusal to hold an
evidentiary hearing on a motion to suppress is reviewed for an abuse of discretion.
United States v. Quoc Viet Hoang, 486 F.3d 1156, 1163 (9th Cir. 2007). It was not
clearly erroneous for the district court to find that Officer Tedesco was lawfully
present near Lake’s vehicle, and that with his flashlight, Tedesco was able to see
the handgun in plain view. Therefore, it was not a search. United States v. Dunn,
480 U.S. 294, 305 (1987) (“[I]t is beyond dispute that the action of a police officer
in shining his flashlight to illuminate the interior of a car, without probable cause
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to search the car, trenched upon no right secured by the Fourth Amendment.”)
(internal quotation marks and alteration omitted). Because the incriminating nature
of the gun was immediate, the seizure of the semi-automatic handgun was lawful
under the plain view exception to the warrant requirement. See Texas v. Brown,
460 U.S. 730, 739 (1983) (plurality opinion); United States v. Hall, 974 F.2d 1201,
1204 (9th Cir. 1992). Additionally, the district court did not abuse its discretion in
failing to hold an evidentiary hearing prior to making its decision, because there
were no contested issues of fact. See United States v. Howell, 231 F.3d 615, 620
(9th Cir. 2000) (holding that an evidentiary hearing is required “only when [the
defendant] allege[s] facts with sufficient definiteness, clarity, and specificity to
enable the trial court to conclude that contested issues of fact exist”). Lynette
Maynard’s declaration did not create a contested issue of fact. It stated only that
she had seen the window tint and “believe[d]” the floorboard could not be viewed
through it with a flashlight, while Officer Tedesco stated that he actually used his
flashlight to look through the windows, and that he had used the same flashlight to
look through excessively tinted windows many times and had never been unable to
see through them.
3. We review the district court’s decision to honor a request to replay or reread
witness testimony “for the jury’s benefit after deliberation has begun” for an abuse
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of discretion. United States v. Sandoval, 990 F.2d 481, 486 (9th Cir. 1993)
(quoting United States v. Birges, 723 F.2d 666, 671 (9th Cir. 1984)). Prior to the
readback, the district court properly admonished the jurors that they should not
give the readback undue weight or influence. See United States v. Newhoff, 627
F.3d 1163, 1168 (9th Cir. 2010). The court instructed the jury to give full
consideration to all of the evidence and testimony presented, and the length of the
testimony made it impractical to read the testimony in its entirely. See id.
Therefore, the district court did not commit a clear error in judgment when
deciding to allow a partial readback of Officer Tedesco’s testimony. See United
States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir.1994) (“Under the abuse of
discretion standard, we will not reverse unless we have a definite and firm
conviction that the district court committed a clear error in judgment.”).
4. We review de novo the district court’s denial of Lake’s motion to dismiss,
on the ground that the Government violated his Sixth Amendment right to a speedy
trial. United States v. Gregory, 322 F.3d 1157, 1160 (9th Cir. 2003). However,
the district court’s factual determinations underlying the claim are reviewed for
clear error. Id. The district court fully evaluated both the pre-indictment and post-
indictment delays. Relevant to this claim, the district court found the following
facts: (1) the Government waited to indict Lake on the federal gun charges,
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because it did not want to potentially compromise its larger Burnout Family Mafia
investigation; (2) it is not uncommon for an investigation in one matter to delay or
affect an indictment in another; (3) the Government searched for Mr. Lake, but he
was not found; (4) the Government did not have anything to do with the
availability of the vehicle as evidence at trial, because the Government did not
have control over the vehicle and did not cause the sale of the vehicle; and (5) all
delays post-indictment were caused by the defendant or on behalf of the defendant.
The district court’s factual findings are supported by the record and not clearly
erroneous. Among other reasons for delay, the record indicates that Lake moved to
Washington state after his indictment and before his arrest without notifying his
probation officer. After evaluating the “[l]ength of delay, the reason for the delay,
[Lake’s] assertion of his right, and prejudice to [Lake],” and deferring to the
district court’s factual findings, we find Lake’s Sixth Amendment speedy trial right
was not violated. See Barker v. Wingo, 407 U.S. 514, 530-33 (1972).
AFFIRMED.
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