NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10425
Plaintiff-Appellee, D.C. No. 3:17-cr-0003-LRH-WGC
v.
RICKY CARTER, JR., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted December 18, 2018
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and BLOCK,** District Judge.
Ricky Carter, Jr., appeals the district court’s judgment convicting him of
being a felon in possession of a firearm and sentencing him principally to 120
months’ imprisonment. We assume familiarity with the facts, procedural history,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
and issues on appeal. We affirm.
1. Carter’s conviction moots his claim that the district court’s decision to
have him restrained in the courtroom violated due process, except insofar as he
claims that the decision prejudiced the jury. United States v. Sanchez-Gomez, 138
S. Ct. 1532, 1542 (2018). That claim fails because there is no evidence that the
district court’s efforts to prevent the jury from seeing the restraints were
unsuccessful. Cox v. Ayers, 613 F.3d 883, 890 (9th Cir. 2010).
2. None of the five alleged instances of prosecutorial misconduct during
trial satisfies the standards for reversal on review for plain error. United States v.
Alcantara-Castillo, 788 F.3d 1186, 1190–91 (9th Cir. 2015). Officer Schaur’s
testimony that Carter provided his phone number during a booking interview did
not affect Carter’s substantial rights because the government also connected Carter
to the phone number by multiple other means. Arguing that Lessman had no
motive to lie did not constitute improper vouching, and acknowledging other
problems with her credibility did not mean that the government was knowingly
eliciting false testimony. Attacking the strength of Carter’s theory of defense was
proper, and asking Carter why he did not provide text messages corroborating his
theory did not improperly shift the burden of proof.
3. The affidavit supporting the search warrant application included
evidence that Carter was involved in the shooting of Julian Hamilton, and that
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André Wagner—who was arrested in connection with the shooting—had spoken to
Carter by phone from jail, telling him to advise another person involved to flee.
That evidence was sufficient to create a “fair probability” that the phones found on
Carter’s person and in his car at the time of his arrest would contain evidence of
other communications regarding the shooting. United States v. Flores, 802 F.3d
1028, 1043 (9th Cir. 2015) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
The district court was not required to hold a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), before denying the motion to suppress. Although
an earlier police report noted only that Wagner spoke about the shooting to an
“unidentified male,” the affidavit identified Carter as that interlocutor. Carter does
not dispute that he was the person on the call, and so fails to make a “substantial
preliminary showing” that that statement in the affidavit was false, let alone that
the alleged falsity was intentional or reckless. United States v. Meling, 47 F.3d
1546, 1553 (9th Cir. 1995). We agree with the district court that the remaining
misstatements and omissions claimed by Carter were not material to the probable-
cause analysis. See id.
AFFIRMED.
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