NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10449
Plaintiff-Appellee, D.C. No.
2:16-cr-00279-JAD-PAL-1
v.
JOSHUA SADAT WASHINGTON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted August 10, 2020**
San Francisco, California
Before: CHRISTEN and OWENS, Circuit Judges, and BATAILLON,*** District
Judge.
Joshua Washington appeals from his convictions and sentence for Hobbs
Act robbery under 18 U.S.C. § 1951 and brandishing a firearm during a crime of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
violence under 18 U.S.C. § 924(c). We have jurisdiction under 28 U.S.C. § 1291.
As the parties are familiar with the facts, we do not recount them here. We affirm.1
1. Washington appeals from the district court’s denial of his “Motion
Requesting a Judgment Notwithstanding the Verdict—for a New Trial,” which the
district court construed as a motion for a judgment of acquittal and for a new trial
under Fed. R. Civ. P. 29 and 33. We review a district court’s ruling on a motion
for a new trial for abuse of discretion. Flores v. City of Westminster, 873 F.3d 739,
755–56 (9th Cir. 2017).
The district court did not abuse its discretion when it denied Washington’s
motion because he presented no facts that justified suppressing the evidence
against him. Searches by a private individual are not subject to constitutional
restrictions. United States v. Jacobsen, 466 U.S. 109, 113 (1984). While the
Fourth Amendment does apply if the government knows of and acquiesces to a
search and the private individual performs the search to assist law enforcement,
United States v. Reed, 15 F.3d 928, 930–31 (9th Cir. 1994), Washington did not
meet his burden of showing that the evidence established the government executed
this search.
Although a UPS employee in Las Vegas testified that law enforcement asked
1
On August 5, 2020, we received Washington’s pro se motion (Dkt.
No. 65). Because Washington is represented by counsel, only counsel may file
motions, and this court therefore declines to entertain the submission.
2 18-10449
her about the package a day before the search, this testimony was contradicted by
“overwhelming, credible evidence” at the suppression hearing and at trial, which
showed that Washington’s involvement in the robbery became known to law
enforcement only after UPS independently searched the package. The district
court did not abuse its discretion when it credited this overwhelming evidence over
the word of one witness. See OTR Wheel Eng’g, Inc. v. W. Worldwide Servs., Inc.,
897 F.3d 1008, 1015 (9th Cir. 2018) (“[C]redibility of the witnesses and the weight
of the evidence are issues for the jury and are generally not subject to appellate
review.”).
Washington points to inconsistent testimony regarding law enforcement’s
search of his storage locker as proof that law enforcement knew about the package
before UPS searched it. However, the record shows that law enforcement did not
contact the storage facility until after UPS searched the package. None of the
testimony at trial indicated otherwise. While one witness may have offered
inconsistent testimony about exactly when and how the facility cooperated with
law enforcement, even that inconsistent testimony did not rebut the district court’s
prior finding that UPS searched the package in Miami without law enforcement’s
knowledge or participation.
2. 18 U.S.C. § 924(c) imposes heightened criminal penalties for
brandishing a firearm “during and in relation to any crime of violence.” 18 U.S.C.
3 18-10449
§ 924(c)(1)(A). Washington argues that § 924(c) does not apply because Hobbs
Act robbery does not categorically qualify as a crime of violence. We review de
novo. United States v. Dominguez, 954 F.3d 1251, 1256 (9th Cir. 2020).
After Washington filed his appeal, we decided Dominguez, which held that
Hobbs Act robbery remains a crime of violence under § 924(c). Id. at 1260–61.
This panel is bound by Dominguez, and therefore Washington’s challenge to his
conviction fails.
AFFIRMED.
4 18-10449