United States v. Raheem Lee ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10012
Plaintiff-Appellee, D.C. No.
2:17-cr-00160-MCE-KJN-1
v.
RAHEEM D. LEE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted December 21, 2018
San Francisco, California
Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.
Raheem Lee appeals his misdemeanor conviction for driving a motor vehicle
on a military installation while his license was suspended for a DUI conviction, in
violation of California Vehicle Code section 14601.2(a), as assimilated by the
Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The central issue at trial was whether Lee knew his driver’s license was
suspended when he drove. The government introduced into evidence a DMV
driver record printout with a “verbal notice document on file” notation and a verbal
notice of action document bearing Lee’s signature.
The admission of the verbal notice of action document did not violate the
Confrontation Clause of the Sixth Amendment because the notice is not testimonial
under Crawford v. Washington, 541 U.S. 36, 68 (2004). The notice was not
created to aid a police investigation; indeed, no police investigation even existed
when the notice was created. See United States v. Berry, 683 F.3d 1015, 1023 (9th
Cir. 2012). In addition, although the DMV custodian of records testified that “part
of the purpose” of the notice was evidentiary, Lee did not establish that the notice
was created “solely for evidentiary purposes.” Id.In any event, even if the admission of the notice violated the Confrontation
Clause, the error was harmless beyond a reasonable doubt. See United States v.
Norwood, 603 F.3d 1063, 1068–69 (9th Cir. 2010). The magistrate judge
expressly relied on multiple other pieces of evidence to infer Lee’s knowledge of
the suspension, including the DMV driver record printout, an administrative per se
notice, an order of suspension letter, and circumstantial evidence such as Lee’s
statements to the citing officer. Although Lee and another witness testified that
there were mail theft issues at his apartment complex, the judge permissibly found
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Lee not credible as to his testimony that he never received the administrative per se
notice or order of suspension letter in the mail.
Lee also argues that the magistrate judge improperly assimilated a California
evidentiary rule under the ACA. We disagree. The judge found that there was a
“reasonable presumption” that Lee received the administrative per se notice and
order of suspension letter because they were placed in the mail and addressed to
him. Although the government proposed a California model jury instruction based
on California Vehicle Code section 14601.2(c) and People v. Roder, 658 P.2d
1302, 1305–13 (Cal. 1983), the judge expressly declined to rely on it. The judge
stated: “[R]egardless of whether there’s a California jury instruction, I know what
inferences I can draw with regard to things being placed in the mail . . .” Thus, the
judge relied on a standard evidentiary presumption recognized under our case law.
See, e.g., United States v. Perdue, 469 F.2d 1195, 1203 (9th Cir. 1972); United
States v. Lee, 458 F.2d 32, 33 (9th Cir. 1972) (per curiam).
Because the judge did not rely on state law to infer that Lee received the
mailed documents, there is no assimilation problem, and we need not decide
whether the California rule is substantive for purposes of the ACA.
AFFIRMED.
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