United States v. Cody Dobbs , 357 F. App'x 767 ( 2009 )

FILED
NOT FOR PUBLICATION NOV 17 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10239
Plaintiff - Appellee, D.C. No. CR 06-00711-SI
v.
MEMORANDUM *
CODY DOBBS,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted November 5, 2009
San Francisco, California
Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.
Defendant Cody Dobbs appeals his convictions on two counts of
manufacture and possession with intent to distribute marijuana, in violation of 21
U.S.C. § 841(a)(1), and two conspiracy counts, in violation of 21 U.S.C. § 846.
We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Reviewing de novo, United States v. Davis, 530 F.3d 1069, 1077 (9th
Cir. 2008), we hold that the district court correctly denied Defendant’s motion to
suppress because the investigating agents did not enter the curtilage of the 80-acre
property at 4589 Crooked Prairie Road. None of the four factors described by the
Supreme Court in United States v. Dunn, 480 U.S. 294, 300-01 (1987), weighs in
favor of a finding that the agents entered the curtilage.
First, the agents stood 75 yards from the residence. See id. at 302 (holding
that a distance of 60 yards from the residence on a 198-acre property was a
"substantial distance [that] supports no inference" that the agents were within the
curtilage); Davis, 530 F.3d at 1078 (holding that a distance of 60 yards from the
residence on a rural property was not within the curtilage). Second, the agents
stood on the driveway, "a distinct portion of [the property], quite separate from the
residence," Dunn, 480 U.S. at 302, and never entered the clearing surrounding the
residence. "Even if we accepted that the [clearing] itself was part of the curtilage,
all of [the agents’] observations were made from the area outside the [clearing]."
Davis, 530 F.3d at 1078. Third, there is no indication that this portion of the
driveway—75 yards from the residence—was used for any intimate activities
associated with the home. See United States v. Roberts, 747 F.2d 537, 541-42 (9th
Cir. 1984) (holding that a shared private road was not within the curtilage, in part
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because "[t]he activities conducted on a road . . . are impersonal, public activities").
As in Davis, 530 F.3d at 1079, the agents here smelled marijuana (and saw
marijuana plants) while standing outside the clearing. "[A] marijuana growing
operation . . . is not an intimate activity of the home." Id. (internal quotation marks
omitted). Fourth, the remote, heavily wooded area with "no trespassing" signs
suggests some—but very few—steps taken to "protect the area from observation by
people passing by." Dunn, 480 U.S. at 301. As in Davis, 530 F.3d at 1079, we
conclude that, "at best, this factor is neutral."
2. Reviewing de novo, United States v. Napier, 436 F.3d 1133, 1136 (9th
Cir. 2006), we hold that the district court correctly declined to conduct a Franks
hearing concerning Defendant’s allegation that the search warrant for 3541 Osprey
Terrace contained "deliberate or reckless omissions of facts that tend to mislead,"
United States v. Stanert, 762 F.2d 775, 780-81 (9th Cir. 1985). There was no
evidence that "the affidavit contain[ed] intentionally or recklessly false
statements." Id. at 780 (internal quotation marks omitted). Furthermore, "the
affidavit purged of its falsities" would still support a finding of probable cause. Id.
(internal quotation marks omitted). Finally, we hold that the district court correctly
held that Tom Golden was a reliable source under Illinois v. Gates, 462 U.S. 213
(1983).
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3. The district court did not abuse its discretion when it limited cross-
examination of Eddie Shields. See United States v. Larson, 495 F.3d 1094, 1102
(9th Cir. 2007) (en banc) (holding that we review for abuse of discretion a district
court’s "limitation on the scope of cross-examination within an area of inquiry"),
cert. denied, 128 S. Ct. 1647 (2008). Because the jury had an extraordinary
amount of evidence with which to assess Shields’ credibility, the district court
acted within its discretion to exclude Shields’ speculation about merely potential,
discretionary reductions in his sentence. See id. at 1103 (holding that one factor is
"whether the exclusion of evidence left the jury with sufficient information to
assess the credibility of the witness" (brackets and internal quotation marks
omitted)); cf. id. at 1106 (holding that a district court permissibly can exclude
testimony about "[t]he potential maximum statutory sentence that a cooperating
witness might receive").
4. The district court did not abuse its discretion when it limited the
testimony of Defendant’s expert, Christopher Conrad. See United States v. W.R.
Grace, 504 F.3d 745, 759 (9th Cir. 2007) (stating standard of review), cert. denied,
128 S. Ct. 2964 (2008). The district court permissibly concluded that the proposed
area of questioning could confuse the jury. "An appellate court will not reengage
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in a balancing of the probative value and prejudicial effect." Id. at 760 (brackets
and internal quotation marks omitted).
5. The district court correctly denied sanctions for the government’s late
disclosure of the tape recording. See United States v. Alvarez, 86 F.3d 901, 905
(9th Cir. 1996) (holding that we review for abuse of discretion a district court’s
determination regarding whether a Jencks Act violation occurred); United States v.
Echeverry, 759 F.2d 1451, 1456 (9th Cir. 1985) (holding that we review for abuse
of discretion a district court’s determination regarding whether to impose sanctions
for a Jencks Act violation); United States v. Collins, 551 F.3d 914, 923 (9th Cir.
2009) (holding that we review de novo an alleged Brady violation). As in United
States v. Dupuy, 760 F.2d 1492, 1497 (9th Cir. 1985), the late disclosure did not
prejudice Defendant, and there is no evidence of bad faith. There also is no
"reasonable probability that, had the evidence been [timely] disclosed to the
defense, the result of the proceeding would have been different." United States v.
Bagley, 473 U.S. 667, 682 (1985).
AFFIRMED.
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