United States v. Damien Norris ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10431
Plaintiff-Appellee, D.C. No.
2:17-cr-00124-JAD-EJY-3
v.
DAMIEN NORRIS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted December 9, 2020**
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and SESSIONS,*** District
Judge.
*
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 William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
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Damien Norris appeals from a judgment after jury trial, in which the jury
found him guilty of distribution of a controlled substance and acquitted him of
conspiracy to distribute a controlled substance. During trial, the government called
witness Kary Watson to the stand, granted him immunity, and asked him to testify
despite knowing that Watson would attempt to invoke the Fifth Amendment.
Watson then repeatedly attempted to invoke the Fifth Amendment and refused to
testify in front of the jury, even after the district court informed him multiple times
that, once granted immunity, he had no Fifth Amendment privilege to assert.
Norris argues that the district court erred when it allowed the government to call a
witness “for the sole purpose of displaying to the jury his invocation of his Fifth
Amendment right to remain silent.” We have jurisdiction under 28 U.S.C. § 1291.
We affirm.
Though Norris argues that the jury was not entitled to hear Watson invoke
the Fifth Amendment, Norris did not address whether the invocation was valid. It
was not. Where a witness is granted sufficient immunity by the government, the
witness may not refuse to testify on the basis of the Fifth Amendment. See, e.g.,
Kastigar v. United States, 406 U.S. 441, 448 (1972) (declining to reconsider
decisions upholding the constitutionality of immunity statutes); Ullmann v. United
States, 350 U.S. 422, 438–39 (1956) (explaining that the danger “to a witness
forced to give testimony leading to the infliction of penalties affixed to the
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criminal acts” is displaced by immunity, and “[o]nce the reason for a privilege
ceases, the privilege ceases.”) (internal quotation marks omitted).
Here, Watson was given immunity and thus did not have a Fifth Amendment
privilege to invoke. During trial, the district court instructed Watson three times in
front of the jury that he could no longer assert the privilege because he had been
given immunity by the government. The danger of a witness’s invocation of the
Fifth Amendment having a disproportionate impact on the jury’s deliberations is
not high where, as in this case, the district court explained that there was no
privilege to invoke.
Even if this were not true, we would not reverse. Where evidentiary rulings
are objected to at the district court, they are reviewed under the abuse of discretion
standard. United States v. Orm Hieng, 679 F.3d 1131, 1135 (9th Cir. 2012).
Nonconsitutional evidentiary rulings are reversed only where they “more likely
than not affected the verdict.” United States v. Reyes, 660 F.3d 454, 463 (9th Cir.
2011) (quoting United States v. Tran, 568 F.3d 1156, 1162 (9th Cir. 2009)); see
also Barnett v. Norman, 782 F.3d 417, 421–22 (9th Cir. 2015) (“Evidentiary error
will not result in reversal absent prejudice.”). Norris argues that the prejudice to his
case “cannot be overstated.” In light of the acquittal on the conspiracy count, we
disagree. The jury heard Watson refuse to testify, as well as wire-tapped phone
conversations between Watson and Norris. The jury nonetheless acquitted Norris
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of conspiracy, thus minimizing any potential prejudice arising out of Watson’s
efforts to assert his Fifth Amendment rights. The substantive distribution count, of
which the jury found Norris guilty, was supported by overwhelming evidence,
including airplane surveillance of, and a different witness’s testimony about, a
separate controlled buy. Because Norris’s conviction on the distribution count did
not depend on Watson, we find no prejudice.
AFFIRMED.
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