United States v. Wallace

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL GARY WALLACE, AKA Bill, AKA Doc, AKA Lil Doc, AKA Lil Doc Thone, AKA Still Bill, AKA Uncle Bill, Defendant-Appellant.

No. 22-50176

United States Court of Appeals, Ninth Circuit

July 2, 2024

NOT FOR PUBLICATION

Argued and Submitted April 12, 2024 Pasadena, California

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge Presiding D.C. No. 2:20-cr-00293-AB-1

Before: SILER, ^[**] GOULD, and BEA, Circuit Judges.

MEMORANDUM ^[*]

Paul Gary Wallace appeals his conviction and sentence for RICO conspiracy and using or carrying a firearm in relation to a crime of violence. He argues that the district court erred by failing to suppress evidence and admitting unqualified expert testimony and his admissions to prior murders. Both his conviction and sentence, he argues, must be vacated because the evidence was insufficient to support the verdict, and his sentence must be vacated because the district court improperly imposed a mandatory consecutive sentence and three conditions of supervised release. Finding no error, we affirm.

1. Wallace attacks his conviction on three grounds. First, he argues that the AK-47-pattern rifle police saw in his van could have been legal under California law and therefore could not have established probable cause for a search warrant. But this argument fails because he neglected to raise it before the district court, so it is therefore forfeited. Also, Wallace fails to wrestle with the fact that "assault weapons" are presumptively illegal in California except as specified under certain statutory provisions, Cal. Penal Code § 30605(a), and therefore officers had probable cause to suspect that the rifle was illegal pending further investigation. See e.g., United States v. Vandergroen, 964 F.3d 876, 881 (9th Cir. 2020). Although there were innocent explanations for the rifle, "probable cause does not require officers to rule out a suspect's innocent explanation for suspicious facts." District of Columbia v. Wesby, 583 U.S. 48, 61 (2018).

Second, Wallace argues that the district court erred regarding expert testimony; specifically, that allowing LAPD Officer Andres Fernandez to offer expert testimony on the structure and operations of Wallace's gang, the East Coast Crips ("ECC"), violated Wallace's rights under the Confrontation Clause; that allowing Daniel Rubin, an LAPD ballistics expert, to testify violated Daubert and Rule 702; and that the district court's failure to make express reliability findings requires reversal. None of these arguments has merit.

Wallace argues that Officer Fernandez's testimony was not based on his own investigations and analysis but was simply regurgitated information gleaned from prior gang member interviews. But while Fernandez's testimony relies on information obtained from other gang members, we have repeatedly affirmed the use of similar expert testimony to describe the structure, operation, and codes of conduct of criminal organizations. See United States v. Holguin, 51 F.4th 841, 856 (9th Cir. 2022) (collecting cases). Like our prior cases, Wallace fails to argue "that a gang investigator would not rely on the kind of information" Fernandez described. Id. Fernandez's testimony is similar, albeit not identical to that in United States v. Vera, 770 F.3d 1232, 1237 (9th Cir. 2014), and Holguin, both of which permitted the challenged expert testimony. See Holguin, 51 F.4th. at 857 ("The gatekeeping inquiry is always case-specific."). The testimony was properly admitted.

Next, Officer Rubin testified to his ballistics toolmark analysis which matched the casings fired at a murder scene to the rifle discovered in the rental van. Wallace argues that this methodology has never been subjected to peer review and is therefore inherently unreliable and inadmissible under Daubert. However, as the prosecution observes, "no federal court has categorically rejected toolmark analysis," and our precedent "squarely foreclose[s] that argument." See United States v. Johnson, 875 F.3d 1265, 1281 (9th Cir. 2017). In the end, Wallace cannot show that admitting any ballistics toolmark testimony was an abuse of discretion. His criticisms rely entirely on reports that predate our approval of ballistics toolmark analysis in Johnson.

Likewise, Wallace objects that Officer Rubin failed to characterize his findings as within a "reasonable degree of ballistics certainty," which the court failed to correct sua sponte. But this is an overly technical reading of our precedent in Johnson. 875 F.3d at 1280. That phrase was used simply because it was the one the expert used; our opinion did not mandate incantation of the phrase by every expert henceforth. Here, the expert chose simply to forgo suggesting any level of certainty. To the degree that Rubin stated categorically that the bullet casings came from the same gun, Wallace's failure to object at trial dooms his objection. The district court's Daubert gatekeeping role does not oblige it to "step in," as Wallace puts it, when a witness makes an improper statement without objection. There was no plain error.

The parties agree that the district court erred in failing to either hold a Daubert hearing on Rubin's testimony or make an explicit reliability finding. Holguin, 51 F.4th at 853-55. Nevertheless, this was harmless error because the "record supports the reliability of [the] expert testimony." Id. at 855. Rubin's conclusions were supported by other testimony, including Wallace's own repeated admissions that the rifle seized from the rental van was used in a murder, and Wallace did not avail himself of the opportunity to cross-examine Rubin.

Third, Wallace argues that evidence of his admissions of prior murders was unduly prejudicial under Rule 403. He essentially contends that, because his confessions would be insufficient standing alone to prove first degree murder of anyone beyond a reasonable doubt, they are irrelevant. But that is not how relevance works. If there is insufficient evidence-including the confessions-that Wallace murdered Brown, then that would be a challenge to the sufficiency of the evidence, not a Rule 403 challenge. Confessions to murder are highly relevant to a charge of murder, even if they are not dispositive. And although they are assuredly prejudicial, even "highly prejudicial" evidence is "not necessarily unfairly prejudicial." United States v. Thornhill, 940 F.3d 1114, 1123 (9th Cir. 2019) (internal quotation marks omitted). Reviewing for abuse of discretion, we find no error.

2. Wallace next claims that the jury never properly found that he had committed murder sufficient to justify his 300-month sentence on the RICO charge. That charge required the jury to find that "the violation is based on a...