                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 27 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50411

              Plaintiff-Appellee,                D.C. No. 2:16-cr-00448-R-2

 v.
                                                 MEMORANDUM*
ARTEZ RICHARD BREWER,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                      Argued and Submitted August 13, 2019
                              Pasadena, California

Before: CALLAHAN, D.M. FISHER,** and CHRISTEN, Circuit Judges.

      Artez Richard Brewer appeals his convictions for conspiracy to commit

bank robbery and bank robbery, as well as his 126-month custodial sentence. We




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
have jurisdiction pursuant 28 U.S.C § 1291. We vacate Brewer’s conviction and

remand for further proceedings.

1.    “The Sixth Amendment guarantees a criminal defendant the right to a trial

by impartial jurors.” United States v. Brugnara, 856 F.3d 1198, 1211 (9th Cir.

2017). We have previously indicated that this right is violated where a sleeping

juror misses essential portions of the trial or is otherwise unable to fairly deliberate

on the defendant’s guilt. See United States v. Barrett, 703 F.2d 1076, 1083 n.13

(9th Cir. 1983).

      We review a district court’s handling of sleeping juror allegations for an

abuse of discretion. See id. at 1083. Here, when presented with an uncontroverted

assertion that a specific juror slept through the court’s instructions, the district

court did not make any responsive inquiry or finding. We give significant

deference to trial judges, but that deference does not extend to a wholesale failure

to investigate possibly serious allegations of juror misconduct. Id. We conclude

that the district court abused its discretion because it failed to ask any questions,

make any findings, rule on Brewer’s request to replace the allegedly sleeping juror

with an alternate, and/or failed to provide the jury with a written copy of the

instructions.




                                            2
      We also cannot say, on these facts, that Brewer was not prejudiced by the

district court’s failure to investigate. If a juror was asleep during the instructions,

there can be no doubt that he or she slept through an “essential portion[]” of the

case. Id. at 1083 n.13. Written instructions, which could have potentially cured

any prejudice caused by the allegedly sleeping juror, were not provided. Because

we cannot say the failure to inquire was harmless beyond a reasonable doubt in the

facts and circumstances of this case, we must vacate Brewer’s conviction and

remand for a new trial. See United States v. Kleinman, 880 F.3d 1020, 1034 (9th

Cir. 2017).

2.    Because we remand for a new trial, we also address Brewer’s Fourth

Amendment challenge to the fruits of certain GPS tracking evidence, as it is likely

to arise again in the district court.1 We assume without deciding that federal agents

and their local law enforcement counterparts violated the Fourth Amendment by

tracking Brewer’s vehicle outside of the State of Indiana, the only jurisdiction

authorized by the plain terms of the warrant. See United States v. Jones, 565 U.S.

400, 404 (2012).




      1
        We need not, however, reach Brewer’s other arguments challenging his
conviction and sentence.
                                            3
       However, the exclusionary rule “is a ‘prudential’ doctrine, created by [the

Supreme] Court to ‘compel respect for the constitutional guaranty.’” Davis v.

United States, 564 U.S. 229, 236 (2011) (first quoting Pa. Bd. of Prob. & Parole v.

Scott, 524 U.S. 357, 363 (1998); then quoting Elkins v. United States, 364 U.S.

206, 217 (1960)). Exclusion of unlawfully obtained evidence is only appropriate

where “its deterrence benefits outweigh its substantial social costs.” Utah v.

Strieff, 136 S. Ct. 2056, 2061 (2016) (quoting Hudson v. Michigan, 547 U.S. 586,

591 (2006)). “Suppression of evidence . . . has always been our last resort, not our

first impulse.” Id. (alteration in original) (quoting Hudson, 547 U.S. at 591).

       Here, we are mindful of the fact that law enforcement obtained two different

warrants pertaining to searches of Brewer’s Volvo, and that Brewer’s arrest

represented the culmination of a four-day multi-agency operation spanning nine

states and thousands of miles. The record does not reveal the type of “sufficiently

deliberate” official misconduct amenable to deterrence through exclusion. Herring

v. United States, 555 U.S. 135, 144 (2009). At worst, the unlawful search here

represents an instance of “isolated negligence” that does not merit suppression of

the search results or their fruits. Id. at 137; see also id. at 144.

       We also observe that an intervening event—Brewer’s participation in a

robbery in broad daylight in Los Angeles—severed the casual chain between the


                                             4
agents’ unlawful tracking and the evidence Brewer seeks to suppress. See Frimmel

Mgmt., LLC v. United States, 897 F.3d 1045, 1053 (9th Cir. 2018) (holding that

attenutation of the taint “‘is more akin to a proximate causation analysis,’ rather

than a ‘but for’ test” (quoting United States v. Smith, 155 F.3d 1051, 1060 (9th Cir.

1998)). We affirm the district court’s order denying Brewer’s motion to suppress.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                                           5
