                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 25 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-16575

              Plaintiff - Appellee,              D.C. Nos.     4:05-cv-03756-DLJ
                                                               4:98-cr-40082-DLJ-3
  v.

KEVIN LEE DAVIS, AKA Slow, AKA                   MEMORANDUM* AND ORDER
Yellow Dude,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                 D. Lowell Jensen, Senior District Judge, Presiding

                        Argued and Submitted June 11, 2014
                             San Francisco, California

Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.

       Kevin Davis appeals the district court’s denial of his motion for post-

conviction relief pursuant to 28 U.S.C. § 2255. The sole issue on appeal is whether

the admission of the statement of Sandy Medina was harmless error. Davis’s trial


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
took place before the Supreme Court’s decision in Crawford v. Washington, 541

U.S. 36 (2004). Medina’s arrest precipitated Davis’s prosecution, and her refusal

to testify was unexpected. Her statement to police was read to the jury toward the

end of the prosecution’s case, and the prosecutor did refer to it repeatedly during

closing and rebuttal. The applicable harmless error standard is whether the error

had a substantial and injurious effect or influence in determining the jury’s verdict.

Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993); United States v. Montalvo,

331 F.3d 1052, 1058 (9th Cir. 2003) (per curiam).

      We have said that the factors we apply in determining whether a

Confrontation Clause violation satisfies that standard are: the importance of the

testimony in the government’s case; whether the testimony was cumulative; the

presence or absence of evidence corroborating or contradicting the testimony; the

extent of cross-examination permitted; and the overall strength of the

government’s case. Whelchel v. Washington, 232 F.3d 1197, 1206 (9th Cir. 2000)

(citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

      Here, the evidence against Davis was overwhelming. It included pager

codes, recorded telephone conversations, expert testimony, co-conspirator

testimony, surveillance, and physical evidence. While it was convenient for the

government to place some emphasis on Medina’s statement when it appeared that


                                           2
it was properly admissible, the statement added little to the government’s case. It

merely provided concise corroboration for what the government had proved over

the course of the two-month trial.

      Davis has also moved to strike Volume VI of the government’s excerpts of

record. Volume VI consists of the transcripts of intercepted phone calls between

Davis and his co-conspirators. Davis points out that only the tapes themselves, not

the transcripts, were admitted into evidence. The transcripts were part of the

record on direct appeal, and Davis has never contended that there was any

inaccuracy. The motion to strike is therefore denied.

      The judgment of the district court is AFFIRMED, and Davis’s motion to

strike is DENIED.




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