                                                                           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                           NOT FOR PUBLICATION                              NOV 17 2009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).


                                             3
      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




                                           4
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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