                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JAN 27 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 15-10561

              Plaintiff-Appellee,                D.C. No. 2:14-cr-00004-JAD-VCF-1

 v.
                                                 MEMORANDUM*
LAMALSKIOU LOWE, AKA
Lanalsikou Lowe, AKA Lanalsikov Lowe,

              Defendant-Appellant.


                    Appeal from the United States District Court
                              for the District of Nevada
                    Jennifer A. Dorsey, District Judge, Presiding

                      Argued and Submitted January 13, 2017
                            San Francisco, California

Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.

      Lamalskiou Lowe appeals his conviction and sentence for illegal possession

of a handgun as a convicted felon and illegal possession of a controlled substance

with intent to distribute under 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 21 U.S.C.

§§ 841(a), (b)(1)(c). We affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1.     The district court did not err by denying Lowe’s motion for a new trial

under Brady v. Maryland, 373 U.S. 83 (1963). To establish a violation of Brady

based on the government’s suppression of exculpatory evidence, the defendant

must show, among other things, that he did not know about the existence of the

exculpatory evidence. United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991).

If, however, the “defendant has enough information to be able to ascertain the

supposed Brady material on his own,” there is no Brady violation. Id. Here, Lowe

sufficiently knew about the existence of the county hospital report throughout both

the pretrial proceedings and trial. Notably, Lowe filed seven pretrial motions

expressly requesting the results from Moore’s physical examination at the county

hospital, and he continued these requests throughout trial. The district court

therefore did not err by rejecting Lowe’s Brady claim for failure to establish

suppression. See Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (rejecting Brady

claim when the “[p]etitioner possessed the salient facts regarding the existence of

the records that he claims were withheld”). Moreover, Lowe’s Brady claim also

fails because he has not established that the government had actual or constructive

possession of the county hospital report. See Strickler v. Greene, 527 U.S. 263, 275

n.12 (1999). The report was created by a county hospital, not the government, and

there is no evidence in the record establishing that any local authorities, including


                                           2
the hospital, the Clark County District Attorney’s Office, or the Las Vegas

Metropolitan Police Department, provided the report to the government.

      2.     The district court did not abuse its discretion by failing to grant a new

trial or order a mistrial after the government introduced evidence of Lowe’s prior

sexual assault conviction. We may reverse the district court and order a new trial

only if, when viewing the publication of Lowe’s prior sexual assault conviction “in

the context of the entire trial, it is more probable than not that [the conviction]

materially affected the verdict.” United States v. Dorsey, 677 F.3d 944, 955 (9th

Cir. 2012) (internal quotation marks omitted). When determining whether the

prosecutor’s alleged misconduct affected the jury verdict, we generally presume

that the jury followed the district court’s curative instructions. Miller v. City of Los

Angeles, 661 F.3d 1024, 1030 (9th Cir. 2011). To overcome the presumption, the

defendant must show that “the risk that the jury will not . . . follow instructions is

so great, and the consequences of failure so vital to the defendant, that the practical

and human limitations of the jury system cannot be ignored.” Bruton v. United

States, 391 U.S. 123, 135 (1968).

      There is no evidence that the publication of Lowe’s prior sexual assault

conviction improperly affected the jury verdict here. After the government

inadvertently published the unredacted version of the sexual assault conviction, the


                                            3
district court immediately instructed the jury to disregard the document. The

district court then instructed the jury to consider Lowe’s previous felony

convictions for the limited purpose of determining whether Lowe was a convicted

felon at the time he allegedly possessed the 9mm handgun. There is no evidence

that the jury failed to follow these instructions. Indeed, the jury’s decision to acquit

Lowe on the .25 caliber handgun charge instead indicates that the jury verdict was

not affected by the publication of the prior sexual assault conviction. See United

States v. de Cruz, 82 F.3d 856, 863 (9th Cir. 1996) (rejecting appeal based on

alleged prosecutorial misconduct in part because the “the fact that the jury

acquitted defendant on one of the charges against her indicates that the jury was

able to weigh the evidence without prejudice”). The district court therefore did not

abuse its discretion in denying Lowe’s mistrial and new trial motions.

      3.     The district court did not commit plain error by allowing the

government to introduce evidence that Lowe assaulted Moore. The government

may introduce prior bad act evidence under Federal Rule of Evidence 404(b)(2) to

provide background information regarding the circumstances of the charged

offense. United States v. Rrapi, 175 F.3d 742, 748 (9th Cir. 1999). Here, the

government introduced the domestic violence evidence against Lowe for the

limited purpose of providing background information regarding (1) the search


                                           4
incident to Lowe’s arrest for domestic violence and (2) the nature of Lowe’s

relationship with Moore. The government’s introduction of the domestic violence

evidence therefore was not improper. Moreover, even if improper, there is no

evidence that the domestic violence evidence “seriously affect[ed] the fairness,

integrity, or public reputation of [the] judicial proceedings” here. Henderson v.

United States, 133 S. Ct. 1121, 1130 (2013). As discussed supra, the jury

ultimately acquitted Lowe on the .25 caliber handgun charge, indicating that the

jury was not prejudiced here.

      4.     The district court did not err by failing to suppress the cocaine

recovered from Lowe during the search incident to his arrest for domestic violence.

Although the Fourth Amendment generally prohibits law enforcement from

entering a home without a warrant, the government may overcome the presumption

of unconstitutionality by showing that law enforcement received consent to enter

the home. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9th Cir. 2008).

Moreover, once law enforcement receives consent to enter the home, the officers

may arrest a suspect and search the suspect incident to that arrest without having to

first acquire a warrant, so long as the arrest is supported by probable cause. United

States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010). At the suppression hearing,

the district court found that (1) Moore gave the officers consent to enter her and


                                          5
Lowe’s shared apartment; (2) Moore had the authority to provide the officers with

consent; (3) the officers did not exceed the scope of Moore’s consent by entering

and then searching the apartment; and (4) given Moore’s allegations of domestic

violence and the visible injuries to her neck and face, law enforcement had

probable cause to arrest Lowe for domestic violence and then search him incident

to that arrest. These findings are sufficient to establish compliance with the Fourth

Amendment, and Lowe does not challenge these findings on appeal. The district

court therefore did not err by failing to suppress the cocaine.

      5.     The district court did not err by failing to suppress the photograph of

the 9mm handgun recovered during the government’s search of the electronic

contents of Lowe’s cellphone.

      First, the government’s search warrant application was supported by

probable cause. “Probable cause . . . is not a high bar[.]” Kaley v. United States,

134 S. Ct. 1090, 1103 (2014). To find probable cause, the magistrate judge need

only find that there is a “fair probability” that the search will reveal “evidence of a

crime.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Here, the government’s search

warrant application provided extensive information establishing that, at the time

law enforcement seized Lowe’s cellphone during his booking and arrest in




                                           6
November 2013,1 the phone likely contained evidence of federal firearms and

narcotics violations. This information included: (1) Moore’s statements to law

enforcement that Lowe sold drugs for a living and had previously sold guns; (2)

the fact that the government recovered a .25 caliber handgun, ammunition for two

other firearms, and drug paraphernalia associated with drug trafficking while

searching Lowe and Moore’s shared apartment; (3) the fact that the government

recovered five bags of cocaine packaged for sale while searching Lowe; and (4)

affidavit testimony from an ATF agent stating that, based on his experience and

training in conducting federal firearms and narcotics investigations, drug dealers

commonly use cellphones to facilitate the sale of drugs. This information was

sufficient to establish probable cause.




      1
        There is no evidence in the record suggesting that the electronic contents of
Lowe’s cellphone changed while the phone was inventoried. Accordingly, the mere
passage of time between Lowe’s arrest in November 2013 and the government’s
search of his phone two months later in January 2014 does not affect the outcome
here. See United States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988) (“The mere
lapse of substantial amounts of time is not controlling . . . .”).
                                          7
      Second, Officer Zavala’s warrantless search of the physical components of

Lowe’s cellphone did not violate the Fourth Amendment.2 When, as here, the

government lacks probable cause to search a prisoner’s property for investigative

purposes, the government may nevertheless search that property if two conditions

are met: (1) the property was “subject to search” during the prisoner’s initial

booking or arrest, and (2) the search was conducted in a reasonable manner. United

States v. Edwards, 415 U.S. 800, 807 & 808 n.9 (1974). Both conditions were met

here. Law enforcement was entitled to search the physical components of Lowe’s

cellphone during booking and arrest, for example, by removing the backplate and

battery from the phone. See Riley v. California, 134 S. Ct. 2473, 2485-87 (2014).

Moreover, the record provides no evidence establishing that Officer Zavala

searched Lowe’s cellphone in an otherwise unreasonable manner, for example, by

searching the phone on multiple occasions. See Edwards, 415 U.S. at 808 n.9

(observing that otherwise constitutional searches “incident to incarceration” may

nevertheless “violate the dictates of reason either because of their number or their

manner of perpetration” (internal quotation marks omitted)). The record indicates


      2
        In addition to his Fourth Amendment challenge, Lowe also argues that
Officer Zavala’s search violated Federal Rule of Criminal Procedure
41(e)(2)(A)(i). Because Lowe failed to raise this argument in his motion to
suppress at the district court, this argument is waived. United States v. Morillo,
288 F.3d 1126, 1135 (9th Cir. 2002).
                                           8
only that, at the request of federal law enforcement, Officer Zavala obtained

Lowe’s cellphone from the jail’s inventory room, removed the backplate and

battery, and recorded the phone’s serial number. This search was not unreasonable.

See Riley, 134 S. Ct. at 2485, 2487.

      6.     The district court did not commit clear error by imposing a two-level

sentencing enhancement for obstruction of justice under U.S. Sentence Guidelines

§ 3C1.1. When, as here, the sentencing enhancement is based on the defendant’s

alleged perjurious testimony at trial, the district court cannot rely solely on the jury

verdict to find perjury. United States v. Dunnigan, 507 U.S. 87, 95 (1993). Rather,

“[the] district court must review the evidence and make independent findings

necessary to establish” perjury. Id. This requires the district court to enter factual

findings establishing that the defendant “satisf[ied] all three elements of perjury[:]

falsity, materiality, and willfulness[.]” United States v. Alvarado-Guizar, 361 F.3d

597, 600 (9th Cir. 2004) (citing Dunnigan, 507 U.S. at 96-97). However, the

district court need not make “separate and clear finding[s]” for each element of

perjury; the district court need only make factual findings “encompass[ing] all of

the factual predicates for a finding of perjury.” Id. (internal quotation marks

omitted). Here, the district court reviewed the evidence presented at trial and made

independent findings establishing each element of perjury. Further, these findings


                                            9
were clearly supported by the record, including: (1) Lowe’s unequivocal testimony

on direct examination that he never possessed the 9mm handgun; (2) Moore’s

testimony on direct examination establishing that Lowe took possession of the

9mm handgun from Moore; and (3) metadata from Lowe’s cellphone establishing

that someone using the phone took a photograph of the 9mm handgun in

November 2013 at the same time when Lowe was living with Moore in their

shared apartment. These findings are sufficient to uphold a sentencing

enhancement for perjury under section 3C1.1 on clear error review. See United

States v. Taylor, 749 F.3d 842, 848 (9th Cir. 2014) (upholding sentencing

enhancement under section 3C.1.1 when the district court reviewed a recording of

a bond revocation hearing and determined that the defendant “clearly and

unambiguously and under oath, told a story that was simply not true, based on the

totality of the evidence[,] in an effort to persuade the magistrate judge that [he]

should not be taken back into custody”) (internal quotation marks omitted, second

alteration in original)).

       AFFIRMED.




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