                            NOT FOR PUBLICATION                              FILED
                    UNITED STATES COURT OF APPEALS                           SEP 24 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.    18-10241

                Plaintiff-Appellee,              D.C. No.
                                                 3:17-cr-00008-HDM-WGC-1
 v.

CONNOR TIMOTHY WOODS,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                        Argued and Submitted July 15, 2019
                            San Francisco, California

Before: PAEZ and RAWLINSON, Circuit Judges, and HUCK,** District Judge.

      Defendant-Appellant Connor Woods appeals his convictions for conspiracy

to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951;

interference with commerce by robbery, in violation of 18 U.S.C. § 1951; and use

of a firearm in relation to a crime of violence, in violation of 18 U.S.C.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
§ 924(c)(1)(A)(ii). This case involves a robbery of a 7-Eleven in Reno, Nevada,

and the prosecution’s theory was that Woods carried out the robbery with the use

of a handgun. Woods argues that the district court erred in denying his motion to

suppress his confession, improperly admitted evidence of “prior bad acts,” and

abused its discretion in admitting evidence over Woods’s chain of custody and

authentication objections. Woods also argues that a witness’s testimony that the

defendants were “gang members” warrants a new trial and that there was

insufficient evidence. We have jurisdiction under 28 U.S.C. § 1291, and we

reverse and remand for further proceedings.

      1. Woods appeals the denial of his motion to suppress his confession

because the government cannot establish that he knowingly and voluntarily waived

his rights under Miranda v. Arizona, 384 U.S. 436 (1966), as he was not fully

informed of those rights. We review de novo the denial of a motion to suppress

and questions of law, including the adequacy of a Miranda warning. See United

States v. Perez-Lopez, 348 F.3d 839, 844 (9th Cir. 2003).

      A suspect must be advised of the right to counsel before questioning, and

Woods was never informed of that right. See United States v. Noti, 731 F.2d 610,

615 (9th Cir. 1984). Woods was questioned by police officers on two consecutive

days, and he confessed on the second day. The warning Woods received on the

first day of questioning did not state that Woods had the right to counsel before


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questioning. On the second day, Woods was not fully re-advised of his rights;

instead, the interrogating officer asked Woods if he was advised of his rights the

day before and remembered those rights. Because Woods was not informed of the

right to consult with an attorney before questioning, the warnings did not

“reasonably convey” to Woods his Fifth Amendment rights against self-

incrimination. See Duckworth v. Eagan, 492 U.S. 195, 203 (1989).

      The district court denied Woods’s motion to suppress—in error—because

the court determined that, even though Woods did not receive a proper Miranda

warning on the second day of questioning, he “was properly Mirandized within a

24-hour period,” on the first day of questioning. The government agrees that the

district court erred in determining that Woods was properly advised on the first day

of questioning; however, the government argues that Woods waived any challenge

to the advisement given on the first day of questioning.

      Woods did not waive his challenge to the improper Miranda advisement on

the first day of questioning. Although Woods’s motion to suppress in district court

focuses on the second day’s questioning, Woods argued that the “Miranda

warnings were incomplete because the officer did not inform the suspect that he

had the right to counsel prior to being questioned.” Moreover, the question of

whether it was proper for Woods to be interrogated without a complete Miranda

warning on the second day necessarily involves an examination of the warning on


                                         3
the first day. See United States v. Andaverde, 64 F.3d 1305, 1311 (9th Cir. 1995)

(“The voluntariness of a confession is determined by the totality of the

circumstances.”).

      Having found that the district court erred in denying the motion to suppress

the confession and that Woods did not waive this challenge, “we must consider

whether the error was harmless beyond a reasonable doubt.” Noti, 731 F.2d at 615.

Neither the clerk from the 7-Eleven, nor any other witness, identified Woods as the

robber or placed him at the robbery. Given the circumstantial nature of the

remaining evidence, it does not appear “beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” Chapman v. California,

386 U.S. 18, 24 (1967). We therefore reverse and remand for a new trial.

      2. Because we reverse Woods’s conviction, we need not address his

argument that there was insufficient evidence to support the jury’s verdict or that a

witness’s testimony that the defendants were “gang members” warrants a new trial.

However, because the evidentiary issues could be implicated in a retrial, we

proceed to address them. First, the district court did not abuse its discretion when

it admitted testimony about Woods taking and possessing the handgun, van, and

driver’s license because this evidence was “inextricably intertwined” with the

charged offense and offered to prove identity, preparation, or plan. See Fed. R.

Evid. 404(b); United States v. Loftis, 843 F.3d 1173, 1176–78 (9th Cir. 2016).


                                          4
Second, the district court did not abuse its discretion in admitting Woods’s phone

calls from the Sonoma County Jail, the fingerprint from USA Pawn, surveillance

video from The Sting, or body camera video from Woods’s arrest over Woods’s

authentication and chain of custody challenges because there was “a reasonable

probability the article[s] ha[d] not been changed in important respects.” United

States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991) (internal quotations

marks and citation omitted).

      REVERSED AND REMANDED.




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                                                                             FILED
United States v. Woods, Case No. 18-10241                            SEP 24 2019
Rawlinson, Circuit Judge, concurring in part and dissenting in part:
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
      I respectfully dissent from that portion of the disposition concluding that the

district court erred in denying Connor Woods’ motion to suppress his confession.

      As an initial matter, Woods did not assert as a basis for his motion to

suppress in district court that he received defective warnings in violation of

Miranda v. Arizona, 384 U.S. 436 (1966), in conjunction with the Sonoma County

arrest. This failure “constitutes a waiver.” United States v. Hawkins, 249 F.3d

867, 872 (9th Cir. 2001). Indeed, Woods’ counsel affirmatively stated at the

suppression hearing that she had “no quibble with the fact that Sergeant Cutting

[from Sonoma County] did do a proper Miranda of Mr. Woods,” and that Woods

indicated he understood the warnings. Similarly the motion to suppress confirmed

that “[t]he arresting deputy properly gave Mr. Woods his Miranda rights.”

      The record is clear that Mr. Woods waived his Miranda argument as it

relates to the Sonoma County questioning. As to the questioning by the City of

Reno detective, Woods was asked if he had been previously advised of his

Miranda rights and was requested to express his understanding of what those rights

encompassed. In response, Woods specifically mentioned the right to remain

silent, and confirmed that the Miranda rights were “fresh in [his] mind” from his



                                          1
arrest. Woods also had no questions regarding his Miranda rights. Woods’

response was not surprising in light of his extensive experience with the criminal

justice system. See United States v. Price, 921 F.3d 777, 792 (9th Cir. 2019)

(explaining that “[i]n determining the knowing and intelligent nature of the waiver,

we consider the totality of the circumstances, including . . . whether the defendant

had prior experience with the criminal justice system”) (citation omitted).

      Consequently, although I concur in the balance of the majority disposition, I

respectfully dissent from the reversal of the district court’s ruling on the motion to

suppress.




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