                                                                               FILED
                            NOT FOR PUBLICATION                                MAY 15 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 14-10179

              Plaintiff - Appellee,               D.C. No. 3:12-cr-00499-CRB-1

  v.
                                                  MEMORANDUM*
CHANGA LAKE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Northern District of California
                 Charles R. Breyer, Senior District Judge, Presiding

                             Submitted May 13, 2015**
                              San Francisco, California

Before: O’SCANNLAIN, IKUTA, and N.R. SMITH, Circuit Judges.

       Changa Lake appeals his jury conviction for being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Lake argues the district court erred

in (1) failing to allow him to argue lack of fingerprint evidence at closing


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
argument, (2) failing to suppress evidence, (3) failing to read back the entire

testimony of a witness, and (4) failing to find a violation of his right to a speedy

trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district

court.

1.       We review the district court’s decision to limit Lake’s closing argument

regarding fingerprint evidence for an abuse of discretion, United States v.

Lazarenko, 564 F.3d 1026, 1043 (9th Cir. 2009), although the issue of whether this

limitation violated Lake’s Sixth Amendment right to counsel is reviewed de novo.

United States v. Doe, 705 F.3d 1134, 1149 (9th Cir. 2013). While a “complete

denial of summation violates the [Sixth Amendment] Assistance of Counsel

Clause,” Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (emphasis added), trial courts

have “broad discretion” in “controlling the duration and scope of closing

summations.” Herring v. New York, 422 U.S. 853, 862 (1975). Such discretion

includes the power to ensure that closing arguments do “not stray unduly from the

mark.” Id.

         When the Government seized the handgun, it chose to test the handgun for

DNA rather than fingerprints. According to the Government, DNA results would

be returned faster and would be more accurate and conclusive. Although the

Government obtained relevant and probative DNA results from the handgun, Lake


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successfully moved the district court to exclude the forensic DNA evidence as

untimely disclosed (the Government indicated that budget constraints forced it to

wait until a trial date was set before requesting DNA testing). It was not an abuse

of discretion for the district court to then preclude Lake from arguing lack of

fingerprint evidence at closing argument. Lake’s constitutional right to present a

defense did not include the right to affirmatively misrepresent or falsely imply that

the police had found no forensic evidence connecting him to the gun.

2.    We review the lawfulness of a search and seizure and a district court’s denial

of a motion to suppress de novo. See United States v. Mayer, 560 F.3d 948, 956

(9th Cir. 2009); United States v. Deemer, 354 F.3d 1130, 1132 (9th Cir. 2004).

Findings of fact underlying the district court’s determination are reviewed for clear

error. See Deemer, 354 F.3d at 1132. A district court’s refusal to hold an

evidentiary hearing on a motion to suppress is reviewed for an abuse of discretion.

United States v. Quoc Viet Hoang, 486 F.3d 1156, 1163 (9th Cir. 2007). It was not

clearly erroneous for the district court to find that Officer Tedesco was lawfully

present near Lake’s vehicle, and that with his flashlight, Tedesco was able to see

the handgun in plain view. Therefore, it was not a search. United States v. Dunn,

480 U.S. 294, 305 (1987) (“[I]t is beyond dispute that the action of a police officer

in shining his flashlight to illuminate the interior of a car, without probable cause


                                           3
to search the car, trenched upon no right secured by the Fourth Amendment.”)

(internal quotation marks and alteration omitted). Because the incriminating nature

of the gun was immediate, the seizure of the semi-automatic handgun was lawful

under the plain view exception to the warrant requirement. See Texas v. Brown,

460 U.S. 730, 739 (1983) (plurality opinion); United States v. Hall, 974 F.2d 1201,

1204 (9th Cir. 1992). Additionally, the district court did not abuse its discretion in

failing to hold an evidentiary hearing prior to making its decision, because there

were no contested issues of fact. See United States v. Howell, 231 F.3d 615, 620

(9th Cir. 2000) (holding that an evidentiary hearing is required “only when [the

defendant] allege[s] facts with sufficient definiteness, clarity, and specificity to

enable the trial court to conclude that contested issues of fact exist”). Lynette

Maynard’s declaration did not create a contested issue of fact. It stated only that

she had seen the window tint and “believe[d]” the floorboard could not be viewed

through it with a flashlight, while Officer Tedesco stated that he actually used his

flashlight to look through the windows, and that he had used the same flashlight to

look through excessively tinted windows many times and had never been unable to

see through them.

3.    We review the district court’s decision to honor a request to replay or reread

witness testimony “for the jury’s benefit after deliberation has begun” for an abuse


                                            4
of discretion. United States v. Sandoval, 990 F.2d 481, 486 (9th Cir. 1993)

(quoting United States v. Birges, 723 F.2d 666, 671 (9th Cir. 1984)). Prior to the

readback, the district court properly admonished the jurors that they should not

give the readback undue weight or influence. See United States v. Newhoff, 627

F.3d 1163, 1168 (9th Cir. 2010). The court instructed the jury to give full

consideration to all of the evidence and testimony presented, and the length of the

testimony made it impractical to read the testimony in its entirely. See id.

Therefore, the district court did not commit a clear error in judgment when

deciding to allow a partial readback of Officer Tedesco’s testimony. See United

States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir.1994) (“Under the abuse of

discretion standard, we will not reverse unless we have a definite and firm

conviction that the district court committed a clear error in judgment.”).

4.    We review de novo the district court’s denial of Lake’s motion to dismiss,

on the ground that the Government violated his Sixth Amendment right to a speedy

trial. United States v. Gregory, 322 F.3d 1157, 1160 (9th Cir. 2003). However,

the district court’s factual determinations underlying the claim are reviewed for

clear error. Id. The district court fully evaluated both the pre-indictment and post-

indictment delays. Relevant to this claim, the district court found the following

facts: (1) the Government waited to indict Lake on the federal gun charges,


                                          5
because it did not want to potentially compromise its larger Burnout Family Mafia

investigation; (2) it is not uncommon for an investigation in one matter to delay or

affect an indictment in another; (3) the Government searched for Mr. Lake, but he

was not found; (4) the Government did not have anything to do with the

availability of the vehicle as evidence at trial, because the Government did not

have control over the vehicle and did not cause the sale of the vehicle; and (5) all

delays post-indictment were caused by the defendant or on behalf of the defendant.

The district court’s factual findings are supported by the record and not clearly

erroneous. Among other reasons for delay, the record indicates that Lake moved to

Washington state after his indictment and before his arrest without notifying his

probation officer. After evaluating the “[l]ength of delay, the reason for the delay,

[Lake’s] assertion of his right, and prejudice to [Lake],” and deferring to the

district court’s factual findings, we find Lake’s Sixth Amendment speedy trial right

was not violated. See Barker v. Wingo, 407 U.S. 514, 530-33 (1972).

      AFFIRMED.




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