                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 02 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10579

              Plaintiff-Appellee,                D.C. No. 2:14-cr-00332- JAD

 v.

EDWARD JAMESON PURRY II,                         MEMORANDUM*

              Defendant-Appellant.


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

                       Argued and Submitted April 18, 2017
                            San Francisco, California

Before:      REINHARDT, TASHIMA, and BERZON, Circuit Judges.

      On four occasions in 2013, Appellant Edward J. Purry II purchased guns

from Big Gun Enterprises, LLC, a federally licensed firearms dealer based in

Henderson, Nevada. On each of these occasions, Purry completed the requisite




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Firearms Transaction Record, also known as a Form 4473, on which he represented

that he resided in Nevada.

      Purry was indicted on four counts of violating 18 U.S.C. §§ 922(a)(6) and

924(a)(2) for illegally acquiring firearms. The indictment alleged that Purry

knowingly misrepresented his address and his state of residency on the Form

4473s. A jury convicted Purry on all counts. He was sentenced to concurrent

terms of 102 months’ imprisonment.

      Purry now appeals his conviction and sentence. First, Purry argues that the

government violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United

States, 405 U.S. 150 (1972), by failing to disclose, until shortly before trial,

evidence of Big Gun’s own Form 4473 reporting violations. Second, Purry

challenges the sufficiency of the government’s evidence. Third, Purry objects to a

variety of the district court’s evidentiary rulings. Finally, Purry contends that his

sentence is substantively unreasonable.

      We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1.     We review alleged Brady and Giglio violations de novo. United

States v. Wilkes, 662 F.3d 524, 534 (9th Cir. 2011) (citation omitted). A Brady /

Giglio violation has three elements: “(1) the evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it is impeaching; (2) that


                                            2
evidence must have been suppressed by the State, either willfully or inadvertently;

and (3) prejudice must have ensued.” United States v. Kohring, 637 F.3d 895, 901

(9th Cir. 2011). “Evidence is prejudicial . . . ‘only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.’” Id. at 902 (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)). In turn, “[t]here is a ‘reasonable probability’ of

prejudice when suppression of evidence ‘undermines confidence in the outcome of

the trial.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

      Purry’s Brady / Giglio claim turns on the government’s purported failure

timely to disclose the fact that Big Gun had itself been reprimanded by the Bureau

of Alcohol, Tobacco, Firearms and Explosives for inaccurately completing Form

4473s. Purry argues this evidence would have been both “independently

exculpatory” and valuable “impeachment evidence.”

      We are unpersuaded. Purry contends this evidence was exculpatory because,

had it been timely disclosed, he could have pursued the theory that Big Gun’s own

employees were instructing purchasers, like him, to complete the Form 4473s

incorrectly. However, not every late disclosure gives rise to a Brady violation.

See, e.g., United States v. Woodley, 9 F.3d 774, 777 (9th Cir. 1993) (rejecting

Brady claim where potentially exculpatory material was disclosed shortly before


                                            3
and even during trial). In fact, “Brady does not necessarily require that the

prosecution turn over exculpatory material before trial.” United States v. Aichele,

941 F.2d 761, 764 (9th Cir. 1991) (citation omitted). Rather, the relevant inquiry is

whether the disclosure, when made, was still of value to the accused. See id. Here,

Purry repeatedly sought to use the evidence at trial, which confirms that the

evidence remained of value to Purry, despite its late disclosure.1 This is enough to

defeat his Brady claim. Id.

      Purry also argues that evidence of Big Gun’s reporting violations would

have enabled him to impeach the testimony of Big Gun’s owner Gina Allen, who

laid the foundation for admission of the Form 4473s as business records under

Federal Rule of Evidence 803(6). Even assuming, without deciding, that this

evidence would have undermined Allen’s testimony, any resulting error is

harmless because the court made clear that, in the alternative, the Form 4473s were

admissible under Federal Rule of Evidence 801(d)(2), as statements by a party-

opponent. Accordingly, Purry’s Giglio challenge likewise fails.



      1
             To be sure, the district court refused to allow Purry to actually use the
evidence at trial, explaining that the evidence was irrelevant and unduly prejudicial
under Federal Rule of Evidence 403. But this is immaterial for purposes of Brady.
What matters is that, despite the late disclosure, Purry received the evidence from
the government with sufficient time to utilize it at trial. That the court then
excluded the evidence on unrelated grounds does not change this fact.
                                           4
      2.     We review a sufficiency of the evidence challenge de novo. See

United States v. Tucker, 641 F.3d 1110, 1118 (9th Cir. 2011). In so doing, we

construe “the evidence presented against the defendant in the light most favorable

to the government to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v.

Somsamouth, 352 F.3d 1271, 1274–75 (9th Cir. 2003) (quoting United States v.

Gonzalez-Torres, 309 F.3d 594, 598 (9th Cir. 2002)).

      The offense of which Purry was convicted requires that (1) a defendant

knowingly, (2) make a false statement, (3) in connection with the acquisition of a

firearm, (4) that relates to facts material to the legality of the firearm sale. See 18

U.S.C. § 922(a)(6). Purry contends that “[t]he government failed to present

sufficient evidence that [he] knowingly and falsely stated he resided in Nevada and

that [his] statements about his address and state of residence were material to the

firearm sales.”

      Both of these arguments fail. First, Purry’s own statements that he lived in

Oakland, California – made to law enforcement and repeated on his applications to

obtain a concealed weapons permit, an identification card, and a UPS mail box –

provide a sufficient basis for concluding that his representations to the contrary on

the Form 4473s were false. Second, Purry’s materiality argument fails under the


                                            5
logic of Abramski v. United States, 134 S.Ct. 2259, 2273 (2014), in which the

Court held that information on a Form 4473 is material if the dealer’s knowledge

of its falsity would render the sale unlawful. That is the case here: had Big Gun

known Purry was misrepresenting his state of residence, the sale would have been

unlawful.

      Accordingly, we deny Purry’s sufficiency of the evidence challenge.

      3.     We review a district court’s denial of a motion to exclude evidence

under Rules 403 and 404(b) for abuse of discretion. See United States v. Vo, 413

F.3d 1010, 1017 & n.4 (9th Cir. 2005). A district court’s denial of a motion for a

mistrial is likewise reviewed for abuse of discretion. See United States v. Lemus,

847 F.3d 1016, 1024 (9th Cir. 2016). Finally, we consider de novo a district

court’s denial of a Confrontation Clause claim. See United States v. Cazares, 788

F.3d 956, 972 (9th Cir. 2015).

             A.    Purry’s first evidentiary objection takes issue with the

admission of “evidence indicating he shipped firearms from Nevada to California.”

Prior to trial, Purry unsuccessfully sought to exclude the evidence via a motion in

limine. During trial, Purry moved, again unsuccessfully, for a mistrial on the same

issue. The district court admitted the evidence because it tended to show that Purry

was not a resident of Nevada, which was probative of an element of the charged


                                          6
offense. Because this evidence corroborated other evidence as to Purry’s state of

residence, as well as Purry’s motive for making false statements, we cannot find

the court’s ruling to be an abuse of discretion.

             B.     Purry next challenges the efficacy of the district court’s limiting

instruction as it relates to evidence that Purry used the alias “Kenny Clutch.” This

argument fails because “our court assumes that the jury listened to and followed

the trial judge’s instructions.” United States v. Escalante, 637 F.2d 1197, 1202

(9th Cir. 1980) (citation omitted). See also United States v. Gallenardo, 579 F.3d

1076, 1082 (9th Cir. 2009) (affirming denial of motion for a mistrial because it is

“presume[d] that the jury followed the district court’s limiting instruction”).

Because Purry has advanced no reason why we should depart from this well-

established principle in this case, we reject this argument.

             C.     Purry’s third evidentiary objection concerns the court’s

admission, over his objection, of photographs depicting firearms that had been

seized by the U.S. Postal Service in California. Purry challenges the evidence as

unduly prejudicial under Rule 403. We cannot agree. Several factors support

affirming the district court. First, this is not a case where weapons had no

connection to the offenses charged; rather, the crux of the government’s case was

that Purry was buying guns in Nevada to unlawfully ship them to California.


                                           7
Second, the risk of undue prejudice is further reduced because the firearms

pictured, while not the guns referenced in the indictment, were, nevertheless,

actually shipped by Purry. Finally, we afford trial courts “wide discretion” when

applying “the broad contours of Rule 403[.]” United States v. Layton, 767 F.2d

549, 554 (9th Cir. 1985). Accordingly, we conclude that the district court did not

abuse its discretion in this instance.

             D.     Purry’s next evidentiary challenge takes issue with the district

court’s admission of evidence – both photographic and testimonial – suggesting

that Purry possessed more guns than the fourteen charged in the indictment.

According to Purry, the district court should have granted a mistrial on this basis.

We disagree.

      Even accepting Purry’s premise that this evidence was prejudicial, we have

held that “[w]here evidence heard by the jury is later ruled inadmissible, a

cautionary instruction is ordinarily sufficient to cure any alleged prejudice to the

defendant.” United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985).

“Declaring a mistrial is appropriate only where a cautionary instruction is unlikely

to cure the prejudicial effect of an error.” Id. Here, after reciting the charges in the

indictment, the district court instructed the jurors that “[y]ou are here only to

determine whether the defendant is guilty or not guilty of the charges in the


                                           8
Indictment,” and that “[t]he defendant is not on trial for any conduct or offense not

charged in the Indictment.” This instruction was sufficient to overcome any

prejudice resulting from the challenged evidence. Accordingly, we deny Purry’s

fourth evidentiary challenge.

             E.     Purry’s final evidentiary objection challenges the district

court’s admission of evidence relating to Dan Tillman, the Big Gun employee who

partially completed some of the Form 4473s at issue in this case. Purry contends

that because he never had an opportunity to cross-examine Tillman, the admission

of this evidence violated the Sixth Amendment’s Confrontation Clause. We

disagree. As to the Form 4473s themselves, they are business records and

therefore “are generally admissible absent confrontation.” Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 324 (2009). See also United States v. Bland, 961

F.2d 123, 127 (9th Cir. 1992) (admitting Form 4473s as business records).

Likewise, the challenged testimony as to the same was not offered for the truth of

the matter asserted. Instead, it was offered to explain why law enforcement

decided to follow up on Purry’s Form 4473s. Such testimony cannot give rise to a

Confrontation Clause claim. See Crawford v. Washington, 541 U.S. 36, 59 n.9

(2004) (“[The Confrontation Clause] does not bar the use of testimonial statements

for purposes other than establishing the truth of the matter asserted.”).


                                           9
      4.     We review the substantive reasonableness of a sentence for abuse of

discretion. See United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). Purry

was sentenced to concurrent terms of 102 months’ imprisonment. The district

court determined Purry’s sentence by calculating a guidelines range of 97 to 121

months, based on an Adjusted Offense Level of 30 and a Criminal History

Category of I. Because the district court imposed a within guidelines sentence and

sufficiently explained why the sentence adopted was appropriate, Purry’s sentence

was substantively reasonable. See United States v. Blinkinsop, 606 F.3d 1110,

1116 (9th Cir. 2010) (“[W]hen a district judge imposes a sentence within the

Guidelines range, ‘it is probable that the sentence is reasonable,’ because the

judge’s application of the § 3553(a) factors accords with the Sentencing

Commission’s independent application of those factors in the ‘mine run of

cases.’”).



AFFIRMED.




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