United States of America v. Devaughn Dorsey, also known as Buster

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEVAUGHN DORSEY, also known as
Buster,
Defendant-Appellant.
No. 17-30257
D.C. No.
2:08-cr-00245-RSL-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted June 4, 2019
Seattle, Washington
Before: D.W. NELSON, RAWLINSON, and BEA, Circuit Judges.
Devaughn Dorsey (“Dorsey”) appeals the district court’s denial of his
motion for a new trial and his motions for an evidentiary hearing. Dorsey
challenges his convictions for one count of Witness Tampering and one count of
Discharging a Firearm During and in Relation to a Crime of Violence, both for
FILED
JUL 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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firing gunshots into the home of a witness scheduled to testify against him in a
grand jury investigation. Dorsey moved for a new trial and for an evidentiary
hearing based on the recantations by two trial witnesses and declarations from
other witnesses supporting those recantations. The district court denied both
motions. Dorsey argues the district court erred in considering cell tower data that
had been presented at trial in denying his motion because that data was collected
pursuant to a provision of a statute which did not require a warrant and which was
later held to be unconstitutional. Dorsey also argues the district court abused its
discretion in denying his motion for an evidentiary hearing.
This court reviews the denial of “a motion for a new trial made on the
ground of newly discovered evidence for abuse of discretion.” United States v.
Brugnara, 856 F.3d 1198, 1206 (9th Cir. 2017), cert. denied, 138 S. Ct. 409, 199
L. Ed. 2d 301 (2017) (citing United States v. Hinkson, 585 F.3d 1247, 1259 (9th
Cir. 2009) (en banc)). The court also reviews the denial of a request for an
evidentiary hearing on a motion for new trial for abuse of discretion. United States
v. Colacurcio, 499 F.2d 1401, 1407 (9th Cir. 1974).
Dorsey argues the court should exclude the cell tower data because the
government obtained the data in 2008 with a court order under a provision of the
Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d), which did not require
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a warrant and probable cause. Under the SCA, the government needed to
demonstrate only a reasonable belief that the data was relevant and material to an
ongoing investigation. 18 U.S.C. § 2703(d). In 2018, the Supreme Court decided
such searches violate the Fourth Amendment and held “the Government must
generally obtain a warrant supported by probable cause before acquiring” historical
cell-site location information. Carpenter v. United States, 138 S. Ct. 2206, 2221,
201 L. Ed. 2d 507 (2018).
This court has previously applied the good faith exception to requests for
historical cell tower data made to third parties under the SCA. Under Illinois v.
Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), “[e]vidence
obtained by the Government, acting in ‘objectively reasonable reliance upon a
statute’ that is ‘ultimately found to violate the Fourth Amendment,’ does not
require suppression.” United States v. Korte, 918 F.3d 750, 758 (9th Cir. 2019)
(quoting Krull, 480 U.S. at 342, 350 (emphasis original)). “[I]t is hardly
objectively unreasonable to rely on a then-lawful statute when courts were
upholding it or similar legislative schemes.” Id. (citing Krull, 480 U.S. at 358–59).
The officers collected the data in 2008 in a manner which complied with the
statute and at the time there was no challenge to the statute as being infirm. See
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United States v. Qing Li, 2008 WL 789899, at *3, *5 (S.D. Cal. Mar. 20, 2008);
see also United States v. Ahumada-Avalos, 875 F.2d 681, 683 (9th Cir. 1989).
Dorsey cites out-of-circuit cases to support his argument: United States v.
Davis, 754 F.3d 1205 (11th Cir. 2014), vacated and reh’g en banc granted, 573 F.
App’x 925 (11th Cir. 2014), opinion reinstated in part and reh’g en banc in part,
785 F.3d 498 (11th Cir. 2015); and In re U.S. for an Order Directing a Provider of
Elec. Commc'n Serv. to Disclose Records to the Gov't, 534 F. Supp. 2d 585 (W.D.
Pa. 2008), aff'd, No. 07-524M, 2008 WL 4191511 (W.D. Pa. Sept. 10, 2008),
vacated sub nom. In re Application of U.S. for an Order Directing a Provider of
Elec. Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304 (3d Cir. 2010).
These out-of-circuit cases would not have put a reasonable officer in Washington
State on notice that his conduct may violate the Fourth Amendment. See United
States v. Leon, 468 U.S. 897, 919–20, 104 S. Ct. 3405, 3419 (1984).
Because we find the government reasonably relied on the SCA when it
obtained the cell tower data, we apply the Fourth Amendment’s good-faith
exception and will not exclude the cell tower data. Korte, 918 F.3d at 758. The
district court did not err in considering the cell tower data in deciding the motion.
Dorsey argues also that the district court abused its discretion when it
declined to hold an evidentiary hearing before denying his motion for a new trial.
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Dorsey argues that “[a]bsent the unconstitutionally seized evidence, Dorsey’s
motion for new trial should not have been decided without an evidentiary hearing.”
As discussed above, the good faith exception applies and the district court did not
err in considering the cell tower data.
Further, the district court determined that even absent the testimony of the
recanting witnesses, it was not probable that the jury would have reached a
different verdict because the cell tower data showing Dorsey tried to create a false
alibi just after the shooting, near the scene of the shooting, was the most
compelling evidence against him. “[N]ewly discovered evidence is ‘material’ when
the result of the newly discovered evidence is that ‘a new trial would probably
result in acquittal . . . .’” Hinkson, 585 F.3d at 1284 (citing United States v. Krasny,
607 F.2d 840, 845 n.3 (9th Cir. 1979)). Finally, the district court presided over the
trial and noted it had the opportunity to assess the witnesses’ credibility at the time
and it did not need to hear the witnesses recant in a hearing to decide their
recantations were not more credible than their trial testimony. The district court
was not required to hold an unnecessary hearing. Colacurcio, 499 F.2d at 1407.
The district court did not abuse its discretion in denying Dorsey’s motion for
an evidentiary hearing.
AFFIRMED.
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