NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

BRIAN KEITH WRIGHT, 

Defendant-Appellant.

No. 19-10152 

D.C. No. 

2:17-cr-00160-JAD-VCF-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted October 18, 2021

San Francisco, California

Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,**International 

Trade Judge.

Brian Wright appeals his conviction after a jury trial for armed robbery of two 

jewelry stores in Las Vegas. We affirm.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable M. Miller Baker, Judge for the United States Court of 

International Trade, sitting by designation.

FILED

NOV 1 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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1. Prior to issuance of the Supreme Court’s opinion in Carpenter v. United 

States, 138 S. Ct. 2206 (2018), which holds that a warrant is required to obtain such 

data, investigators obtained a state court order under the Stored Communications

Act (SCA), 18 U.S.C. § 2703(d), to access Wright’s historic cell phone location records from his carrier. Invoking Carpenter, Wright moved to suppress. The district 

court denied his motion, applying the good-faith exception to the exclusionary rule. 

We review the denial of a motion to suppress and the application of the exclusionary 

rule de novo. United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en 

banc).

If the affidavit used to obtain the state court order “satisfied the [SCA’s] thenlawful requirements,” United States v. Korte, 918 F.3d 750, 758–59 (9th Cir. 2019), 

the good-faith exception to the exclusionary rule applies. Under the SCA, the government was required to establish (1) “specific and articulable facts” showing (2) 

“reasonable grounds to believe” that the information sought was (3) “relevant and 

material” to an ongoing criminal investigation. See 18 U.S.C. § 2703(d).

The affidavit used to obtain the state court order presented “specific and articulable facts” establishing that the phone of a person whom investigators determined was “likely involved” in one of the robberies—Deandre Brown—was in “substantial contact . . . before, during[,] and after” the robbery with a phone investigators 

determined to be Wright’s. These facts established “reasonable grounds to believe” 
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that the information sought would be “relevant and material” to the investigation

because the location data for a cell phone in contact with a suspected armed robber 

before, during, and after the robbery bears on the probability that the phone’s user 

was also involved. The district court therefore did not err in finding the good-faith 

exception satisfied.

2. Wright contends the district court erred by permitting the prosecution to 

elicit testimony that he persuaded co-defendant Aquail Harris to participate in the 

robberies by claiming to have successfully robbed jewelry stores before. In admitting this evidence, the district court distinguished between direct evidence of prior 

robberies and “statements that [Wright] allegedly made to Harris” bragging about 

prior robberies, the latter of which the court characterized as “inextricably intertwined” evidence necessary to permit the prosecution to offer a coherent story. We 

review a district court’s evidentiary rulings for abuse of discretion and will reverse 

only if nonconstitutional error more likely than not affected the verdict. United 

States v. Whittemore, 776 F.3d 1074, 1077–78 (9th Cir. 2015).

The district court correctly applied United States v. Vizcarra-Martinez, 66 

F.3d 1006, 1012–13 (9th Cir. 1995), in finding the testimony of Wright’s bragging 

to be “inextricably intertwined” with the alleged criminal conduct before it. See also 

United States v. Beckman, 298 F.3d 788, 793–94 (9th Cir. 2002); United States v. 

DeGeorge, 380 F.3d 1203, 1220 (9th Cir. 2004). Wright’s reliance on United States 
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v. Green, 648 F.2d 587 (9th Cir. 1981), fails under Federal Rule of Evidence 403 

because Green prohibited only evidence that was of inconsequential probative significance or was not addressed to a contested issue. Here, Harris’s testimony was 

probative because it corroborated the government’s theory that Wright masterminded the robberies. Finally, the district court limited the prosecution by prohibiting evidence that Wright was charged with a robbery of which he was not convicted 

and by only allowing testimony that he boasted of his robbery prowess. The point 

was not whether his statements were true—the point was that he made them to persuade Harris to participate.

3. Wright also contends the district court erred in allowing the prosecution to 

introduce evidence that he made threatening statements to alleged co-conspirators. 

He argues the evidence was more prejudicial than probative and the statements were 

not threats. The district court, citing Ortiz-Sandoval v. Gomez, 81 F.3d 891 (9th Cir. 

1996), found that “threats are relevant to consciousness of guilt,” and then instructed 

the prosecution to limit the testimony to ensure the jury would not learn why any of 

the witnesses were in court or whether they were in custody for any reason.

While Ortiz-Sandoval recognized that introduction of evidence of threats 

poses the risk of a jury convicting because the defendant is a “bad man,” the court 

also noted the threat in that case was “not particularly inflammatory or macabre” and 

that the district court gave a limiting instruction. Id. at 898. Here, the district court 
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gave a limiting instruction substantively identical to the one approved in Ortiz-Sandoval, and Wright admits that his statements were not “particularly menacing.”

“Under the abuse of discretion standard, the district court’s discretion cannot 

be reversed unless this court has a definite and firm conviction that the court below 

committed a clear error of judgment in the conclusion it reached upon a weighing of 

the relevant factors.” Parker v. Joe Lujan Enters., Inc., 848 F.2d 118, 121 (9th Cir. 

1988). Even if Wright is correct that his statements had minimal probative value and 

were not really threats, the district court’s decision to follow Ortiz-Sandoval was not

a “clear error of judgment.”

4. Finally, Wright argues that even if no error individually supports reversal, 

the cumulative weight of all the purported errors warrants a new trial when analyzed 

as a whole. Because we find his arguments on the individual issues meritless, we 

likewise find no cumulative error.

AFFIRMED.