NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. DOMINIQUE MARQUIS MARTIN, AKA Domo, Defendant

- Appellant. No. 15

- 10497
D.C. No. 4:13

- cr - 00466

- JSW

- 2

MEMORANDUM *

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. MELVIN LANDRY, Jr., AKA New Hefner,

Defendant

- Appellant. No. 15

- 10502
D.C. No. 4:13

- cr - 00466

- JSW

- 1

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding Argued and Submitted September 12, 2017 Submission Vacated March 5, 2018 Resubmitted August 3, 2020 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

AUG 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Before: W. FLETCHER, OWENS, and FRIEDLAND, Circuit Judges. 1

Defendants Melvin Landry and Dominique Martin appeal their convictions and sentences for Hobbs Act robbery , 18 U.S.C. § 1951(a), and possession of a firearm during and in relation to a crime of violence, 1 8 U.S.C. § 924(c). Landry’s and Martin’s convictions arose out of the activities of a group of individuals , led by Landry, who allegedly robbed several homes and retail stores at gunpoint starting in 2011. This appeal relates to four of that group ’s alleged robberies : (1) the 2011 robbery of a McDonald’s restaurant by two men, one of whom pointed at the manager a gun that the manager described as “silvery or kind of black,” like the kind police use ; (2) the 2012 robbery of a Wal

- Mart customer service desk by three men, one of whom , according to witnesses, had a gun that was silver and had etching on it ; (3) the 2012 robbery of a different Wal

- Mart customer service desk ; and (4) the 2013 robbery of a third Wal

- Mart customer service desk by two men, one of whom pointed a gun at several employees that the employees later testified was brushed aluminum, large caliber, and not a BB gun or pellet gun.

1 This case was originally submitted to a panel that included Judge Kozinski and United States District Judge Mark Bennett . After Judge s Kozinski and Bennett retired, Judge s Fletcher and Owens , resp ectively, were drawn by lot to replace them

. See Ninth Circuit General Order 3.2.h. Judges Fletcher and Owens have read the briefs, reviewed the record, and listened to oral argument.3

Martin and Landry were arreste d and went to trial in the summer of 2015 on a slate of charges relating to the robberies . ( An alleged co

- conspirator, Rudolpho James, was also arrested, but pleaded guilty.) The government’s evidence at trial included surveillance footage, eyewitness testimony, fingerprint evidence, cell phone location data, and incriminating p ictures posted on Facebook and Instagram, among other evidence. Ultimately, as relevant here, Landry was found guilty of conspiracy to commit Hobbs Act robbery, three counts of Hobbs Act robbery, and three counts of possessing a firearm during and in rela tion to a crime of violence. Martin was found guilty of conspiracy to commit Hobbs Act robbery, four counts of Hobbs Act robbery, and three counts of possessing of a firearm during and in relation to a crime of violence. Landry and Martin were each sente nced to more than fifty years of imprisonment and five years of supervised release. Both timely appealed their convictions and sentences, and we affirm.
1. Viewed in the light most favorable to the prosecution, see United States v. Nevils , 598 F.3d 1158, 1163

- 64 (9th Cir. 2010) (en banc), the evidence at trial that Landry and Martin had stolen several thousand dollars in checks and cash from an international retail business, and that that business was forced to temporarily shutter its customer service counter as a result, was sufficient for a rational trier of fact to conclude that the robberies had at least a de minimis effect on interstate commerce as requir ed to satisfy the Hobbs Act’s jurisdictional4

requirement. See 18 U.S.C. § 1951(a); United States v. Rodriguez , 360 F.3d 949, 955 (9th Cir. 2004) (“Robbery of an interstate business .

. . typically constitutes sufficient evidence to satisfy the Hobbs Act’s interstate commerce element.”). The Supreme Court’s decisions in United States v. Lopez , 514 U.S. 549 (1995), and United States v. Morrison , 529 U.S. 598 (2000), are not to the contrary, and were decided before our decision in Rodriguez , so we would be b ound by Rodriguez in any event. See Miller v. Gammie , 335 F.3d 889, 899

- 900 (9th Cir. 2003) (en banc)

. 2. The district court did not err in concluding that Hobbs Act robbery constitutes a “crime of violence” under the force clause of 18 U.S.C. § 924(c). See United States v. Dominguez , 954 F.3d 125 1 , 1255 (9th Cir. 2020) (“In light of recent Supreme Court cases, we

. . . reiterate our previous holding that Hobbs Act armed robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A).”); see also United States v. Mendez , 992 F.3d 1488 , 1490

- 91 (9th Cir. 1993).
3

. The evidence at trial was sufficient to prove that the guns used in the robberies were “firearms ,” as that term is used in 18 U.S.C. § 924(c) and defined in
18 U.S.C. § 921(a)(3). Viewed in the light most favorable to the prosecution , the evidence that Landry and Martin had the opportunity and ability to obtain real guns, as well as the security footage and eyewitness and co

- conspirator testimony that Landry and Martin were carrying guns , allowed a rational factfinder to5

conclude that the guns at issue were real and were not toys or replicas

. See, e.g. , United States v. Garrido , 596 F.3d 613, 616

- 17 (9th Cir. 2010) (affirming the defendant’s § 924(c) conviction on the basis of video evidence and testimony from a victim who described a gun as looking like a “nine millimeter” and felt its cold metal pressed behind his ear , and victim testimony that the defendant had a “gun” that “looked real” ) ; United States v. Harris , 79 2 F.2d 866, 867

- 68 (9th Cir. 1986) (affirming the defendant’s conviction on the basis of surveillance photos and testimony from victims that the weapon was made of “gunmetal,” and “appeared to be either a .38 or .45 automatic with the hammer cocked,” and d escribing that evidence as “overwhelming [] ” (quotation marks omitted) )

. 4. The district court did not err by admitting evidence that Martin was found with a real rifle during a 2009 arrest , two years before the conspiracy allegedly began. Although this evidence was not “intrinsic” to the charges, see United States v. Anderson , 741 F.3d 938, 949 (9th Cir. 2013), the district court did not abuse its discretion in concluding that , when accompa nied by an appropriate limiting instruction, the evidence was admissible under Federal Rule of Evidence 404(b) to show that Martin had the opportunity and capacity to obtain a real firearm during the alleged conspiracy and to rebut Defendants’ arguments th at the guns used in the robberies could have been fake , see United States v. Beckman , 298 F.3d 788, 794 (9th Cir. 2002)

. United States v. Thomas , 321 F.3d 627 (7th Cir.6

2003), and McKinney v. Rees , 993 F.2d 1378 (9th Cir 1993), are not to the contrary . T he issue in both cases was whether the defendant’s previous possessions were relevant to prove possession or opportunity and motive to possess a weapon ( without regard to whether that weapon was real or fake)

— not, as here, whether the weapon the defendant had possessed was real. See Thomas , 321 F.3d at 634; McKinney , 993 F.2d at 1382

- 83

. Nor did the district court abuse its discretion in concluding that the probative value of such evidence was not substantially outweighed by a danger of unfair prejudice. See Fed. R. Evid. 403; Beckman , 298 F.3d at 794.
5. Even if the district court did err by admitting evidence of Landry’s arrest with a handgun in 2011 on t he grounds that the evidence was inextricably intertwined with the charged offenses , any error was harmless

. See United States
v. Torres , 794 F.3d 1053, 1063

- 64 (9th Cir. 2015)

. As with Martin’s 2009 arrest, the evidence could have been admitted under Ru le 404(b) to show ability and willingness to obtain a real gun around the time of the alleged conspiracy in order to rebut the argument that the guns used in the robberies were fake. And ample other evidence, such as fingerprints, cell phone location data , eyewitness testimony, surveillance footage, and the incriminating testimony of a co

conspirator, supported the government’s case.
T he district court did not err by admitting evidence of Landry’s 2013 arrest ,7

which led to the discovery of a small amount of marijuana, phones containing incriminating pictures , and a live round of ammunition , as intrinsic to the government’s case because such evidence was relevant to present a background of the alleged conspiracy

. 6. The district court did not plainly err by permitting a co

- conspirator to testify about Martin ’s and Landry’s gun use, because the co

- conspirator’s testimony was relevant to prove that Martin and Landry had the ability to use and in fact did use real fi rearms during the alleged conspiracy. The co

- conspirator’s trustworthiness was a jury issue.
7. The district court did not abuse its discretion in concluding that the government had adequately authenticated pictures found on Martin’s and Landry’s phones and on social media accounts associated with the ir names or birthdates

. The testimony about the origins of the pictures and accounts , the testimony of a Facebook custodian, the testimony of a co

- conspirator, and the contents of the photographs the mselves constituted sufficient proof that a reasonable juror could find them to be authentic

. See Fed. R. Evid. 901(a); United States v. Tank , 200 F.3d 627, 630

- 31 (9th Cir. 2000) ; United States v. Black , 767 F.2d 1334, 1342 (9th Cir. 1985)

. This eviden ce was relevant because it appeared to depict Landry and his co

conspirators with, among other things, guns , drugs, and large amounts of cas h,8

suggesting the ability to obtain guns during the period of the alleged conspiracy , and substantiating the government’s allegation that the racketeering enterprise had illegally obtained, laundered, and spent stolen cash

. And e ven assuming that some of the pictures were more prejudicial than probative, any error was harmless. Given the other evidence suggesting that Defendants had participated in each robbery

— surveillance photos, eyewitness testimony, cell phone location evidence,

co - conspirator testimony, and fingerprints

— it is not more prob able than not that the admission of the contested photographs materially affected the verdict. See
Torres , 794 F.3d at 1063

. 8. Although it may have been impermissibly suggestive for police to both deploy a lineup in which Landry was the only suspect with a mole and refresh a witness’s memory with photos of the crime itself, see United States v. Beck , 418 F.3d 1008, 1012

- 13 (9th Cir. 2005) , any error was harmless , because the jury saw surveillance footage during the trial, and could compare that footage to Landry himself, who sat before them for the duration of the trial

. 9. The district court did not err in denying Landry’s request for a hearing under Franks v. Delaware , 438 U.S. 154 (1978) , to consider whether the affidavit used to obtain a warrant for the phone found on his person was misleading

. Because Landry did not offer any evidence of the affiant’s mental state , the district court did not c learly err in finding that the affidavit did not contain purposefully or9

recklessly false statements or omissions

. See id. a t 171 ; see also United States v. Perkins , 850 F.3d 1109, 1115 (9th Cir. 2017)

. And even if the information omitted from the challenged affidavit

— that Landry was not the only person who p ossessed the phone

—

had been included, it would not have prevented the g overnment from establishing probable cause. See Franks , 438 U.S. at 155

- 56, 171

- 72

. 10. Th e jury instruction on the elements of aiding and abetting liability

un der 18 U.S.C. § 924(c) w as not plainly erroneous. It implemented the holding of Rosemond v. United States , 572 U.S. 65 (2014 ) , and to the extent our decisions prior to Rosemond imposed different requirements , they were overruled by Rosemond

. 11. Martin’s and Landry’s sentences are constitutional despite their length. We have previously rejected their contrary arguments. See United States
v. Harris , 154 F.3d 1082, 1084 (9th Cir. 1998) ( explaining that a sentence within the limits set by a valid statute may not be over turned as cruel and unusual on appeal ); see also United States v. Major , 676 F.3d 803, 812 (9th C ir. 2012) ( explaining that sentences of hundreds of years are not cruel and unusual under our precedent ) ; United States v. Washman , 128 F.3d 1305, 1307 (9th Ci r. 1997) ( rejecting the argument that 18 U.S.C. § 3553(f) deprive s defendants of their Fifth Amendment right not to testify in t heir own defense ).
AFFIRMED.