United States of America v. DAVID PHILLIPS, AKA David John Phillips

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID PHILLIPS, AKA David John
Phillips,
Defendant-Appellant.
No. 18-50138
D.C. No.
2:17-cr-00498-FMO-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted June 10, 2019
Pasadena, California
Before: WARDLAW, BYBEE, and OWENS, Circuit Judges.
David Phillips appeals from his jury conviction for conspiracy to use
interstate commerce facilities in the commission of a murder-for-hire in violation
of 18 U.S.C. § 1958. Specifically, Phillips challenges the district court’s decision
to grant the government’s motion in limine to exclude any evidence relating to
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Phillips’ kidney disease.1 As the parties are familiar with the facts, we do not
recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court abused its discretion in excluding all evidence relating to
Phillips’ medical condition as irrelevant and unduly prejudicial. See United States
v. Torres, 794 F.3d 1053, 1059 (9th Cir. 2015) (stating the standard of review); see
also Fed. R. Evid. 402, 403. Phillips sought to rebut the government’s argument
that his muted reaction to his co-conspirator, David Suiaunoa, informing him of the
victim’s (staged) murder demonstrated that he previously entered into a murder-
for-hire agreement. The evidence of Phillips’ kidney disease was relevant to his
defense that he was fatigued and confused during this encounter. The evidence
was also relevant to Phillips’ assertion that he did not confront Suiaunoa, who is
much larger than Phillips and has a history of violence, because he feared that
Suiaunoa would assault him and dislodge the fistula device in his arm that aids
with dialysis, causing serious bodily harm. Any danger that the medical condition
evidence would generate sympathy for Phillips could have been dealt with by
sanitizing the evidence. See United States v. Boulware, 384 F.3d 794, 808 (9th
Cir. 2004).
However, the error was harmless because the jury had a substantial amount
1 In a concurrently filed opinion, we conclude that Phillips’ offer to
forgive a legally unenforceable debt satisfies the pecuniary value requirement of
§ 1958.

-- 2 of 3 --

3
of additional evidence to convict. See United States v. Stever, 603 F.3d 747, 754
(9th Cir. 2010) (explaining that a defendant must “show a likelihood that the
outcome would have been different if the material had been disclosed” to win
reversal of the conviction).
Phillips’ constitutional challenges also fail. The evidentiary exclusion did
not violate Phillips’ right to present a complete defense because the evidence was
not his only avenue to present his defense theory. See Torres, 794 F.3d at 1062-63
(determining that a defendant was not denied his right to present a complete
defense where “the district court did not preclude [the defendant] from proffering
an affirmative defense”). In addition, the district court did not deprive Phillips of
his right to testify in his own defense because Phillips could have testified, but
chose not to, and the evidentiary exclusion did not significantly impair his defense.
See United States v. Scheffer, 523 U.S. 303, 315 (1998) (stating that there is
constitutional error only if the exclusion of evidence “significantly undermined
fundamental elements of the defendant’s defense”).
AFFIRMED.

-- 3 of 3 --