United States of America v. Joseph Wayne Attaway Ii

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH WAYNE ATTAWAY II,
Defendant-Appellant.
No. 20-10070
D.C. No.
1:15-cr-00272-DAD-BAM-3
Eastern District of California,
Fresno
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted May 13, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, MILLER, Circuit Judge, and RESTANI,***
Judge.
Joseph Wayne Attaway, II (“Appellant”) was convicted by a jury on three
counts related to conspiracy to distribute and distribution of methamphetamines,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
MAY 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846, and was sentenced to 204
months in federal prison. Appellant challenges his conviction and claims he was
denied a fair trial in violation of his due process rights based on improperly
admitted evidence in two forms: witness testimony regarding law enforcement
officials’ experience in gang-related assignments, and testimony describing the
arrests of Appellant’s alleged associates after a high-speed car chase.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review evidentiary
decisions for an abuse of discretion. United States v. Alvirez, 831 F.3d 1115, 1120
(9th Cir. 2016). We review for plain error, however, when an objection is not
raised before the district court. FED. R. CRIM. P. 52(b); United States v. Olano, 507
U.S. 725, 731–36 (1993). We affirm because the district court did not commit plain
error or abuse its discretion.
The district court properly admitted the testimony of law enforcement
officials regarding their gang-related assignments as relevant to their background
and qualifications. See United States v. Santiago, 46 F.3d 885, 889–90 (9th Cir.
1995) (holding there was no reversible error because the record does not indicate
that evidence was introduced “to condemn [Appellant] merely for affiliation with a
. . . gang”). The district court also properly admitted testimony about the arrests of
Appellant’s associates because the testimony made it more likely that Appellant’s
visits to their homes were in furtherance of his drug-trafficking scheme, and helped

-- 2 of 3 --

3
to explain why Appellant later sought a new drug supplier. Thus, the district court
made no “clear or obvious” legal error. Puckett v. United States, 556 U.S. 129, 135
(2009) (citing Olano, 507 U.S. at 734).
Furthermore, even assuming the challenged testimony was improperly
admitted, there is overwhelming evidence of Appellant’s guilt on the record,
including wiretapped conversations in which Appellant discusses a drug sale and
his efforts to find an alternative drug supplier. Thus, there is no “reasonable
probability” that admitting the testimony in question “affected the outcome of the
trial[,]” and so the district court did not commit plain error. United States v.
Marcus, 560 U.S. 258, 262 (2010).
Further, the district court did not abuse its discretion in admitting photos
identifying Appellant’s associates because the photos were relevant to confirming
who was arrested after the car chase and to connecting these individuals to the
addresses Appellant visited after each drug sale. See Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008); United States v. Abel, 469 U.S. 45, 54
(1984). Given the evidence of Appellant’s guilt on the record, even if the photos
were improperly admitted, this “nonconstitutional error” did not “more likely than
not affect[] the verdict.” United States v. Edwards, 235 F.3d 1173, 1178–79 (9th
Cir. 2000).
AFFIRMED.

-- 3 of 3 --