NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 12 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10425

Plaintiff-Appellee, D.C. No. 3:17-cr-0003-LRH-WGC

v.

RICKY CARTER, JR., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted December 18, 2018 San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and BLOCK,** District Judge.

Ricky Carter, Jr., appeals the district court’s judgment convicting him of

being a felon in possession of a firearm and sentencing him principally to 120

months’ imprisonment. We assume familiarity with the facts, procedural history,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. and issues on appeal. We affirm.

1. Carter’s conviction moots his claim that the district court’s decision to

have him restrained in the courtroom violated due process, except insofar as he

claims that the decision prejudiced the jury. United States v. Sanchez-Gomez, 138

S. Ct. 1532, 1542 (2018). That claim fails because there is no evidence that the

district court’s efforts to prevent the jury from seeing the restraints were

unsuccessful. Cox v. Ayers, 613 F.3d 883, 890 (9th Cir. 2010).

2. None of the five alleged instances of prosecutorial misconduct during

trial satisfies the standards for reversal on review for plain error. United States v.

Alcantara-Castillo, 788 F.3d 1186, 1190–91 (9th Cir. 2015). Officer Schaur’s

testimony that Carter provided his phone number during a booking interview did

not affect Carter’s substantial rights because the government also connected Carter

to the phone number by multiple other means. Arguing that Lessman had no

motive to lie did not constitute improper vouching, and acknowledging other

problems with her credibility did not mean that the government was knowingly

eliciting false testimony. Attacking the strength of Carter’s theory of defense was

proper, and asking Carter why he did not provide text messages corroborating his

theory did not improperly shift the burden of proof.

3. The affidavit supporting the search warrant application included

evidence that Carter was involved in the shooting of Julian Hamilton, and that

2 André Wagner—who was arrested in connection with the shooting—had spoken to

Carter by phone from jail, telling him to advise another person involved to flee.

That evidence was sufficient to create a “fair probability” that the phones found on

Carter’s person and in his car at the time of his arrest would contain evidence of

other communications regarding the shooting. United States v. Flores, 802 F.3d

1028, 1043 (9th Cir. 2015) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

The district court was not required to hold a hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978), before denying the motion to suppress. Although

an earlier police report noted only that Wagner spoke about the shooting to an

“unidentified male,” the affidavit identified Carter as that interlocutor. Carter does

not dispute that he was the person on the call, and so fails to make a “substantial

preliminary showing” that that statement in the affidavit was false, let alone that

the alleged falsity was intentional or reckless. United States v. Meling, 47 F.3d

1546, 1553 (9th Cir. 1995). We agree with the district court that the remaining

misstatements and omissions claimed by Carter were not material to the probable-

cause analysis. See id.

AFFIRMED.

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