NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 7 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30153

Plaintiff-Appellee, D.C. No. 3:19-cr-00059-SLG-MMS-1 v.

ULYSSES EDWARD WARD, AKA Uly, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding

Submitted October 5, 2021** Seattle, Washington

Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.

Defendant Ulysses Edward Ward was convicted of one count of distribution

of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Ward

challenges the district court’s admission of a confidential informant’s audio and

video recordings into evidence over defense counsel’s Confrontation Clause

* 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). objection. Ward also contends that the district court erred by not finding that his

Brady rights were violated when the prosecution did not reveal the confidential

informant’s identity or call the informant to testify. Brady v. Maryland, 373 U.S. 83

(1963). Because the parties are familiar with the facts, we do not recount them here,

except as necessary to provide context to our ruling. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

This court reviews de novo alleged violations of the Confrontation Clause.

United States v. Cazares, 788 F.3d 956, 972 (9th Cir. 2015). The Confrontation

Clause prohibits admitting out-of-court testimonial statements without the

opportunity for cross examination, but “does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted.”

Crawford v. Washington, 541 U.S. 36, 53–54, 59 n.9 (2004). Here, the district court

properly admitted the confidential informant’s statements along with a jury

instruction to consider these statements not “for the truth of the matter asserted,” but

rather only for context. Because the confidential informant’s statements were not

offered for their truth, “the admission of such context evidence does not offend the

Confrontation Clause.” United States v. Barragan, 871 F.3d 689, 705 (9th Cir.

2017) (quoting United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006)).

Ward also contends that his Brady rights were violated because the

government did not disclose the identity of the confidential informant before trial or

2 call the informant to testify. Because Ward did not raise this Brady claim in the

district court, we review “to determine if [its] denial would constitute plain error

affecting the appellant’s substantial rights.” United States v. Guzman-Padilla, 573

F.3d 865, 890 (9th Cir. 2009).

To bring a successful Brady claim, “(1) the evidence at issue must be

favorable to the accused, (2) the evidence must have been suppressed by the State,

and (3) the suppression must have been prejudicial.” Comstock v. Humphries, 786

F.3d 701, 708 (9th Cir. 2015). Here, the government did not suppress evidence

because it has a limited privilege to withhold the identity of confidential informants.

Roviaro v. United States, 353 U.S. 53, 59–60 (1957); United States v. Sanchez, 908

F.2d 1443, 1451 (9th Cir. 1990). The defendant bears the burden to prove the need

for disclosure of a confidential informant. Sanchez, 908 F.2d at 1451. Ward

contends that the government suppressed evidence because “by not naming, or

calling, the witness,” it avoided pretrial litigation about whether the identity of the

informant should be disclosed. However, Ward’s counsel could have raised a

motion for disclosure, especially because Ward received the confidential informant’s

audio and video recordings before trial. The government’s nondisclosure of the

confidential informant’s identity does not constitute plain error affecting his

substantial rights.

The judgment of the district court is AFFIRMED.

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