United States v. Smith

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 25-3024 D.C. No. Plaintiff - Appellee, 3:23-cr-00017-SLG-KFR-1 v. MEMORANDUM* CORNELIUS LEON WILLIAM SMITH, Defendant - Appellant.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, Chief District Judge, Presiding Submitted August 12, 2026** Anchorage, Alaska Before: CALLAHAN, BEA, and BUMATAY, Circuit Judges.

The government charged Cornelius Leon William Smith (“Smith”) in a superseding indictment with one count of dealing firearms without a license in violation of 18 U.S.C. §§ 922(a)(1)(A), 923(a), and 924(a)(1)(D) (“Count 1”); one

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. count of transferring a firearm to an out-of-state resident in violation of 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(D) (“Count 2”); and ten counts of making a false statement during the purchase of a firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2) (“Count 3-12”). A jury convicted Smith on Counts 1 and 3-12, and acquitted him of Count 2. Smith appeals his conviction. We have jurisdiction under 18 U.S.C. § 1291, and we affirm.

1. Smith first argues that the district court erred by admitting limited criminal history and conduct evidence of his cousin, Andrew Williams, and by admitting Exhibits 11 and 31. We review the district court’s evidentiary rulings of relevance and rulings under Federal Rule of Evidence (“Rule”) 403 for abuse of discretion. United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004); Rearden, LLC v. Walt Disney Pictures, 152 F.4th 1058, 1066 (9th Cir. 2025).

“Relevant evidence is admissible,” except as otherwise provided by the Constitution, statute, or the Rules of Evidence. Fed. R. Evid. 402. Relevant evidence is any evidence that has a tendency to make a fact of consequence more or less probable than it would be without the evidence. Fed. R. Evid. 401. The “basic standard of relevance . . . is a liberal one.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587 (1993). “Deciding whether a fact is ‘of consequence in determining the action’ generally requires considering the substantive issues the case presents.” Crawford v. City of Bakersfield, 944 F.3d

2 25-3024 1070, 1077 (9th Cir. 2019) (quotation marks and citation omitted).

Under Rule 403, a court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. “Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.” United States v. Haischer, 780 F.3d 1277, 1282 (9th Cir. 2015) (quotation marks and citation omitted).

a. Smith first argues that the district court abused its discretion in admitting limited criminal history and conduct evidence of his cousin to whom he unlawfully sold firearms. Smith also argues that even if this testimony was relevant, its probative value is substantially outweighed by its prejudicial effect.

The relevance issue turns on whether Andrew Williams’ criminal history and conduct had any tendency to make it more or less likely that Smith knew he was selling firearms to individuals who would possess them or use them unlawfully. The answer is yes. The criminal history and conduct of a family member to whom Smith directly sold firearms does tend to show that Smith knew he was selling firearms to at least one individual who could not lawfully possess them.

The next question is whether the probative value of this testimony is

3 25-3024 substantially outweighed by its prejudicial effect. Fed. R. Evid. 403. It is not.

Smith faults the district court for failing to “wrestle” with the issue of unfair prejudice, but even if a district court does not explicitly mention Rule 403, the court “will uphold admission of the evidence when it is clear from the record that the court implicitly made the necessary finding.” United States v. Ramirez- Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992). Here, the record demonstrates that the district court carefully considered the parties’ Rule 403 arguments, applied the correct law, and applied that law in a reasonable and appropriate fashion— allowing the government to present limited criminal history and conduct evidence of Smith’s cousins while excluding the rest.

b. Smith then argues that the district court erred in admitting government Exhibit 11, a photo depicting a gloved hand holding a Glock pistol in the back of a car with miscellaneous items surrounding it, and in admitting government Exhibit 31, a photo of a Glock pistol with an extended magazine on the floorboard of a vehicle. According to Smith, this evidence was substantially more prejudicial than probative and thus ran afoul of Rule 403. We disagree.

As to Exhibit 11, Smith provides little by way of substantive argument, implying only that this photo somehow amounted to the introduction of prohibited third-party criminal conduct evidence. This argument falls flat. Exhibit 11 does not violate the district court’s evidentiary order regarding third-party criminal

4 25-3024 conduct evidence. Rather, the photo demonstrates that the gun depicted was, in fact, recovered. Indeed, this was the very reason why the government offered this exhibit.

As to Exhibit 31, Smith’s primary argument is that the admission of Exhibit conflicted with the district court’s other ruling prohibiting the government from showing the jury the Glock switch and thus was error. Smith cites no authority for this argument, and it is belied by the record: the district court’s admission of Exhibit 31 and exclusion of the switch are not in conflict. The district court permitted the introduction of Exhibit 31 despite it not covering the extended magazine because it was the only evidence of that firearm. The physical evidence of the Glock with the switch was different because the switch could easily be covered, maintaining the probative value of the recovered Glock while eliminating any unfair prejudice. Smith provides no legal basis to disturb this reasoning, and certainly no basis for this court to find an abuse of discretion.

2. Next, Smith argues that the district court erred by denying his motion for a mistrial following a government witness’s improper and irrelevant testimony.

We review the district court’s denial of a motion for a mistrial for abuse of discretion. United States v. Alahmedalabdaloklah, 94 F.4th 782, 837 (9th Cir. 2024), cert. denied, 145 S. Ct. 770 (2024). Smith argues that the district court erred in denying his motion for a mistrial following Agent King’s irrelevant

5 25-3024 testimony regarding “drug residue” on a digital scale found in Smith’s house.

Again, we disagree.

United States v. Lemus, 847 F.3d 1016 (9th Cir. 2016) is instructive. In Lemus, the Ninth Circuit held that “[a] cautionary instruction from the judge is generally sufficient to cure any prejudice from the introduction of inadmissible evidence, and ‘is the preferred alternative to declaring mistrial when a witness makes inappropriate or prejudicial remarks; mistrial is appropriate only where there has been so much prejudice that an instruction is unlikely to cure it.’” 847 F.3d at 1024 (quoting United States v. Escalante, 637 F.2d 1197, 1202–03 (9th Cir. 1980)). The court went on to explain that “[a] decision to not declare a mistrial will be reversed only if the improper comment, viewed in the context of the entire trial, more likely than not materially affected the verdict.” Id. The improper comment here does not rise to that level.

Here, when answering the government’s question on direct examination, Agent King stated: The primary thing we found was a lot of firearms boxes, and they were all empty. Firearms -- like the manufacturer’s box for the firearms. And we seized --we found and seized a cell phone, a little electronic digital scale that had drug residue on it.

Though unquestionably irrelevant, the testimony did not likely affect the jury’s verdict when viewed in the context of the entire trial. That the jury acquitted

6 25-3024 Smith on Count 2 of the indictment “indicates that the jury was able to weigh the evidence without prejudice” and did not reach their decision simply because they thought Smith was a drug dealer. United States v. de Cruz, 82 F.3d 856, 863 (9th Cir. 1996). And more importantly, the district court struck the offending testimony and provided an appropriate curative instruction, which it repeated in the jury instructions. “When the court strikes testimony and gives . . . an instruction [to disregard it], there is a strong presumption that the jury has followed the court’s instruction.” United States v. Pavon, 561 F.2d 799, 803 (9th Cir. 1977).

Accordingly, the jury here is presumed to have disregarded the drug residue testimony and followed the district court’s curative instruction. Smith presents no compelling argument to the contrary and provides no basis to rebut this “strong presumption.”

AFFIRMED.

7 25-3024