United States v. Frank White, 681 F. App'x 589

In October 2014 Frank Lewis White was arrested; officers found a 9mm handgun under the driver’s seat of his car after he acknowledged marijuana in his pocket and a gun in the car.
White was charged under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm.
While in jail, White made a recorded phone call to his brother (with notice the call was recorded). During the call the brother said he had told White to leave the gun behind; White did not deny or dispute that statement and the brother spoke over him.
The district court admitted the recorded call as an adoptive admission under Fed. R. Evid. 801(d)(2)(B) over defense objection.
White was sentenced to 84 months (below the Guidelines range of 100–120 months). He appealed both the evidentiary ruling and the substantive reasonableness of his sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of recorded jail call as adoptive admission under Fed. R. Evid. 801(d)(2)(B)	White argued the tape should not be admitted because the court failed to adequately find he heard, understood, and had opportunity to deny the accusatory statement	Government argued the brother’s accusatory statement was heard by White, he had opportunity to deny it, and his failure to deny (with speech overlapping) was an adoptive admission	Court affirmed admission; trial judge made the necessary preliminary finding that an innocent person would normally be expected to deny, and sufficient foundational facts supported jury inference that White heard, understood, and acceded to the statement
Substantive reasonableness of below-Guidelines 84-month sentence	White argued the district court erred by comparing him to a hypothetical defendant with a different criminal history, making his below-Guidelines sentence substantively unreasonable	Government argued even if procedural errors occurred, the sentence remains substantively reasonable and would stand on remand	Court affirmed sentence as substantively reasonable; any procedural missteps would not change the outcome and the sentence fell within acceptable discretion

United States v. Alvarez, 358 F.3d 1194 (9th Cir.) (standard of review for evidentiary rulings)
United States v. Cruz-Mendez, 811 F.3d 1172 (9th Cir.) (review standards cited)
United States v. Moore, 522 F.2d 1068 (9th Cir. 1975) (adoptive admission requires court finding an innocent person would normally be induced to respond)
United States v. Monks, 774 F.2d 945 (9th Cir.) (upholding admission where defendant’s response was silence)
United States v. Carty, 520 F.3d 984 (9th Cir.) (sentencing reasonableness framework under § 3553(a))
United States v. Ellis, 641 F.3d 411 (9th Cir.) (substantive reasonableness review and remand principles)
United States v. Mohamed, 459 F.3d 979 (9th Cir.) (reasonableness review controls over formal ‘‘departure’’ label)