United States v. James W. Alverson

ADAMS,* and FLETCH Before SNEED ER, Judges. Circuit * Adams, The Honorable Arlin M. Judge Circuit, sitting by Circuit the Third designation.

FLETCHER, Judge: which the Circuit Government contends was de- Nancy fendant’s residence. Alverson was appeals Defendant Alverson both his con- present at the trailer At during the search. possession viction four counts of of un- search, Agent conclusion of the Deal guns registered machine in violation of 26 weapons, including seized several three ma- (1976) 5861(d) and his sentence. § U.S.C. guns. chine employee Accuracy An Defendant contends that evidence guns Gun Store testified that these were of insufficient his sustain conviction. He type the same as those had Alverson shown challenges also raises several to his sen- previous day. him jury A found Alver- We jurisdiction tence. note under 28 U.S.C. guilty possession son on four counts of (1976). affirm We his conviction but § unregistered guns, machine one count for vacate his sentence and remand the case for each of the weapons three seized at the resentencing judge. before different home, Thomp- trailer one count for the gun son left at the store. I 8, 1980, On December the district court FACTS years sentenced Alverson five on to 9, 1980, July Alverson was indicted on each the possession. four counts of 7-9, and tried on Testimony October stated, then “the imposed sentence as 29, 1980, revealed that on June James Al- to Counts consecutively is to run verson, accompanied by Nancy Alverson, with the on sentence Count 1.” On Decem- Accuracy the entered Gun Store in Las ber the judge, to purporting correct Vegas. requested Thomp- He to leave a sentence, ambiguity in the resen- gun son .45 caliber machine for sale on appellant teneed to five years on each store, consignment. leaving to Prior the count, with each run sentence to consecu- defendant the gun dismantled machine tively. The timely defendant filed a appeal replaced one part with The part another. of his conviction and his sentence. “disconnect,” was identified as a which pre- gun firing vents a from more than one shot II per function trigger. Nancy of the Alver- son signed for the Thompson left on con- OF SUFFICIENCY THE EVIDENCE signment at the store. a Alverson took Defendant Alverson’s contention that employee store to his automobile to show there was insufficient evidence to sustain weapons him three other he that had left his conviction two questions. raises factual his ear. First, did the prove Government that the Thompson .45 caliber was a store, After the machine defendant left the the gun 5845(b) (1976)? as defined in 26 manager store U.S.C. § contacted Bureau the of Al- Second, cohol, did the Tobacco, prove Government defend- and Firearms. Federal possession ant’s agent constructive of the responded James Deal other to the call and weapons three the seized in a seized .45 search of the Thompson. caliber The fol- home alleged trailer to be lowing day defendant’s resi- Alverson to returned the store dence? and demanded Thompson. return of the

Agent Deal was notified promptly re- reviewing sufficiency In the of the evi- to turned the weapon. store with the A dence, an appellate court must determine employee store returned Thompson to whether, viewing after the evidence in Alverson, who was after taking arrested light prosecu- most favorable to possession of the gun. tion, any rational trier of fact could have While en route Vegas Las Federal found essential elements the crime Building, defendant admitted that he beyond had a reasonable This doubt. familiar other firearms at his residence. gives Based on play responsi- standard full information, Agent Deal a bility fairly secured of fact trier to resolve search warrant and searched trailer weigh home conflicts in testimony, évi- prevent weapon was to inferences disconnect reasonable dence, to draw firing fully automatically. facts. He ultimate also facts to from basic Thompson “probably” that testified 307, 319, 99 Virginia, 443 U.S. v. Jackson fully automatically fire it had would if (1979) (em 61 L.Ed.2d S.Ct. hump on which the had been disconnect omitted). Ac (citation original) phasis in Finally, down.” the Government’s “filed Buras, cord, testified that a “shaved off” discon- expert 1980); Kipp, (9th Cir. nect, conjunction polished with the interi- curiam). 1980) (per actually on the or surfaces he observed Weapon Thompson .45 Caliber A. The fully Thompson, “would convert into au- 5845(b) 26 defines a “ma- of Title had (3) Defendant the knowl- tomatic.” shoots, weapon gun” “any as chine edge weapons to convert semi-automatic readily shoot, can be restored designed to automatic, previ- done fully had so shot, shoot, automatically more than one A(4) gun employee store ous occasions. single reloading, by a func- without manual appellant gave, testified that as a reason trigger.” argues that Alverson tion having Thompson, sign his wife for proof insufficient the Government offered spent the fact that “he had months in weapon Thompson fit .45 caliber Lompoc possession gun.” of a machine disputes No one this definition. evidence, a From this rational trier of fact Thompson, in the in which it was condition doubt, beyond could a reasonable conclude* gun store, did fire at the “more left “readily re- Thompson could be single shot ... a function of than one automatically.”1 stored shoot contends, trigger.” the The Government however, proves that its evidence either Constructive Possession the Other B. gun “readily restored to that the could be Weapons gun the automatically” or that did shoot automatically function when Alverson Possession of firearms in violation of brought gun it to the store and before he 5861(d) [proved by] section “need not be replaced the disconnect. possession, may exclusive actual but be [proved by] joint posses constructive following was ad The evidence Kalama, 549 sion.” United States v. F.2d brought (1) duced: when defendant first Cir.), 594, denied, cert. store, weapon the he stated that he (1977). 51 L.Ed.2d 564 S.Ct. just firing his had it that son been and “ posses ‘In order to establish constructive shooting “while his son was it he held down sion, government produce the must evi too trigger long.” the This statement dominion, or showing ownership, dence con only a weapon makes sense in reference to prem itself or trol over the contraband the per that fires more than one shot function in is ises ... which contraband concealed.’ trigger. (2) presence gun In the . . . and control over employees, store removed the [D]ominion [defend defendant residence, guns own which in the gun replaced it disconnect ant’s] found, a were is sufficient basis for “you Thompson] because don’t want [the jury’s possession.” inference of constructive this,” like or “it The was fixed.” second Smith, 591 in it United States v. disconnect differed from first that 1979) (quoting a hump “had on it.” A Government United States v. smaller 1974)).2 expert Ferg, firearms testified that function 916-17 Alternatively, jury residence, every could have concluded session item in the see Unit Craven, fully Thompson from the evidence that was ed denied, Cir.), brought cert. 414 U.S. automatic when the defendant first (1973), gun we need not address that L.Ed.2d into the store. only argues issue here. Alverson that trail residence; dispute proof particular residence that er not his he does not While that was provide might always if trailer his resi defendant suf- the conclusion that was dence, proved pos- ficient establish has his con- evidence to constructive Government argues The that the Govern- III defendant fails to show that resi- ment’s evidence THE SENTENCING CLAIMS weap- dence in the three additional ultimately The district sentenced court ons were was his. seized imprisonment years defendant to five possession, each of four counts with the Government’s shows The evidence consecutively. sentences to be Al- served agents that admitted to defendant federal raises objections verson three to this sen- following arrest four or his “that he had First, argues Congress tence. he that did five at more firearms his residence.” 5861(d) sepa- not intend section authorize agents for a then secured search warrant rate consecutive sentences each of Mojave trailer at Road. The 1286 South possessed simultaneously. several firearms only direct evidence of defendant’s address Second, argues defendant the district record, Vegas was an the Las Met official jeopardy court violated the double clause ropolitan Department’s Police “convicted purported clarify when it its persons appel lists questionnaire,” which ambiguous Finally, sentence. defendant Road, Mojave lant’s address 1286 South that he be contends must resentenced be- however, space weapons, 131. The were cause district court communicated with space seized in trailer at 121. The agent prior sentencing. a federal to final points to circum Government additional objection We consider each turn. space stantial evidence that the trailer at was,' fact, residence. Alverson’s Multiple Under A. Sentences First, Nancy present Alverson was in the 5861(d) argues defendant that a con stores, weapons purchased were in her weapon pos viction and sentence for each addition, name at times. In those witnesses impermissible.3 sessed is This court has no referred Nancy to defendant as Alverson’s general authority to review sentences so Finally, husband. the defendant showed to long as the sentence conforms to statute. store, employee gun day an of the on he 1371, 625 Wylie, United States v. F.2d 1379 Thompson consignment, left the for sale on 1980), 1080, (9th Cir. 449 cert. denied U.S. weapons similar to those later seized at the 863, (1981). 804 66 L.Ed.2d The trailer. issue, then, statutory interpreta is one of Congress separate tion: did authorize pun This and other have court circuits found ishment for each of several firearms simul similar evidence sufficient to an sustain in- taneously possessed place? at the same possession. ference of constructive See LaGue, 151, United v. States 472 F.2d 152 Two circuits have this question addressed 1973); Smith, (9th Cir. United States v. 591 Congress and concluded that intended each F.2d at a 1106-07. We find that rational prosecution firearm to be a unit of under trier of could beyond Tarrant, fact conclude rea- 5861(d). section United States v. 701, (5th 1972); sonable doubt from this evidence that Al- 460 F.2d 704 Cir. Sanders v. 412, possession States, (10th verson had constructive of the United 441 F.2d 414-15 weapons denied, 846, 147, Cir.), seized at the trailer. cert. 92 404 U.S. S.Ct. weapons Jones, 676, possession (9th structive found v. States 1973); 487 F.2d 679 Cir. Smith, there. United 591 States v. F.2d (5th 1979). 1108 Cir. object being does Defendant not possession. to tried on See, e.g., multiple counts of United

347 (1971). implementation and effective interpret 82 To stat- tax of 30 L.Ed.2d Tar scheme. United States v. wording statutory of ute, “must look to the we rant, ..., reasons, 460 at these statutory violated the overall F.2d 704. For provision scheme, legislative history.” properly we hold defendant States, v. United 623 57 for each firearm Brown prosecuted sentenced omitted); 5861(d). 1980) (footnote possessed he in violation of section Cir. Clements, v. Cir. 471 F.2d Jeopardy B. Double

1972). When the district sentenced 5861(d) that section ex We conclude stated, defendant, he im- sentence “[t]he presses unambiguous congressional in 2, 3, posed as to Counts is to run prosec of tent to make each firearm unit consecutively with the sentence on Count First, ution.4 the statute states “[i]t Later, prosecutor “[cjould asked 1.” any person (d) for to shall be unlawful — I clarify you the record? believe sentenced possess a firearm . . . .” receive 1, 2, 3, years. to and 4 five I’m not as 5861(d) (1976) added). (emphasis U.S.C. § sure the record is clear as to which counts Use of the article “a” stands marked run consecutive and which concurrent.” weapons in other stat language contrast 2, 3, judge responded, to Counts “[a]s interpreted preclude have utes that been 4, they consecutively run with Count object prosecution each of the offense. later, days 1.” Three recalled the Brown, v. Compare United States and, defendant the court after acknowl- with Sanders v. United (use “any”) original edging about sen- confusion States, (use “a”). 414-15 F.2d at tence, set it aside and resentenced defend- Second, statutory scheme cor overall years ant to on of the four counts five each reading 5861(d). our of section roborates with sentence each count to run Brown, v. See United States 623 F.2d at 57 consecutively preceding to that on the 5861(d) “is n.1. have held that section We re- argues count. The defendant power Congress valid exercise of the sentencing punishment enhanced his in vio- Tous, United States 461 F.2d tax.” jeopardy lation of double clause. curiam); accord, 1972) (per Petrucci, Not every change in an denied, cert. 1973), jeopardy 94 sentence violates the double (1974). example, circum S.Ct. L.Ed.2d 287 clause. For under certain stances, 5861(d) part regulation illegal is a of the web of correction of an sentence aiding pro jeopardy, tax double even if the enforcement the transfer does violate United corrected sentence increases the punish visions section 5811 Title Ross, Connolly, 1144, States v. ment. United States v. (5th 458 F.2d 1145 618 F.2d denied, cert. 868, 167, 553, 1980) (sentence Cir.), (9th 409 93 555 Cir. in U.S. S.Ct. n.8 Unit (1972). statutory minimum); 118 5811 levies meet 34 L.Ed.2d creased to Stevens, ed States v. 1360, tax F.2d 1362 & separate on “each firearm transferred.” 548 denied, n.8, Cir.), cert. 5811(a) (1976). (9th 26 Possession of 1363 430 U.S. § U.S.C. 1666, 975, unregistered (1977) 97 each firearm therefore de 52 L.Ed.2d 369 S.Ct. (sentence prives government separate plea agree of increased to meet tax. prosecution unregis ment). for each This rule holds even where the de begun original weapon encourages fendant has to serve payment tered Bullock, denied, arising (5th Cir.), F.2d Defendant relies on cases under 18 615 1082 cert. (1976 957, 367, 922(h)(1) (1976) 1202(a)(1) 449 U.S. 101 S.Ct. 66 L.Ed.2d 223 §§ U.S.C. (1980) 1202(a)(1) argue (§ App.); App.) should not United States v. that each firearm be Mason, (4th 1979) prosecution. argument F.2d a unit of Defendant’s is 611 49 Cir. (§ 922(h)(1)). dealing 5861(d) do it relies on cases We not find section erroneous because See, ambiguous e.g., similarly ambiguous. an See Albernaz v. United with statute. United States, 333, 1137, Hodges, (5th 1980) U.S. States v. 628 F.2d 350 Cir. 450 101 S.Ct. 67 L.Ed.2d 922(h), App.); (1981). (§§ 1202(a)(1) States 275 United v. 348 Stevens, met to dis- judge

sentence. United v. 548 Tobacco with district States Eighth The Circuit 1362-63. cuss defendant’s case. The discussion in- recently illegal that a sentence is indicated the fact that the defendant was a cluded ambiguous that it if is so fails reveal suspect investigation. in a homicide This meaning certainty.” “with United its fair meeting any to de- occurred without notice Moss, 171, 175, 614 F.2d 176 n.4 States v. not known to him until fendant was 1980) v. (8th (quoting Cir. United States sentencing.6 after second The defend- 156, 360, 363, 269 Daugherty, U.S. Agent parte ant claims that ex com- Deal’s 157, (1926)). 70 L.Ed. 309 Correction of an judge requires munication with the resen- illegally ambiguous not vio sentence does tencing. jeopardy initial late double because the am biguous sentencing, judge appro Before may sentence is of no effect. United “a Solomon, 848, (7th States v. 468 F.2d 851 priately an inquiry scope, conduct broad in denied, 986, 1972) cert. 410 93 Cir. U.S. S.Ct. largely unlimited either as to the kind of 1513, (1973); 36 v. Scarponi L.Ed.2d 182 see consider, may information he or the source States, 950, United 313 F.2d 953 Cir. may from which it come.” United States v. 1963). agree may We that a sentence be Tucker, 443, 589, 446, 591, 92 S.Ct. U.S. illegal by ambiguity virtue of its and that (1972); accord, 30 L.Ed.2d 592 United correction such a sentence not impli does Ferreboeuf, v. States cate jeopardy. double 1980), denied, Cir. cert. original The defendant’s sen (1981). S.Ct. 67 L.Ed.2d 368 ambiguous. tence prosecutor’s was re so, Even there are constraints on the quest for clarification stemmed from his process through judge which the trial deter as to uncertainty meaning. its Unfortu example, mines sentence. For sen nately, response to the clarification re judge tence will be vacated if the con quest simply repeated the ambiguity. It is information,” sidered “false or unreliable if possible to tell whether the defendant “demonstrably the information was made was sentenced to a maximum of ten aor basis for sentence.” Farrow v. years. of twenty maximum Under these States, 580 F.2d original circumstances we that the hold sen (en 1978) banc); see illegal; correction, Con subsequent tence was its therefore, forte, permissible.5 (9th Cir.), cert. denied, 449 U.S. S.Ct. C. Ex Parte Communications (1980). L.Ed.2d In United Wolfson, 1980),7 634 F.2d 1217 Agent Prior to resentencing, Deal Alcohol, Firearms, Bureau of required resentencing court where dis- 5. The that fact we find the district court’s cor- of the district court. note We also permissible (1) rection of its sentence does Government concedes in its brief that approve occurred, not mean that alleged parte the district ex communication sentencing procedures court’s in this A (2) case. the communication involved the fact obligated give intelligible trial suspect the defendant was a in a homicide this, sentence. Where he or she fails to do Thus, investigation. regard- while the affidavit speedy may correction of the error avoid the ing parte the ex communication did not meet necessity resentencing but it does not erase requirements Fed.R.App.Proc. the technical the fact has been careless and 10(c), rely exclusively we do not on the affida- unnecessary perhaps has created confusion parties acknowledge because vit both the two expectations. created false disposition essential facts relevant to our of the parte ex communication issue. The Government contends this that court we consider defendant’s claim on merits its argument should not consider defendant’s be- possible rather than await review in subse- depends cause it on material outside the record quent post-conviction proceedings. yet and the because district court has not had opportunity an to consider the issue. We note sentencing the Wolfson was decided after regard- that the affidavit of defendant’s counsel today. Wolfson, review United States v. ing parte the ex communication is contained in (9th 1980). F.2d Cir. by the record to this the transmitted court clerk were of these factors imposed. Both tence parte ex communica- court received trict Dubrofsky, decision in to the court’s bearing on the crucial prosecution from the tion re- precludes improp- absence here therefore that “it is their we held There sentence. make, Dubrofsky rationale. or for the on the to liance prosecution the er for an ex prosecution, the court to receive persuasive basis Because there is no sen- bearing on the communication parte Wolfson, we hold distinguish to on which in the rule We find Id. at 1221. tence.” case, ex prohibiting that the rule of controlling in this case. Wolfson prosecu the between parte communications three bases offers The Government sentencing judge, applies here the tor and Wolfson, none of distinguishing agent the case communication with First, the Government persuasive. are resentencing. requires parte communication that the ex points out resentencing would Ordinarily came, prosecutor the not from this case in judge. This circuit the same district be Wolfson, agent. from the case but as in however, that in “unusual cir recognizes, between the difference do not find We resentencing before a differ cumstances” of significant; the interest sources these necessary. United States judge may ent be agent the case is prosecutor the both Larios, 943-44 Cir. v. 640 F.2d the de to the interest of directly adverse Arnett, 1981). v. In United States fendant. 1979), we articulated Cir. argues next The Government deciding consider in wheth three factors to contained in presentence report the because appropri resentencing by judge a new is er conveyed to information the same substance “(1) original judge the would ate: whether communication, parte judge in the ex reasonably expected upon remand to be prejudiced. Both has not been defendant difficulty putting substantial in out have parte the ex report and presentence previously expressed views his or her mind the defend indicated that communication or findings determined to be erroneous ongoing homicide suspect in an ant was a (2) rejected, must be on evidence that based sentencing investigation. At pre reassignment is advisable to whether judge disclaimed on December justice, (3) appearance serve contained in information reliance on this waste reassignment would entail whether made no report. presentence any duplication proportion out of communication, parte ex mention fair preserving appearance gain however, sentencing. We de at the second (quoting F.2d at 1165 ness.” 628 this communica speculate whether cline 8, 10 1977) Robin, (2d Cir. v. judge. any In any effect on the tion had banc)). two of these factors (en The first event, prior find the disclaimer we do not equal importance, United States v. are of com subsequent parte ex as to the effective 1980); Ferguson, 624 F.2d munication. need be only one of the first two factors argues that Finally, the Government Wolfson, v. present. United States rule of United States ease falls within the However, countervailing val F.2d at 1222. 1978). Dubrofsky, 581 F.2d 208 efficiency feasibility can judicial ues of require Dubrofsky this court refused In appearance outweigh concerns for though the district resentencing even reassignment would entail “when fairness report derogatory confidential considered a proportion out of duplication waste and the defendant. was not available to appearance gain preserving Dubrofsky inapposite in this Id. at 215. Ferguson, 624 fairness.” Here, case, sentencing judge, however. at 83-84. parte ex in- receiving derogatory after case, in Wolf- In this much as formation, explained his refusal to neither a new son, resentencing before information, we find nor cited other in- disclose appearance necessary preserve judge sen- primary basis for the as the formation present. er “unusual circumstances” are I judge justice. Although here that, relating ambiguity, by invoking language an resentencing to remove realize ambigu- i.e., interprets the “the sentence second of these corrected to the criteria — longest impose the sentence majority sentence to appearance justice” pur ous —the intervening im- In view of possible. following v. Wolf ports to be with the parte ex communication proper son, 1981). Cir. justice is served judge, appearance Nonetheless, largely because Larios was de judge for resentenc- referral to another by Wolfson, analysis the elaborate cided after fair- view, consideration of ing. In our this to be employed appear in Larios would any duplication of effort. outweighs ness appropriate present in the case than more complex; nor are the factors The case is not employed in approach Wolfson. resentencing difficult. especially in involved large part on the My concern centers vacate the sentence Larios, of the three criteria set forth in first resentencing by case anoth- remand the judge namely, “whether the could judge.8 er put of his reasonably expected be out previously expressed findings views or mind CONCLUSION subsequently found to be errone- that were affirmed; is his Defendant’s conviction case, ous,” In this the fact of Larios and the case is remand- sentence is vacated in a mat- Alverson’s involvement homicide resentencing conformity with this ed for not, cases, improperly under the ter was opinion. judge by way presen- of a submitted to the tencing report. agree improp- I that it was ADAMS, Judge, concurring and Circuit agent for the to discuss this matter ex dissenting. er parte judge. agree with the trial I also Judge opinion by I concur in the fine that, know whether the because we do not respects except for the last Fletcher in all provided judge trial relied on information mandates, when this case is portion which by agent, there should be a resentenc- court, that a new returned district However, ing. absolutely there is no indi- resentencing. judge assigned be I anything brought to cation that in fact was join for two main cannot in this directive judge by agent the trial attention of First, it at reasons. I consider variance know, judge already that the did not Second, with the cases in this Circuit. even way prejudice would in him and cases, some ap- it would aside from decided prevent imposing appropri- in the of a com- his sentence pear inappropriate, absence nothing I do not believe that pelling ately. Certainly, reason—and there is compelling rea- the record here contains to indicate that the trial record assigned this matter to be son—for something by parte the ex commu- learned judge. appellate court to new trial nication that he should not have known. Moreover, gained he even had such knowl- states, the Ninth majority As the Circuit edge, nothing there is on this record to providing rule for remand to a new might prejudiced he was in fact indicate circumstances,” “unusual Unit reserved for prejudiced by knowledge. such In this be Arnett, 1162, 1165(9th 628 F.2d ed States v. connection, it is instructive to consider 1980). According to United Cir. Tucker, Larios, 1981), United States 640 F.2d Cir. (1972), 30 L.Ed.2d 592 where the analyzed and then S.Ct.

three criteria must be Supreme Court remanded for reconsidera- making a determination wheth- balanced in twenty years 8. We the district court’s December total sentence in excess of with note resentencing except jeopardy. United is valid for the out a violation of double Rosa, parte improper of ex com- States v. Munoz-Dela court’s consideration States, Moreover, 1974); Kennedy is no v. United munications. the defendant 1964). longer custody. Upon in the court’s resentenc- therefore, ing, receive a the defendant cannot judge adequate sentence when to trial tion of a the district would seem direct the de explicitly judge resentencing took into account two of whether the consider convictions, prior assigned which were la judge. fendant’s should be to a new constitutionally to be inval ter determined respectfully I dissent Court, nonetheless, Supreme re id. The resentencing the directive that mat- in this resentencing by for same manded performed by ter be judge. different despite judge, the observation of the dissent nothing returning would be served original judge. the matter 404 U.S. J., (Blackmun, at

at dis

senting). In Tucker it that the was clear improper did have judge knowledge trial America, UNITED STATES of convictions, prior yet overwhelming ma Plaintiff-Appellant, jority Supreme Court not con did fact require sider this sufficient to a new and sentencing judge. Indians, Pyramid Lake Paiute Tribe of The third factor enumerated in Larios Plaintiff-Intervenor-Appellant, also to be not con- needs considered. I am “reassignment vinced that en- would [not] duplication tail waste of out of effort DIS TRUCKEE-CARSON IRRIGATION gain proportion preserving realized in TRICT, NEVADA, STATE OF Sierra fairness,” at appearance Larios 943. Company, City Pacific Power of Wash transferring By a case such as to a new oe, County Treasurer, and Washoe Trus judge, require judge the new become tee, Alcorn, Approximate A. and Albert completely familiar with the entire record— 17,000 ly Individually Per Other Named no small in a proceeding Firms, burden such as the sons, Partnerships, Corpora Moreover, present one. practice if the em- tions, Defendants-Appellants. ployed by majority uni- applied were 78-1115, Nos. 78-1493.

formly, no suggested why reason is it Appeals, Court of be, should not then in only districts where Ninth Circuit. sits, judge necessary one it would be bring district, in a from another at no Jan. delay. small cost and no little Rehearing Rehearing En Banc Even in absence of Circuit Ninth March Denied provide cases which now guidelines re-assigning cases, sug- remanded I would

gest practice of assigning judges new

on remand should be a most utilized in cautious manner. Here the trial con- *, SKOPIL, Before TUTTLE day ducted the three trial which resulted SCHROEDER, Judges. Circuit evidence, He conviction. heard the saw and heard witnesses. eliminate To ORDER this whole reservoir of knowledge solely on case, opinion cur above-named of an appear- the basis observation that the 1286, 9th rently published at 649 F.2d is justice ance might thereby, be served ordered amended as follows: would seem to exalt appel- the views of an late practice court over time-tested and the complete 1. In the second paragraph practicalities most, of the situation. At 649 F.2d at the sentence: “Section * Tuttle, Circuit, sitting by designation. The Honorable Elbert Parr Senior Cir- the Eleventh Judge, Appeals cuit United States Court trailer with her son. notes Defendant argues Alverson that even if he con linking there direct Nancy was no evidence structively possessed three weapons Alverson, empha Alverson with James search, seized in the there only trailer possibility sizes the the two were not possession one act of since the weapons However, living together. Nancy Alverson possessed place. were at the time same accompany gun did the defendant several

Case Details

Case Name: United States v. James W. Alverson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 4, 1982

Citation: 666 F.2d 341

Docket Number: 80-1864

Court Abbreviation: 9th Cir.