United States v. John Edward Spencer

1083 declaratory relief was granted; was not sim- Ordinarily we would cause. probable Engel litigation denied, throughout for trial. remand ply significant client without represented his choice reversal Our to thus far failed has Engel interference. matter, how- complicates ruling lawof special to show damage sufficient plead complaint amended Engel’s ever, because law. New York injury under York’s meeting New allege facts not does Recent requirement. injury heightened Nevertheless, decisional York New au- division decisional appellate York New some nar may be authority suggests there interference with thority requires “[s]ome plaintiff might which a grounds upon row example, for property, or plaintiff’s claim malicious to state a valid able attach- remedy such as some way of per showing injury to prosecution without v. injunction.” ment, arrest Molinoff Burt, Engel supra. property. son or See 312, 528, 471 N.Y.S.2d Sassower, A.D.2d 99 plead his opportunity had an has never division does appellate (1984). But the 314 applies, law New York knowing that claim New York The word. final have the not Engel that to conclude we hesitate on definitive statement Appeals’ of Court of facts would allege any set cannot to be still seems prosecution malicious prosecution un malicious claim for state a 592, Williams, 298 23 N.Y.2d v. Williams two factors law. These York der New See, (1969). 473, 333 246 N.E.2d N.Y.S.2d remand, that, us convince 389, A.D.2d 161 Greenburger, e.g., Artzt his Engel amend com allow court should (1990). By our read- 127, 128 N.Y.S.2d 555 can, claim under to state a if he plaint, squarely not however, does Williams ing, Davis, Foman v. 371 law. New York See prose- a malicious of the elements address 229-30, 9 181-82, U.S. & n. 475-77 N.Y.S.2d at 298 claim. cution liberality of (1962) (policy 222 L.Ed.2d 2; id., n. 298 & at 335 2, 246 N.E.2d amendment). 482-84, N.E.2d at at N.Y.S.2d judgment RE- district court’s The id., at N.Y.S.2d concurring); (Burke, J. case REMANDED C.J., (Fuld, VERSED 487-88, at 343-44 246 N.E.2d opportunity appellant permit prior part). In dissenting in complaint. amend the a malicious Appeals indicated Court rare circum- might lie in claim prosecution in recent routinely mentioned

stances Burt cases. division

appellate (1905). N.E. Smith, N.Y. trial, sure must be we ordering a

Before of action. a valid cause Engel states “psy- The stands, does he not. As it now America, STATES UNITED in a being a defendant chological burden of Plaintiff-Appellee, injury under establish does not law suit” Engel at 313-14. 471 N.Y.S.2d Molinoff, as a defen- including him argues SPENCER, Edward John creating a serious succeeded CBS dant Defendant-Appellant. his client. himself conflict between 91-10051. No. interference such presuming Even relationship could attorney-client with an Appeals, Court States United required un- injury” “special constitute Circuit. Ninth yet pled law, Engel as has York der New 4, 1991. Nov. and Submitted Argued client, he, were or his showing that no facts any interference. a result as harmed Dec. Decided client his represent Engel continued action, contract York breach the New his client. recovery for large and secured sought CBS injunction preliminary operating without vehicle

stopped a motor Spenc- headlights. functioning Defendant front in the seat passenger er was the driver asked Officer Collins car. When Officer license, informed the driver for her have and that did not one that she Collins She in- belong her. did the not car car the be- Collins Officer formed Jim Mil- acquaintance named to an longed ler. time, Officer Fred same the

At about stopped the vehic- Lozier, alongside pulling forward le, defendant bend the observed request Upon Officer Collins’s his seat. identification, a Mar- presented Spencer for After card. County jail identification icopa Collins Officer Lozier informed Officer seen, took Officer Collins he had what retreated card and Spencer’s identification Jacobson, Federal Public Asst. check computer L. Bram to run a patrol to her car defendant-ap- AZ, Phoenix, for Defender, license the car’s and on defendant on the inquiry revealed that pellant. computer The plate. convict- previously been had the defendant Atty., Asst. U.S. Birmingham, E. Ann weapon and deadly awith assault ed of AZ, plaintiff-appellee. Phoenix, registered not plate was license did computer not The stopped vehicle. the against warrants outstanding reveal Spencer. POOLE, and REINHARDT Before: on the arrived then Sprouse Officer Judges. FERNANDEZ, Circuit that he Officer Collins informed and scene night before the the same vehicle seen had POOLE, Judge: Circuit by a different being driven convic- appeals his Spencer Edward John Af- plate. license different with a adorned posses- felon convicted being a tion for discussion, officers the three short a ter the argues Spencer firearm. of a sion the driv- vehicle asked approached the him erroneously denied (1) court After step outside. Spencer er and evidence present opportunity the vehicle, Lozier Officer the exited Spencer vehicle the who owned individual another jack- wearing a leather that he noticed gun found with in this ease was at issue The patted Spencer down. then et and vehicle of another seat driver under underneath his hands slid officer arrest; (2) days after several empty shoulder and discovered jacket obtained evidence suppressed have should Spencer asked Lozier Officer holster. in which car stopped the police when replied Spencer gun was where him; and frisked passenger awas one and have he did not evi- on the (3) commented improperly carry one. permitted jurisdic- haveWe at trial. presented dence front searched then Collins Officer to 28 U.S.C. pursuant appeal this over tion un- found car. She area passenger affirm. We § fully seat side passenger derneath revolver. Ruger Sturm caliber .44 loaded FACTS fit inside to see if checking After defendant, worn the holster 1:00 approximately at April On charges of on arrested officers Collins Willie police officer A.M., Phoenix issues, misleading jury, weapon. sion of the concealed carrying a delay, the car fact be- or considerations of undue waste later determined Miller, time, arrested five presentation who was or needless of cumu longed to charges of automo- days after lative evidence.” We review the district arrest the time of his evidentiary theft. At decision under Rule 403 bile handgun under the driver for an abuse of discretion. police found had Hooten, in which Miller (9th Cir.), of the car cert. side seat denied, traveling. been (1981). give L.Ed.2d 873 We the district trial, court refused to al- At they courts “wide latitude” when balance of Mil- to introduce evidence low prejudicial proffered effect of in the car and of the found ler’s arrest value. United States against probative its did, driving. The court Miller had been Kinslow, 963, 860 F.2d 968 Cir.

however, car allow the woman driver of the 1988). Layton, See also United States v. passenger to Spencer had been a in which 1388, (9th Cir.1988) (“consid 855 F.2d gun found testify that Miller’s had been given deference” Rule erable 403 evidentia- him, they and police when arrested denied, decision), 1046, cert. ry tending to show that the admitted evidence 1178, (1989). 103 L.Ed.2d 244 large enough to fit the holster was Ruger found underneath car matter, however, As an initial seat. Spencer disputes the district court’s reli arguments, Spencer’s During closing at- upon excluding ance Rule 403 as a basis for gun torney that Miller owned a asserted case, report in the arrest made Miller’s night one found in the car the similar to the citing several decisions of this and other Spencer was arrested. The district court involving circuits exclusion testimo objection prosecutor’s sustained the on the ny describing identity suspect in a a arguing ground that defense counsel was Spencer’s argument persua crime. is not evidence, facts not in but did not ask the sive. disregard the jury to comment. The dis- Spencer “I in judge dispute trict stated: think that is correct. does not that he was found; testimony. again Ruger pistol I But car don’t recall where jury alleges has heard the evidence. Let’s merely he that he did not know it proceed.” Spencer’s attorney did not ob- there. defense is therefore ject judge’s response prosecu- properly characterized as one on the based objection. tor's was convicted of prosecution’s prove failure to the knowl- violating 922(g)(1) 18 U.S.C. and Thus, edge element of the §§ offense. 924(a)(2), prohibit which convicted felons by Spencer inapplicable cited cases are firearm, being possession in of a and they the facts of this in- twenty-one was sentenced to months fed- identity. volved the defense of mistaken prison. Spencer timely eral filed a notice Armstrong, See United States v. 621 F.2d appeal January on (9th Cir.1980); United States Moore, (10th Cir.1977); 556 F.2d

DISCUSSION Robinson, F.2d (2d Cir.1976); Holt v. United 112-113 Suppression evidence Miller’s A. States, (5th Cir.1965). 342 F.2d 164-65 gun identity if contends that the trial Even these mistaken cases did here, police reports apply they preclude application should have admitted do not Arm- balancing arrest In detailing Miller’s and the seizure of of the Rule 403 test. strong, driving. from the car that Miller was we held that the defendant was provides “[although prejudiced by judge’s Fed.R.Evid. 403 the trial exclusion of relevant, may testimony if a man other than the defen- be excluded its probative during substantially outweighed money” value is had used “bait stolen dant danger robbery buy at a car. prejudice, of unfair confu issue Howev- ruling reports. previously held er, this cast We have that Fed. explained that we also supports evidentiary to R.Evid. 403 an deci- court’s freedom no doubt Hooten, quite sion similar to this one.2 insure cumulative evidence “exclude (affirming F.2d at 636 exclusion of presentation of a case.” orderly testimony gun trading about the level of at 953. typically engaged by hobbyist collectors futilely contends that Fed. dealing charged where defendant 405(b) 404(b) that the dictate R.Evid. license). firearms without a Miller’s arrest be admitted. evidence of 405(b) specific allows introduction of Rule stop subsequent B. The vehicle that con prior instances of conduct when and automobile search frisk probative of character a trait of duct is argues next character, or the defendant’s character and stop had no cause the vehicle which he trait, is an essential element character passenger, unlawfully was a him seized Spencer has not raised his defense. Here forcing him to remain while the officer defense; he of his character as element po took his identification card back to the he did claims that not know check, computer improp lice car for a the seat. was under erly subjected “stop him a and frisk.” We review de the district rul novo 404(b) party authorizes a Rule ing suppress aon motion to evidence on prior evidence of “bad acts” introduce grounds. People Territory these opportuni necessary to demonstrate when of of Ichiyasu, 838 F.2d 355 Guam intent, plan, knowledge, ty, preparation, Cir.1988). Spenc.er’sobjections None of In identity, or absence of mistake. this stop subsequent or warrant case, Spencer sought that Mil to establish and frisk check are meritorious. likely most knew ler was the who Ruger of the was under the seat that no There is doubt a broken 404(b) prior Rule with the car. But deals headlight gives stop an officer cause to a party opposing acts” of the introduc “bad Prouse, 440 motorist. See Delaware v. acts, proffered prior not the tion of the 648, 661, 1391, 1400, 99 S.Ct. U.S. person tending to of a different “bad acts” (1979); L.Ed.2d 660 United v. Bak States opposed as person, show that (9th Cir.1988). er, The 850 F.2d complete in person offering the evidence a a running check detention while warrant knowledge ly separate or intent had justified, To be such also was reasonable. to commit a crime.1 by “partic supported must a a detention be objective suspecting ularized and basis no of discretion declin- We find abuse person stopped of criminal particular of arrest ing to the evidence admit simply the risk qualify The district court concluded that under Fed. 1. Nor would this evidence wasting prac confusing involving the issues and time out- "habit routine of R.Evid. tice," proof any weighed likely of attributes were not value of inferences that since those conceivably basis of the offers. drawn from the subse- could discovery quent under a dif- of a different colleague dissenting us con- accuses Our (albeit car a car owned in a different ferent seat doning exclusion of relevant evidence person who the car in which same owned tolerating prosecutors that allows standard passenger). awas leeway” evidence to introduce "inordinate objection we have As to the dissent’s preventing de- to the defendant while harmful right to deprived Spencer his constitutional tending presenting fendants evidence, present exculpatory it clear we think Judge innocence. Reinhardt confuses establish presents no constitutional that Fed.R.Evid. 403 facts, thing. arguments do no such for we requires balancing procedure problems. it The key issue in this case is whether The ordinarily thought the demands to meet Ruger the seat. The was under knew Judge process. assertion that Reinhardt’s due necessarily turn of the case does not outcome rights Spencer’s were violated constitutional Ruger. jury question A who owned the on the of the defense law- application us its reminds presence of about the draw inferences would my process is what yer’s aphorism "due Ruger light police of the officers’ observa- was denied.” in the car. client furtive motions tion Cortez, 449 activity.” Judicial comments on the evi 411, 417-418, 690, 695, permissible. 66 dence are Sanchez-Lopez, 101 S.Ct. U.S. Quercia (1981). (citing stop “A can in- 879 F.2d at 553 L.Ed.2d 621 valid United States, 466, 469, 698, 699, momentary per- restriction on a clude the (1933)). Here, to 77 L.Ed. 1321 the district son's freedom of movement order making judge’s entirely comments were quo maintain the status while neutral. simply He stated that he did not recall the inquiry.” initial United v. Patter- States son, (9th Cir.1981). testimony about Miller’s referred to

Spencer’s counsel. Such a statement does These criteria were met in this case. support finding plain In error. operator’s The driver had no license and event, also instructed Spencer presented jail identification when jury to decide the case based on the identify the officer asked him to himself. evidence as each of them it. remembered reasonably police These facts could lead a instruction, ju This which indicated to the suspect that officer to the car did not be they are judges rors the sole of the long occupants to the driver and that the facts, negated any impact adverse the mild might have been involved in criminal activi may comment have had. See Sanchez- Fouche, ties. See United States v. Lopez, 879 F.2d at 553. (9th Cir.1985) (inferences F.2d apparent or deductions to trained en law CONCLUSION may forcement officers be considered un We AFFIRM conviction. circumstances). totality der the believing justified were also that a REINHARDT, Judge, dissenting: Circuit might they firearm be in the vehicle after discovered the shoulder holster underneath I Spencer’s jacket and Officer Lozier ob disagree I strongly with the Spencer’s concealing served movements in holding Spencer’s that evidence critical to the automobile’s front seat after Officer properly justify defense was excluded. To Thus, stopped the vehicle. Collins war majority its decision the cites the district stopped sup rantless search of the car was admitting disput- statement that by probable See, Baker, ported e.g., cause. might ed evidence have “wasted time” and (police 850 F.2d could auto at search jury”. Opinion “confused the at 1087 finding after ammunition on the defen conclusory n. 1. Such statements are all- person). dant’s too-frequently a substitute for a failure to analyze underlying legal facts or is- judge’s C. The district comment question sues. That is without the case jury majority attempt here. The does not prosecutor objected explain The the basis for either of the conclu- Spencer’s lawyer endorses; most, was outside sions it nor could it. At during closing argument. his The approximately one to two minutes would responded judge by that he did not recall the have been “wasted” the introduction of police report evidence to which defense counsel had re the excluded —evidence object supported Spencer’s ferred. Defense counsel did not strongly defense and statement; hence, uniquely persuasive. the court’s we it only review was The only plain error. engen- United States v. “confusion” that could have been San chez-Lopez, by police report Cir. dered consideration of the 1989). only excep juror’s “Plain error exists justifiable would have been the un- certainty regarding Spencer’s guilt tional circumstances when a substantial or inno- (cit True, right of defendant is affected.” Id. cence. the trial would have taken ing Frady, jury United States v. much less time—and deliberations substantially simplified— 163 n. 1592 n. 71 would have been (1982)). simply L.Ed.2d 816 if the trial had excluded support probative tended to the conclu- infinitely Spencer’s evidence that less inno- sion that the defendant was innocent. cence than the evidence by excluded system justice judge: However efficient such trial evidence that demonstrated be, system pres- might kept it is neither the we that Miller guns precisely where the anx- ently gun Spencer have nor one that we should be charged was possessing with join majori- located; I cannot ious to establish. was evidence that was contained ty’s decision. police report an official rather than in testimony companion of a woman defendant; evidence that tended

II strongly prove gun was Miller’s Spencer charged The firearm that was Spencer’s. jury fact that the knew pas- possessing with was found under the gun that Miller owned both a and the car senger seat of a car that was owned Jim virtually Spencer’s was valueless to de- girlfriend. Miller and driven Miller’s fense ability without the ju- inform the Spencer, had entered Miller’s car earli- who rors of the critical fact that Miller kept evening, sitting passen- er that was in the guns cars; underneath the seat his de- ger police seat when the the vehic- stopped information, prived of that jury had le. He contended that he did not know that gun little reason to believe that the gun was under the seat and that Miller charged possessing was was previous- must have left it there sometime placed there Miller and that did ly. Sprouse Officer stated that he had not know of its existence. The majority previous seen Miller’s car driven eve- denigrates probativeness of this evi- ning and that the driver was someone other by saying dence posses- that the issue was girlfriend Spencer. than Miller’s Five gun sion of the not ownership. Opinion at arrest, days Spencer’s police after hardly stating 1087 n. 1. It needs gun found Miller with a similar to the one whether a found under the seat of found when was arrested. The Miller’s car was Miller’s or gun, like the highly relevant to whether located under the seat of one of Miller’s existence, aware of its let alone whether he cars. The had observed Miller at his possession gun, inwas when he sat prior house for several hours to the discov- passenger on the seat beneath it which was gun: during period, ery of the that he did hidden. carry not out to his car nor did he short, appear put to under In one the seat. Ill according police report, Miller—the owner of the car which was Fed.R.Evid. 401 defines “relevant evi- kept guns at least of his one arrested — under the seat of his car. having any tendency dence” as “evidence any make the existence of fact that is

to of judge prevented Spencer consequence trial from to the determination of the report introducing police probable probable the into evidence action more or less than tending and thus excluded critical facts to it would without the evidence.” The be by judge the under the seat of Mil- show that evidence excluded the trial was Indeed, Spencer’s. unquestionably ler’s car was Miller’s not He relevant. that evi- precluded Spencer informing ju- the key dence was the to defense. showing the rors about evidence that Miller Fed.R.Evid. 402 states that relevant “[a]ll moreover, kept guns under the seats of his cars dur- evidence is admissible”: ing general period Spenc- the time in which the that relevant evidence was crucial to True, defense, charged jurors only statutory occurred. the not has a offense er’s he (under 401) by told the woman with when entitlement Rules 402 and to were it, police stopped the them that Miller owned introduce but a constitu- fundamental passenger right the car in which was a to do so as well. See Wash- tional 14, 19, Texas, gun. Opinion ington and that Miller owned a State of However, 1920, 1923, (1967) at 1085-86. that information is 87 S.Ct. 18 L.Ed.2d underlying the district ysis, two concerns testimony of wit- the to offer (“The right re the exclude right to decision the court’s plain terms inis’ ... nesses present wasting the defense, right to “confusing the the issues port: present Just by of facts.... is the n. 1. Neither version Opinion at defendant’s time”. the right to confront the has accused remote imagination as an even of the stretch of purpose the for witnesses prosecution’s here; majority does nor the ly applicable has testimony, the he challenging their they why any explanation attempt to offer estab- own witnesses his present right to no whatsoever is indication There are. is a fundamental right This a defense. lish relating to Miller evidence that the record law.”).1 In of process of due element con prejudiced, have would habits and his statutory and constitutional heavy short, a pre we jury fused, the or misled —unless of rel- the introduction favors presumption that he is guilty sume excluded evidence the evidence—like evant confuse allowed not be should therefore inno- of support a claim might here—that tending to introducing evidence jury the Perry, trial. See also in a criminal cence offense. the he commit did show cases federal (“[T]he F.Supp. at 556 assertion, the Contrary to the trial of discretion indicate enhanced have would evidence broadly as in excluded as exercised may not be credibility evaluate ability to excluding jury’s evidence courts the California Moreover, the crime exclud committed claim. party a third a definite to be appears needlessly cumula hardly and there charged, evidence was ed evi- of such admission preference powerful it was of time”: or a “waste tive dence.”). Spencer’s innocence—evidence evidence ex- from the limited qualitatively constitutes type aof Fed.R.Evid. different permits the 402: it 401 and support of his to Rules ception offered evidence other proba- “its if evidence relevant exclusion he with which to the crime defense sole outweighed by substantially tive value consumed have it would charged, and prejudice, confusion danger of unfair minutes of the or three two approximately or misleading jury, issues, or cited cases time. The court’s delay, waste of undue considerations support the inference majority to of cumula- presentation time, needless merely “cumula the excluded evidence sup- way 403 in no Rule tive evidence.” here. to its conclusion support no lend tive” here: action none ports the district (citing Unit at 1086-87 Opinion Compare by that identified considerations of the Armstrong, ed States case, much less present applies in Rule F.2d at 953 Cir.1980) Armstrong, 621 probative outweigh[sJ” “substantially due exclusion {reversing conviction sought relevant value (argu evidence); Opinion at 1087 relevant introduced. Hooton, 662 F.2d States v. ing that United 1004, denied, IV 102 455 U.S. (1981), 628 cert. (1982), upheld 1640, 873 L.Ed.2d 71 S.Ct. identify, noted, my colleagues IAs have quite similar evidentiary decision “an or anal discussion single word of a without crime); the party a third confessed dence that Opinion colleagues, at 1087 n. my see 1. Unlike 550, Watts, F.Supp. 558-559 Supreme Perry 520 of that the statement I believe nom, analogous F.2d 1447 hardly (N.D.CaI.1981), to a 713 Washington sub is Court in aff'd denied, Cir.1983), defendant] process is 105 that "due cert. view whatever for the Although significant I cannot vouch (noting con is denied”. 77 L.Ed.2d S.Ct. 83 who (along seven Justices with the majority, I of evi the exclusion limitations stitutional Washing- opinion in joined the Chief Justice's the offense party committed dence that third explanation ton) Supreme Court's consider fact, charged). In was the defendant for which Clause Due Process requirements of the of the it would this case any aphorism is involved if any aphorism. persuasive than more to be far pro "due apparent view that majority’s Mississippi, U.S. Chambers also is it decides a district is whatever cess 1038, 1047-50, 298-303, 35 L.Ed.2d 93 S.Ct. and unreviewable his unlimited of the exercise pro- due (1973) (reversing conviction discretion.” evi- admit refusal to the state’s cess violated one”) Hooton, 662 F.2d at 636 in which he passenger, this was a and he there- (“Hooton attempted to offer the ... testi possession fore did not have of weapon. collectors, mony gun gun of dealers who He tried to show that in gun fact the was hobbyists_ The trial court ex cater possession someone else’s owner —the However, cluded the evidence.... defense placed who had vehicle the weapon testimony counsel did elicit extensive it where was found. Sitting in someone prosecution approximately twenty and de which, one, else’s car unbeknownst to concerning fense witnesses the activities of the owner has hidden a or other con- collectors.”) added). (emphases Put traband does not make person guilty simply, there is no basis whatsoever for the possession. circumstances, Under those majority’s conclusion that Rule 403 autho owner, not the occupant innocent of the rizes the district court’s action here: none car, possessor. Thus, is the prerequisites of the application of that argument defense is not any way present Rule in exists in the case. that someone else guilty being is possessor simply wrong. Spencer is say- V ing: “The state has accused wrong

Spencer is entitled to introduce evidence person.” supports his contention that someone majority cases that the dismisses as possessed handgun else at issue here “mistaken identity” clearly cases appli are just as the defendant in United States v. cable here. It makes no difference wheth Robinson, (2nd Cir.1976), 544 F.2d 110 was party er the third “looks like” the defen support entitled to introduce evidence to (“mistaken dant identity”) or not: if the his contention that else someone robbed defendant’s supports the fact that the bank in that case. See id. at 112-13 (reversing person another responsible a trial court’s exclusion evi- he—was —not dence under Rule 403 that an individual for the crime or otherwise establishes the looked like suspect- who the defendant was innocence, defendant’s that evidence is rele ed of two armed robberies in the same area vant and must be admitted in all but ex days six robbery within the bank Chambers, treme situations. See also charged). the defendant which 298-303, (hold U.S. at 93 S.Ct. at 1047-50 ing that purposes hearsay

For exclusion of evidence that Federal Rules of Constitution, Evidence and the party the “mistak- a third told others that he shot the identity” by majority, en cases cited see process victim was a violation of due de 1086-87, Opinion at are identical to the spite party the fact the third ownership” “mistaken posses- “mistaken defendant); never “mistaken” for the Alex here, presented situation sor” and the ma- States, 353, 356, ander v. United U.S. jority no making offers rationale for a dis- 350, 351, (1891) (not 34 L.Ed. 954 tinction between the two. “Fundamental ing that the exclusion of the defendant’s Relevancy require Standards of ... testimony person that another was armed testimony admission of which tends to searching for the eventual murder vic prove that a other than the defen- might tim require be “such error ... as to charged.” dant committed the crime that is “might reversal” if such evidence have a Armstrong, F.2d upon bearing material the identification of (9th Cir.1980) (citing numerous cases murderer”). Spencer the was accused of reversing robbery conviction for bank possessing precedent a firearm: our makes because court excluded evi- present clear that he was entitled to evi person possessed dence that another bait pos dence that someone else—not he— bank). from the bills weapon. sessed that precise, Spencer’s To be is contention Spencer in- The evidence that wished to knowledge that he did not have the that gun was hidden beneath the seat of the car to his troduce was relevant and crucial possessing fire- tion of a defendant which he crime with defense

sole car, evidence that the in his arm located evi- proffered the charged. was “[W]here weapons contained two home value, defendant’s probative of substantial dence is prove to of- admissible and narcotics was confuse, all prejudice to not tend will Brown, fense); 770 F.2d v. of admis- in favor resolved doubt should Cir.1985) (9th (holding evi- 768, that 770-71 States, 342 F.2d sibility.” Holt v. United found under seat that a was the dence Here, Cir.1965). I have as (5th to was defendant’s car admissible refusal court’s to the supra, district noted heroin); import see conspiracy to prove a sought to intro- evidence admit the Covelli, 738 F.2d v. States also United the under Fed- only improper duce was Cir.1984) the intro- (7th (permitting 855-56 deprived have Rules, may well but also eral the objection a Rule duction—over —of constitutional of his fundamental possession of two hand- past defendant’s Compare law. process of due right to despite prosecution that guns in a murder (excluding Hooton, at 636 662 F.2d of these that either lack of evidence 403(b) part in under Rule evidence weapon); United guns the murder marginally rel- excluded evidence “the (10th Moore, 556 F.2d States defense). Hooton’s evant” to of ev- Cir.1977)(permitting the introduction found explosive materials were idence that VI residence both before in the defendant’s placed at a court- a bomb was and after colleagues my unintentionally, Perhaps act). prosecution for that latter house of an in- creation hasten the expand or intro- ability to Despite government’s double-standard creasingly common prove to duce “similar acts” defen- that allows standard criminal cases—a person) (and other commit- dant not some respect leeway with inordinate prosecutors offense, colleagues today my refuse ted an harmful to of evidence to the introduction to introduce “similar permit a defendant precluding defendants while the defendant (and not another prove acts” to tend that would introducing evidence here, defendant) committed act— I have little establish their innocence. handgun of a which possession —with had found with if been doubt that is, my charged. a rule is Such defendant cars another of his the seat of under view, cir- as that of several other as well arrested for the he was around the time cuits, clearly improper.2 offense, my colleagues would not present sup- hesitate to reverse a Conclusion See, e.g., Unit- such evidence. pression make judges have discretion to Butcher, F.2d 815-16 District ed States admissibility of evi- that, rulings prosecu- regarding in the Cir.1991) (holding unwitting essary perhaps of an creation the Constitution and I believe that Because con- require the admission is another unfortunate and 402 inter-circuit conflict Rules 401 introduce, sought I need decision. More- sequence today's evidence erroneous argument Spencer's alternate over, rejection not reach my colleague’s of the "reverse 404(b) that same result. mandates Fed.R.Evid. heightens 404(b)” argument only further claim). (rejecting I Opinion at 1087 increasingly prevalent our Cf. double-standard note, however, explic- circuits have that several government permits jurisprudence (in itly accepted perhaps weaker cases than the (here, inculpatory "bad introduce 404(b)” here) argument one Spencer the "reverse defendant) refusing permit while of a acts” my colleagues appeal and that raises on exculpatory evidence to introduce the defendant Stevens, reject. See United States (here, type “bad acts” of a similar Cir.1991) (3rd (reversing convic- 1400-06 alleges commit- whom the defendant individual noting that basis numerous tion on that the defendant crime for which ted adopted circuits have other state and federal charged). 404(b)” theory). The unnec- "reverse EICHLER, However, duty appellate Richards, it is the Hill Bateman Inc. dence. McGuiness, rulings do not that those and Robert J. courts to ensure Counter- right to a full Claimants-Appellants, defendants of their deprive Today, despite the clear fair defense. v. the Federal Rules of Evi- commands of George George Lay E. LAYMAN and E. Constitution, fail and the we dence man, Jr., Forest Acres Partner d/b/a should be re- duty. Spencer’s conviction ship, Washington general partner Accordingly, I dis- versed and remanded.3 ship; Barry K. Schwartz and Calvin sent. Barry Klein K. Schwartz Part d/b/a Schultz;

nership; Earl H. and Kenneth Franzhein, II, Counter-Claim-Defen dants-Appellees. LAYMAN, al., Plaintiffs,

George E. et

v. COMBS, II, al., Brownell et Defendants. HEMBREE; Kincaid, Wilson, Charles R. Hembree, P.S.C., Schaeffer Counter- Claimants-Appellants, v. George George Lay E. LAYMAN and E. LAYMAN, al., Plaintiffs,

George E. et Jr., man, Forest Acres Partner d/b/a Washington general partner ship, a v. ship; Barry K. Schwartz and Calvin COMBS, II, al., Barry et Defendants. Brownell K. Part Klein Schwartz d/b/a Schultz; nership; Earl H. and Kenneth Franzhein, II, Counter-Claim-Defen BRYANT, Frank L. Counter- dants-Appellees. Claimant-Appellant, v. GRIGGS, Plaintiff, H. James George Lay- George E. LAYMAN and E. v.

man, Jr., Acres Partner- Forest d/b/a COMBS, II, al., Defendants. Brownell et ship, Washington general partner- Barry ship; K. Schwartz Calvin EICHLER, Richards, Inc., Bateman Hill Barry Part- Klein K. Schwartz d/b/a McGuiness, J. Counter-C Robert Schultz; nership; Earl H. and Kenneth laimants-Appellants, Franzhein, II, Counter-Claim-Defen- dants-Appellees. GRIGGS,

H. Counter-Claim- James Defendants-Appellees. Plaintiffs, LAYMAN, al., George E. et GRIGGS, Plaintiff, H. James COMBS, II, al., et Defendants. Brownell II, al., COMBS, et Defendants.

Brownell pound the basis for the error that constitutes treatment of both I believe However, and seizure issue and the comments I would reverse the search this dissent. issue, regarding the evidence made I need the exclusion of evidence moreover, erroneous; may in the also grounds. alternative reach these court’s action serves to com- latter

Case Details

Case Name: United States v. John Edward Spencer

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 16, 1992

Citation: 981 F.2d 1083

Docket Number: 91-10051

Court Abbreviation: 9th Cir.