United States v. John Edward Spencer

America, UNITED STATES

Plaintiff-Appellee, SPENCER,

John Edward

Defendant-Appellant.

No. 91-10051. Appeals,

United States Court

Ninth Circuit.

Argued Nov. Submitted 1991.

Decided Dec. Rehearing

As Amended on Denial of Rehearing July En Banc Jacobson,

Bram L. Asst. Federal Public Defender, Phoenix, AZ, defendant-appel- lant. Birmingham,

Ann E. Atty., Asst. U.S. Phoenix, AZ, plaintiff-appellee. POOLE, Before: REINHARDT and FERNANDEZ, Judges. ORDER opinion 16, 1992, filed slip December op. appearing at 981 F.2d 1083 (9th Cir.1992) is amended as follows: Note: Amendments have been Lozier Officer Collins of informed what he [Editor’s seen, published opinion.] had Officer Collins took incorporated into iden- tification card and patrol retreated to her car amendments, panel has vot- With these run computer to a check on the defendant unanimously deny petition to for re- ed plate. and on the computer car’s license The hearing. inquiry pre- revealed that the defendant had The full court has been advised of the viously convicted been of assault with a dead- suggestion rehearing en banc and no for ly weapon plate and that the license not requested active has a vote on whether registered stopped vehicle. The com- Fed.R.App.P. to rehear the matter en banc. puter any outstanding did not reveal war- against Spencer. rants petition rehearing The for is DENIED and Sprouse Officer then arrived on the scene rehearing RE- suggestion en banc is and informed Officer Collins that he had seen JECTED. night being the same vehicle the before driv-

en a different and adorned with a OPINION plate. different license After a short discus- sion, approached the three officers the vehi- POOLE, Judge: cle and Spencer step asked driver and Spencer appeals John Edward his convic- Spencer vehicle, outside. After exited the being tion for a convicted felon Officer Lozier wearing noticed he was Spencer argues that of a firearm. the dis- jacket patted Spencer leather then down. (1) erroneously trict him the denied Spenc- The officer slid his hands underneath opportunity to evidence that another jacket empty er’s and discovered an shoulder individual who owned the vehicle at issue holster. Spencer Officer Lozier asked where gun this case was found with a under the gun Spencer replied was and that he did days driver seat of another vehicle several permitted not have carry one and was not (2) arrest; sup- after should have one. pressed police evidence obtained when the pas- Officer Collins then searched the front stopped Spencer the car was a senger car. area of the She found under- (3) him; passenger improp- and frisked passenger fully neath the side seat a loaded erly presented commented on the evidence at Ruger .44 caliber Sturm revolver. After jurisdiction appeal trial. haveWe over this checking gun to see fit inside the § pursuant to 28 affirm. U.S.C. We defendant, holster worn the officers Spencer charges carrying arrested on FACTS police weapon. concealed later deter- 6, 1990, April On 1:00 Miller, belonged mined that car in fact A.M., police Phoenix officer Willie Collins days who was arrested five after stopped operating a motor vehicle without charges At the of automobile theft. time of functioning headlights. Defendant handgun police his arrest the found a passenger in was a the front seat of the car. the driver side seat of the car which Miller When Officer Collins asked the driver for her traveling. had been license, the driver informed Officer Collins trial, At the district court refused to allow not have she did one and that the car Spencer to introduce evidence of Miller’s ar- belong did not to her. She informed Officer in the car Miller rest and of the found belonged acquain- that the car to an Collins did, however, driving. had been The court tance named Jim Miller. the car in which allow the woman driver of time, testify passenger At about the same Fred Lozi- had been a Officer er, vehicle, police pulling alongside stopped ob- Miller’s had been found him, they served the defendant bend forward in his when arrested and admitted evi- Upon request tending dence that the holster was seat. Officer Collins’s show identification, Maricopa large enough Ruger Spencer presented to fit the found jail County identification card. After Officer underneath car seat. corroborating testimony Spencer’s attor- closing arguments, During argument persua officers. similar Miller owned ney asserted identity mistaken He cites several sive. night in the car the one found involving cases the exclusion The district court sustained was arrested. identity suspect in a describing the objection ground that prosecutor’s Armstrong, 621 v. crime. See United States arguing facts not defense counsel (9th 951, Cir.1980); v. 953 United States F.2d evidence, ask the to disre- but did (10th Cir.1977); Moore, 479, F.2d 485 556 judge stat- The district gard the comment. Robinson, 110, v. 544 F.2d I don’t recall that is correct. ed: “I think (2d Cir.1976) denied, cert. 434 U.S. 112-13 again jury has testimony. But (1978); 901, 1050, 54 L.Ed.2d 803 98 S.Ct. Spenc- proceed.” Let’s heard the evidence. 163, 164-65 Holt v. 342 F.2d United object judge’s to the attorney er’s Cir.1965). (5th objection. prosecutor’s to the response violating of 18 U.S.C. convicted Spencer was dispositive. In do not find these cases We 924(a)(2), prohibit 922(g)(1) §§ and Armstrong, cited the sole Ninth Circuit case being of a convicted felons by Spencer, that the defendant was we held firearm, twenty-one sentenced and was prejudiced by judge’s trial exclusion of Spencer filed a prison. months in federal man than the defen- that a 15, January appeal on timely notice of during money” stolen dant had used “bait robbery

bank of which the defendant was explained we also accused. DISCUSSION ruling this cast no doubt on district court’s gun Miller’s evidence Suppression A. of of cumulative evidence and freedom to “exclude that the trial orderly presentation contends to insure of case.” police officers’ testimo have admitted should at 953. 621 F.2d detailing arrest ny police reports Miller’s and futilely contends that Fed.R.Evid. from the car that the seizure of 404(b) 405(b) of dictate pro driving. Fed.R.Evid. 403 Miller was 405(b) Rule al- Miller’s arrest be admitted. relevant, may “[although vides specific prior of instances lows introduction probative value is substan be excluded its probative of of conduct when conduct is danger of unfair tially outweighed character or a trait of character and issues, or mislead prejudice, confusion trait, character, a character defendant’s of ing jury, or considerations undue defense. Here an essential element of his time, presentation delay, of or needless waste an Spencer has not raised character as ele- review the dis of cumulative evidence.” We defense; claims that he did ment of his evidentiary Rule trict decision under court’s not know that the under the seat. of discretion. United States 403 for an abuse 404(b), hand, actually Rule on the other (9th Cir.), 628, cert. v. 662 F.2d 636 independent an for the establishes basis 1640, denied, 1004, 102 71 S.Ct. evidence. court’s exclusion (1981). give the district We he, Spencer correctly argues that as well as they when balance the courts “wide latitude” provisions government, may invoke the proffered prejudicial effect of 404(b). Perkins, Rule See United States v. against probative value. United States (9th Cir.1991); 1397, 937 F.2d 1400 (9th Cir.1988). Kinslow, 963, 860 F.2d McCourt, States Layton, F.2d States v. See also United — (9th denied, -, Cir.), cert. U.S. Cir.1988) (“considerable def (1991). 121, 116 L.Ed.2d 89 Rule decision), evidentiary given erence” Rule 403 404(b), however, independent an basis is not denied, cert. admitting evi otherwise inadmissible (1989). 103 L.Ed.2d 244 evidence not barred under dence. Even 404(b) scrutiny under court’s Rule must still survive Spencer disputes the district Perkins, E.g., 937 F.2d at 1401 for exclud other Rules. upon reliance Rule 403 as a basis (evidence case, excludable under Rule 403 ing report in Miller’s arrest made unlawfully passenger, by forcing Rule seized him not it was admissible under whether or 404(b)). him to remain while the officer took his identification card back to the car event, Spencer’s evidence does not check, computer improperly subjected 404(b). under Rule qualify for admission “stop him to a and frisk.” We review de act” —hid- Spencer argues that Miller’s “bad ruling novo the district court’s on a motion to ing gun under his car seat —established suppress grounds. People evidence on these hid the identity of the Territory Ichiyasu, Guam v. argues Spencer’s seat: Miller. thus (9th Cir.1988). Spenc- None of un- qualified for admission objections stop or er’s to the subse- 404(b) “identity” grounds. We der quent warrant check and frisk are meritori- held, however, the characteristics “[i]f ous. prior of- both the offense and distinctive, any way are are not but fense There is no doubt that a broken head crimes committed similar to numerous other light gives stop an officer cause to a motorist. defendant, by persons than the no in- Prowse, 648, 661, See Delaware v. 440 U.S. Perkins, identity can 937 ference of arise.” 1391, 1400, (1979); 59 L.Ed.2d 660 (internal quotation marks F.2d at 1400 omit- Baker, United States v. 1368 ted). exactly That the situation here. (9th Cir.1988). The running detention while Hiding a under a car seat is not a warrant check also was reasonable. To be crime, be used to satis- distinctive and cannot justified, supported such a detention must be 404(b).1 “identity” exception fy the to Rule “particularized objective basis for declining We find no abuse of discretion suspecting particular person stopped of reports. to admit the evidence of the arrest Cortez, activity.” criminal United States v. previously held that Fed.R.Evid.

We 411, 417-418, 690, 695, 101 66 supports evidentiary quite 403 an decision (1981). stop 621 “A can in L.Ed.2d valid to this one.2 See 662 F.2d at similar momentary per clude the restriction on (affirming exclusion of about 636 in order to main son’s freedom movement gun trading typically engaged in the level of quo making tain the status while an initial by hobbyist defendant collectors where Patterson, inquiry.” dealing in without a firearms (9th Cir.1981). F.2d license). criteria met in These were this case. stop subsequent B. The vehicle operator’s The driver had no license and and automobile search frisk jail Spencer presented a identification when identify him himself. argues police the officer asked next had no reasonably police stop facts could lead cause to the vehicle in which he was These confusing qualify simply under Fed. concluded that the risk 1. Nor would this evidence likely involving wasting outweighed prac- R.Evid. tice,” “habit or routine issues and time conceivably proof since of those attributes were not be value of inferences that could subsequent discovery of the offers. basis of a differ- drawn from gun under a different seat in a different car ent dissenting colleague 2. Our accuses us of condon- (albeit a car owned the same ing the exclusion of relevant evidence and of passen- the car in which was a owned tolerating prosecutors a standard that allows "in- ger). leeway” harmful ordinate to introduce evidence objection that we have de- As to the dissent's preventing while defendants to the defendant right pres- prived Spencer constitutional of his tending presenting to establish evidence, exculpatory we think it clear that ent Judge arguments innocence. Reinhardt confuses prob- presents constitutional facts, Fed.R.Evid. key thing. The for we do no such requires balancing procedure it lems. The Spencer knew that issue in this case is whether thought due ordinarily meet the demands of Ruger The outcome of was under seat. Judge process. Reinhardt’s assertion necessarily ques- the case does not turn rights violated were Ruger. A would draw tion who owned lawyer's application reminds us of the defense presence Ruger inferences about the my process client Spenc- aphorism that "due is what light officers' observation of was denied.” er's furtive motions in the car. The district instruction, indi- it. This membered belong did not the car suspect that officer they the sole are jurors might cated occupants to the driver facts, any adverse negated judges of activities. See in criminal have been involved may have had. See Fouche, comment impact the mild States Cir.1985) (inferences ap- Sanchez-Lopez, F.2d at 553. deductions officers law enforcement trained parent totality of the under the

may be considered CONCLUSION circumstances). justi- police were also might be in a firearm believing that fied Spencer’s conviction. AFFIRM We the shoulder they discovered after the vehicle jacket and Offi- underneath holster dissenting: REINHARDT, Judge, concealing observed cer Lozier front seat automobile’s in the movements the vehicle. stopped Collins

after Officer I stopped Thus, search of the warrantless See, by probable cause. supported car was strongly disagree with Baker, (police could F.2d at 1369 e.g., holding critical that evidence finding auto after ammunition search justify To properly excluded. defense was person). defendant’s majority cites the district its decision admitting disputed that statement court’s jury judge’s to the comment The district C. and “con- might have “wasted time” objected Spenc 745 n. 1. jury”. that prosecutor See The fused during lawyer conclusory was outside the evidence are all-too-fre- er’s statements Such judge analyze re closing argument. The district his for a failure to quently a substitute recall the evidence sponded legal that he did not That is underlying facts or issues. De majori- had referred. defense counsel here. The question the case without object to the court’s did not explain fense counsel the basis for ty attempt to does not statement; hence, only plain endorses; review it we it nor the conclusions either of Sanchez-Lopez, 879 most, error. United States one to two At could it. Cir.1989). 541, “Plain error by have been “wasted” minutes would exceptional when only in circumstances exists report— police of the excluded introduction affect right of a defendant is a substantial Spencer’s strongly supported that Frady, 456 (citing States v. ed.” Id. uniquely persuasive.1 and that was defense 1584, 1592 14, 102 n. 163 n. that could have been only “confusion” The (1982)). police by of engendered consideration juror’s justifiable report would have been per- evidence are comments on the Judicial guilt or in- uncertainty regarding Spencer’s at 553 Sanchez-Lopez, 879 F.2d missible. True, have taken the trial would nocence. Quercia (citing v. United jury deliberations time —and much less 698-99, 77 L.Ed. 1321 substantially simplified would been (1933)). Here, judge’s district comments —if any evi- simply excluded judge had the trial simply stated that entirely neutral. He were support the conclusion tended to dence that testimony Miller’s not recall the about he did innocent. However was that the defendant by Spencer’s counsel. Such gun referred to be, it justice might system of such efficient finding of support not a statement does have nor system presently we neither the event, In the district plain error. anxious to establish. that we should be one jury the case to decide also instructed majority’s decision. join the re- cannot each of them based on the evidence as any way affect jority’s does not in opinion in- modification its of 1. The has amended testimony police analysis officers The fact re- my clude an offer of or the result I reach. just report. would their The disputed instead of undoubtedly that to characterize the mains straightfor- simple and have been ignore impor- its vital time is to as waste ward; my of one to increase estimate would Spencer's defense. tance only slightly. Accordingly, the ma- two minutes strongly prove gun that the was II Miller’s Spencer’s. jury not The fact that the knew charged Spencer was The firearm gun that Miller both a owned the car was passen- under the possessing was found virtually valueless to defense with- car that owned Jim ger seat of a was jurors ability out the to inform the girlfriend. Miller’s Miller and driven kept guns fact that Miller critical underneath car earlier Spencer, who had entered Miller’s cars; deprived the seat his that infor- passenger sitting in the evening, was mation, little He had reason to believe police stopped the vehicle. seat when the gun gun know that a that the was contended that he did not that Miller must have possessing placed was under the seat and there Miller and previously. sometime Officer left it there did not know of its existence. Miller’s car Sprouse stated that he had seen majority denigrates probativeness previous evening and that driven the by saying this evidence issue girl- other than Miller’s driver was someone gun ownership. Opin- days after Spencer. friend or Five hardly stating ión at 745 n. 1. It needs arrest, gun police found Miller with a whether a found under the seat of Mil- Spencer was similar to the one found when highly ler’s car was'Miller’s or gun, like the arrested. The relevant to whether was aware of its case, located under the seat of one of existence, pos- let alone whether he inwas cars. The had observed Mil- Miller’s gun, pas- session of the when he sat on the prior for several hours to the ler at his house senger seat beneath which it was hidden. during period, discovery gun: carry out to his car nor did he Ill short, appear put one under the seat. Fed.R.Evid. defines “relevant evi- according police report, Miller—the having any tendency dence” as “evidence was ar- owner of the car which make fact the existence of is of guns of his under rested'—kept at least one consequence to the determination of the ac- car. the seat of his probable probable it tion more or less than judge prevented Spencer from The trial would be without the evidence.” The evi- police report introducing the into evidence by judge dence the trial was un- excluded tending excluded critical facts to and thus Indeed, questionably relevant. evidence the of Miller’s show that the under seat key Fed. was the to defense. Spencer’s. preclud- car Miller’s not He was relevant evi- “[a]U R.Evid. 402 states jurors informing the about ed from moreover, because that dence is admissible”: showing kept guns that Miller the evidence was crucial to relevant evidence during gener- the of his the seats ears defense, only statutory entitle- he not has a in period al time which the offense (under 401) to introduce Rules 402 and ment True, jurors by the were told the occurred. it, right but constitutional fundamental police stopped when the woman with Washington v. do so as well. See State of them that Miller owned the car in which Texas, 14,19, 1920,1923,18 passenger was a and that Miller (1967) (“The right to offer the gun. Opinion at .744. owned a See plain testimony of .is terms witnesses infinitely probative less that information is defense, right present right the the of innocence than the evidence ex- present version of the the defendant’s judge: cluded the trial evidence that dem- right as an accused has the facts.... Just precisely kept guns that Miller onstrated prosecution’s the witnesses for to confront gun Spencer charged with ivhere the was testimony, challenging purpose of their located; possessing evidence that was right present his own witnesses he has the police report contained in an official rather right is a funda- to establish a defense. This testimony companion than in the of a woman law.”).2 defendant; process of tended mental element of due evidence Supreme my colleagues, Opinion Court at 745 n. believe that the statement 2. Unlike see presume that we misled statutory short, heavy —unless that he therefore guilty and of rele- introduction favors presumption jury by confuse the allowed to excluded should not be evidence—like vant tending to show that introducing of inno- evidence support a claim might here —that Contrary Perry, trial. See also not commit the offense. cence in a criminal (“[T]he assertion, cases indicate excluded evidence federal F.Supp. at 556 may jury’s ability the trial of the discretion have enhanced would broadly in the California as credibility as claim. be exercised of evaluate the a third excluding evidence that hardly Moreover, courts the excluded charged, crime party committed time”: or a “waste of needlessly cumulative preference be definite appears to there Spencer’s inno of powerful evidence it was evidence.”). of such the admission type qualitatively of a cence—evidence dif offered ex- a limited constitutes Fed.R.Evid. ferent to the crime with support of his defense sole permits 401 and 402: to Rules ception charged, and it would he was proba- if “its relevant evidence exclusion two or three min consumed outweighed by the substantially value tive The cases time. utes of the district court’s prejudice, confusion of danger unfair support the infer issues, misleading jury, or consid- cited or time, merely excluded evidence delay, waste of ence that the undue erations of support evi- to its conclu of cumulative “cumulative” lend no presentation needless (cit way supports the Compare Opinion at 744-45 Rule 403 in here. dence.” sion none of the con- Armstrong, action here: 621 F.2d 951 ing district court’s applies (9th Cir.1980) by that Rule Armstrong, 621 F.2d at siderations identified case, “substantially much less (reversing conviction due to exclusion ” probative of the rele- outweigh[s] value evidence); (arguing Opinion at 745 relevant sought Hooton, to be introduced. vant 662 F.2d 628 that United States denied, (1981), cert.

IV (1982), upheld “an evi- 71 L.Ed.2d one”) this dentiary quite similar to decision noted, identify, my colleagues I have As (“Hooton at 662 F.2d at 636 analy- of discussion or single word without ... tempted to offer the sis, underlying the district two concerns hobby collectors, cater to dealers report: to exclude court’s decision excluded the evi .... The trial ists wasting time”. “confusing the issues .... defense counsel did dence 745, n. 1. Neither is Opinion at testimony from elicit extensive remotely ap- imagination of the even stretch twenty prosecution defense witnesses here; majority attempt does the plicable nor collectors.”) concerning the activities why they are. any explanation to offer added).3 simply, there is no (emphases Put in the rec- indication whatsoever There is no majority’s conclu for the basis whatsoever relating Miller and his ord that evidence confused, the district that Rule 403 authorizes or sion prejudiced, habits would denied, 838, 105 S.Ct. 83 U.S. hardly analogous that cert. 469 Washington to view is (noting de limi process significant defendant] is "due is L.Ed.2d 77 whatever majority, Although vouch for the nied”. I cannot a third that tations on exclusion joined the (along with the seven Justices I Chief Justice’s party for which the defen committed offense' opinion Washington) consider fact, any aphorism charged). is dant was In explanation require Supreme Court’s be the case would involved in this it far more the Due Clause to be ments of Process process whatever a apparent that is view "due any aphorism. persuasive See also Cham than the exercise of his decides is in district 284, 298-303, Mississippi, U.S. 93 410 bers discretion.” unlimited and unreviewable (1973) (re 1038, 1047-50, S.Ct. 35 process versing due violated conviction because majority opinion, the now ac- amended that a refusal to admit evidence the state’s support knowledges Armstrong does not crime); Perry v. party to the third confessed merely evidence was Watts, (N.D.Cal.1981), excluded inference F.Supp. 520 Cir.1983), nom., Opinion at 744-45. cumulative. See sub aff'd prerequisites here: none of the hidden other contraband does not court’s action person guilty possession. any way exists make a application of that Rule Under circumstances, owner, those present in the case. not the inno- car, occupant possessor. cent is the V Thus, majority’s argument guilty entitled to introduce evidence defense is not that someone else is is supports being possessor simply wrong. Spenc- his contention that someone just possessed handgun saying: at issue here else er is “The state has accused the defendant in United States v. Robin- wrong person.” as the (2nd son, Cir.1976), F.2d 110 was entitled majority The cases that the as dismisses support evidence to his conten- to introduce identity” clearly applica “mistaken cases are tion that someone else robbed bank ble here. It makes difference whether (reversing a trial that case. See id. at 112-13 party the third “looks like” the defendant under Rule 403 court’s exclusion of evidence (“mistaken identity”) or not: if the defen like the defen- that an individual who looked supports dant’s evidence the fact that anoth suspected of armed robberies dant was two person responsible er he—was for the —not days in the area within six of the bank same crime or otherwise establishes the defen robbery for which the defendant was innocence, dant’s that evidence is relevant charged). and must be admitted in all extreme but Evi- purposes For of the Federal Rules of Chambers, situations. See also at U.S. Constitution, the “mistaken dence and the 298-303, (holding at 1047 S.Ct. that exclu identity” majority, cases cited see hearsay party sion of evidence that a third 744-45, are identical “mis- told others that he shot the victim was a possessor” ownership” taken or “mistaken process despite violation of due the fact that here, presented situation and the party the third was never “mistaken” for the making a offers no rationale for distinction defendant); Alexander v. United between the two.4 “Fundamental Standards 353, 356, 11 34 L.Ed. 954 Relevancy require ... the admission of (1891)(noting that the exclusion of the defen testimony prove person that a tends person dant’s that another than the defendant committed the searching armed and for the eventual murder charged.” crime that ... might require victim be “such error as to (9th Cir.1980) Armstrong, 621 F.2d “might reversal” if such have a ma (citing reversing convic- numerous eases and bearing upon terial the identification of the robbery tion bank because the district murderer”). pos Spencer was accused of court excluded evidence that another precedent clear sessing a firearm: our makes bank). possessed bait bills evidence that that he was entitled precise, Spencer’s To be contention is possessed weap someone else—not he — knowledge not have on. hidden beneath the seat of the car in which passenger, Spencer wished to intro- he was a and he therefore did not The evidence that relevant and crucial to his sole possession weapon. have He tried to duce was with which he was that in fact the in someone defense to the crime show was “[Wjhere proffered charged. the evidence is else’s owner of the vehicle —the value, placed probative and will not weapon who had the where it was of substantial confuse, Sitting prejudice in car in to or all doubt should found. someone else’s tend which, one, admissibility.” in favor of Holt unbeknownst to the owner has be resolved clear, dissent, disputed Agreeing my original majority evidence was far from makes cumulative, the 4. longer argues identity” and it was crucial to de- that the “mistaken my apply type view that the "mistaken do not to circumstances fense. I adhere to cases Instead, rejected by identity” Spencer, and cases cited involved here. it now finds those cases opinion majority as "not dispositive” implied ground in its amended "not that the argument strongly support dispositive," his free to exclude cumulative district was excluding evidence. my the district court erred in evidence. at 744-45. As dissent (5th any evidence that despite lack of cution F.2d v. United weap- murder guns was the of these Cir.1965). supra, either Here, noted as have Moore, on); F.2d v. States United admit refusal to court’s district (10th Cir.1977) (permitting the introduc- only was not sought to introduce materials were Rules, explosive of evidence but also tion Federal improper under both be- residence in the defendant’s funda- found Spencer of his deprived may well a court- placed after a bomb fore and process to due right mental act). latter prosecution in a house F.2d at 636 Compare with law. 403(b) ability to introduce government’s part Despite Rule under (excluding evidence prove that the defendant acts” to margin- “similar excluded “the evidence because (and defense). committed person) an not some other ally to Hooton’s relevant” offense, today permit to my colleagues refuse VI to “similar acts” to introduce a defendant (and not the de- prove that another unintentionally, my colleagues ex- Perhaps fendant) here, possession committed the increasing- of an pand hasten the creation act — the defendant handgun which of a in criminal ly common double-standard —with view, is, my as charged. a rule well Such in- prosecutors that allows cases —a standard circuits, clearly im- that of several other as introduc- leeway respect ordinate proper.5 to the defendant evidence harmful tion of introducing defendants precluding while to establish their Conclusion that would tend little doubt that I have innocence. judges have discretion to make District the seat of with a been found had admissibility of regarding evi- rulings the time he was his cars around another of duty appellate it is the dence. offense, my col- for the arrested rulings do not ensure those courts to a dis- to reverse leagues would hesitate right a full of their deprive defendants suppression of such evidence. court’s trict Today, despite clear com- fair defense. Butcher,

See, 926 F.2d e.g., v. United States Rules of Evidence and mands of the Federal Cir.1991) that, (9th (holding 815-16 Constitution, duty. Spenc- in that we fail possessing prosecution of a defendant and re- be reversed er’s conviction should car, in his a firearm located I dissent. Accordingly, manded.6 weapons and two defendant’s home contained offense); prove was admissible narcotics Epilogue Brown, 768, 770-71 (9th Cir.1985) has opinion, In its amended (holding that evidence that analysis on much of the of the defen- abandoned found under the seat original decision. its conspir- purportedly based prove a ear was admissible to dant’s heroin); principally is its erroneous it retains acy import also States What see Cir.1984) Covelli, court acted within conclusion that district refusing permit discretion a Rule the introduction —over (permitting uniquely probative of pos- introduce evidence objection past the defendant’s —of to his highly material de- prose- his innocence handguns in a murder of two session 404(b)” theo- adopted the “reverse circuits have the Constitution Because I believe that ty). require the admission Rules 401 and 402 introduce, sought I need argument Fed. alternate reach majority's treatment both I believe that 404(b) that same result. R.Evid. mandates Cf. and the issue comments the search seizure claim). (rejecting at 744-45 regarding made the district original position majority has now abandoned its erroneous; moreover, may in the latter also case, be may a "reverse defendant not raise that a compound the court’s serves action 404(b)” acknowledging implicitly argument, for this the basis dissent. error that constitutes However, point. this See United the dissent is correct on reverse exclu- because would (3rd Stevens, States v. issue, reach I need not these sion of evidence Cir.1991) (reversing on that basis and conviction grounds. alternative noting federal that numerous state and conclusion is announced as fense. That despite discussion

holding the absence why the evidence—the explanation as to objective fa-

only independent and on the central issue in the

vorable confusing or have

case—would been majority’s That the conclusion

wasted time. enough. That it consti-

is incorrect is bad authority an abdication of its

tutes both ruling a critical of the district court

review wholly unreasoned endorsement of the court’s action is far worse. The dis-

lower ruling deprived

trict court’s the defendant of decision,

a fair trial. The both form, original simply and amended rub-

ber-stamps wrongful Any action. defen- judicial

dant entitled to more from the

system. America,

UNITED STATES

Plaintiff-Appellee, LOPEZ-VASQUEZ,

Arturo

Defendant-Appellant.

No. 92-50271. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Jan. 1993.

Decided Feb. 1993. Rehearing

As Amended Denial

Rehearing En Banc June

Dissenting Opinion from Order Rehearing

Denial of En Banc of Judge O’Scannlain

Aug.

Case Details

Case Name: United States v. John Edward Spencer

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 7, 1993

Citation: 1 F.3d 742

Docket Number: 91-10051

Court Abbreviation: 9th Cir.