*1 award of of whether simple issue dis- prior appeal was attorney’s fees The mo- the case. law of
positive as the concisely rais- simply and
tion, than rather issue, accompanied with legal ing that Larkin, attached corre- of David affidavits making de- counsel
spondence opposing to fees, payment of immediate mands for submit- previously of briefs copies pages documents, let-
ted, court copies of district David Larkin
ters from unnecessary and extrane-
numerous other beyond the far that were
ous documents David Larkin raised. sought
issue $1,440 attorney's fees
also request- motion and bringing the costs $2,880. they ed bе doubled could have been legal issue discrete citation to succinctly with
presented appropriate authorities.
prior opinion and in an presented
Instead, the motion by bur- accompanied style,
overaggressive pa-
densome, unnecessary and irrelevant presentation oral Mr. Larkin’s
perwork. qualities, unprofessional the same
reflected from consider- seriously detracted
which We of the merits
ation order reconsider the
therefore decline
awarding sanctions. $250 court award- judgment of attorney’s fees AFFIRMED.
ing the imposition
The reconsideration
sanctions DENIED. America, STATES
UNITED Plaintiff-Appellee, PALMER, Defendant-
Mark Brock
Appellant.
No. 91-30291. Appeals, Court
United States Circuit.
Ninth 4, 1992. Nov.
Argued and Submitted April
Decided *2 Schweda, Schweda, &Waldo S. Peter defendant-appellant. WA, for
Spokane, Hicks, Earl A. Byerly J. Pamela WA, plain- Spokane, Attys., U.S. Asst. tiff-appellee. POOLE, WRIGHT, HUG
Before: Judges. Circuit Judge: POOLE, Circuit appeals Brock Mark Appellant or manufacturing 100 his conviction violation marijuana plants, in more February 12. 1:20 a.m. on 841(a). argues approximately U.S.C. § (1) mo- denying grow op- marijuana revealed a district court erred The search (2) post- admitting his suppress, Dudley, tion to ac- in the basement. who eration (3) denying his arraignment statement residence, companied deputies to the part, re- We affirm motion to dismiss. removed, sample examined obtained *3 remand. part verse marijuana plants during the execu- tion of the search warrant. I. subsequently arrested on Palmer was 11, 1991, February On the afternoon charges. arraign- drug After his federal Deputy arrested County Sheriff Spokane District ment in the United States Court deputy smelled a Jack Roberts after Washington, District of for the Eastern coming marijuana from Rob- strong odor following to made the stop. traffic The during a erts’ vehicle officials: “I don’t federal law enforcement for the search deputy a warrant obtained through any deals. I have been want bags several obtained of the car and just get I it me.” before. want to behind marijuana therefrom. Walker, had information Deputy Cal who objection Palmer made an to Before trial marijuana at regarding growing Roberts’ any prior of his the admission of County, met Spokane various locations conviction based on Fedеral of Evi- arrest. shortly after his Rob- with Roberts 404(b). to dence Palmer made a motion to Walker and direct- gave erts a statement preclude the same evidence on the same grow marijuana at a ed him to the site of beginning The basis at the of trial. Long Lake Road near residence on West not rule on the or mo- court did Ford, Washington, Palmer lived with where before the commencement of trial but tion stated that he his two children. Roberts parties to address the issue instructed the conducting marijuana and Palmer were making any reference the court before with operation in the residence. grow evi- any material that could constitute Lieutenant Michael supervisor, Walker’s time, prior of a conviction. At this dence Drug Enforcement Ad- Myhre, informed provided parties with (DEA) Agent Dudley John ministration cases related to Palmer’s several Myhre because Roberts’ statement about in- and motion. The district court did not prior the DEA had involvement knew that objection or motion form Palmer that his previously been with Palmer. Palmer had trial, renewed at as it had on had to be intent possession with to dis- convicted other matters that were raised before trial. subject marijuana had been the tribute During conference in the course а bench investigation. being After DEA cross-examination, prosecu- of Palmer’s informed, Dudley provided information re- tor notified the court that he intended to history to garding Palmer’s criminal Walk- statement, post-arraignment introduce the er, sup- preparing an affidavit who was referencing prior previ- conviction issue Long for the port of the search warrant indicating ously addressed the court and relayed Dudlеy also Lake Road residence. investigation post-arraignment statement was regarding the information Attorney, who The an Assistant United States admissible show Palmer’s motive. government indicated that the federal argued during also the bench prosecuting the case would be interested conference that the statement was admissi- plants marijuana if more than 100 were impeach credibility. ble to found. district court rulеd the bench con- government al- ference that the would be a search warrant Walker obtained question post- lowed about Long residence Lake Road from the arraignment only statement. This was the Spokane County District Court at 11:57 regarding ruling the district court made p.m. February 11. The warrant was prior deputies and other evidence of Palmer’s conviction. executed Walker conference, Gеnerally, a search is federal if follow- After bench beginning from the it was assumed a feder exchange ing occurred: prosecution al would result. See United Q you say, “I want deals. Did don’t Radlick, I through I this before. have been Cir.1978). depu The record shows that the me,” get sir? just want to it behind investigation merely ties initiated Yes, anything A I because didn’t do provided information to the DEA. The rec wrong. scared to talk to him. I wasn’t deputies ord also shows that would before, Q through You it have regardless search have warrant though? Dudley’s Agent involvement. rec through A Been what— ord further shows that the United States Q Selling marijuana before. Attorney prosecuting no intention of *4 this case before the search occurred. This Crawford, in case is therefore unlike which [Question not answered] agent the enlisted the assistance of federal exchange to this prosеcutor The referred pending investigation local in a officials argument, stating during closing his that and the local officials later initiated their previously been “Mr. Palmer testified he’d investigation help own with the of the fed sub- in distribution of controlled involved agent. Crawford, F.2d at eral See 657 me, he said stances—marijuana, excuse investigation 1043-46. The in this case The also wrote marijuana....” by was and controlled the locаl initiated post-arraignment Mr. Palmer’s law enforcement officials involved. jury for the on the courtroom’s chalkboard Certainly, Dudley participated in the argument. closing his and drafting of the warrant the search However, a the residence. federal officer’s II. does participation” “mere in a search not argues that Palmer the Byars, 273 it a federal one. See U.S. make suppression denying mo court erred 32, 249. 47 at The federal involve- S.Ct. comport did tion the search not because significant in the was not ment search with Federal Rule Criminal Procedure one. enough to make the search federal 41(c), there requires which warrants issued MacConnell, 868 F.2d See United States daytime. The under to be served Therefore, Cir.1989). 281, the 283-84 legality of ultimate conclusion of the finding that the search was district court’s question of seаrch is a mixed law fact clearly 41 is not governed not Rule v. Thom reviewed de novo. United States erroneous.1 Cir.1988). as, 622, The are reviewed for underlying factual issues III. clear error. Id. argues that the district Palmer post-arraignment admitting his court’s par Dudley’s that Palmer contends Federal Rule Evi statement violated ticipation Long the search of Lake 404(b). at tri properly When raised dence search made it fedеral Road residence al, evidentiary issues for an review such we However, subject to 41. Rule does of discretion. United States abuse performed local apply not a search (9th Cir.1989). 1012, Brown, is “federal in the search officials unless However, contemporaneous objec absent v. Craw United States character.” See tion, normally plain for error. review (9th Cir.1981). ford, 657 F.2d Houser, See United States essentially a search is federal Whether Cir.1986). governed by Rule 41 is a one and thus as to dispute in this case inquiry. Byars There is a See v. United factual 248, 249, preserved this issue Palmer has States, 273 47 S.Ct. 71 whether U.S. not re- the record does appeal. While (1927). L.Ed. 520 state challenge search under law. does not lawfulness of explicit and ruling was trial court’s contemporaneous made a that fleet appeal. definitive, preserved thе issue contends government objection and made, Palmer at 1413. Id. objection no such that ob- contemporaneously he did that contends the circumstances As in was somehow objection ject and issue has case show an occurrence Because recorded. The district preserved for attempt to should the court impossible, wheth- to determine ample opportunity had imaginatively trial the whole “re-live conviction prior er evidence of in isolation episodes from extract not to post-arraignment and, specifically, proce- questions abstract court care- statement, admissible. States, 318 U.S. v. United dure.” Johnson objection and pretrial fully considered 87 L.Ed. 189, 202, 63 S.Ct. on the motion, doing independent research concurring). J., (Frankfurter, (1943) dur- providing cases discovered issue suggest in this case сircumstances trial. parties before to the ing this research may contemporaneous that a to take proceeded The district court confer- during the bench have been made: submission. under motion objection and some un- expressed ence, judge with Furthermore, parties, consistent certainty to whether as instructions, issue raised court’s *5 objec- on the made, stating: “I’ll rule been court in the which сonference the bench one, I don’t believe was but tion if there statement post-arraignment ruled that the Additionally, prosecu- the one.” there was Palmerin, re- admissible. Similar was during the bench confer- tor’s statement imme- objection contemporaneous quiring to a ambiguous reference makes an ence has denied diately after the uncertainty such Where objection. defense same on thе and motion objection pretrial proceed exists, may it be better of result perverse have the grounds would in- likely prevent most will manner which See master of substance. making form the for preserved the issue deem justice and Id. 695 Eagle, Red v. M/V Shows Cf. Cir.1983) (holding (5th issue 114, 117 F.2d party to requiring a of purpose The similarly spite of a appeal in preserved for the district object is to ensure that timely record). uncertain рoten any to cure opportunity an court has Estelle instance. first See errors the tial rely need to on is no But there 501, 3,n. 96 S.Ct. Williams, 425 U.S. in this case. presumption a benevolent (1976); 48 L.Ed.2d 1695 n. trial, Palmer object not at if he did Even 1413. The district F.2d at of the ad the issue sufficiently preserved of Palmer’s clearly on notice court was state post-arraignment missibility of his post- of the to the admission opposition 404(b) appeal for bоth under Rule ment on Rule based arraignment statement exclusion on moving for its objecting and rule on opportunity to 404(b) an and had of tri the commencement this basis before admitting post-arraign the issue this Riverside, 794 City al. In Palmerin of justice The interest ment statement. Cir.1986), rejected an we F.2d 1409 Palm requiring furthered not be would requirement that invariable objection. an additional er to have made must motion pretrial of a subject is the that court’s the district review We therefore at 1412-13. at trial. Id. always renewed be objection and motion2 of Palmer’s denial of an the substance held where We that of discretion. an abuse explored and for thoroughly been has conference, that he had statement ous. Palmer’s During bench 2. was that he "through is not evidence this before” post-arraignment state- court also that held therefore of a сrime and was convicted impeachment as evidence ment was admissible United Rule admissible under 609. While Rule of Evidence under Federal Cf. Cir.1990) (al- Perkins, contemporaneously object Palmer did impeached state- with his lowing to be a witness admitting ground, the district court’s this crime). aof had been convicted that he plainly ment errone- Rule 609 was statement under trial,3 marijuana. Roberts, growing who had At time of 404(b) great favorably testify motivation to Rule stated: for Government, that Palmer testified crimes, wrongs, or of other acts Evidence govern with him. equally involved The prove is the character not admissible only ment not statement conformity introduced person therewith. It however, during Palmer’s but for other cross-examination also may, admissible motive, proof oppor- argued purposes, such as based on statement that Palmer intent, рlan, tunity, preparation, marijuana previo knowl- engaged in the sale of edge, identity, or absence mistake or usly.4 possibility prejudicial of such accident. argument precisely why Federal 404(b) Evidence excludes evidence of In to be admissible under Rule order crimes, acts do wrongs or that not establish 404(b), be intro charged element of a offense. material material element in duced must establish a Brown, 1013-14. In See this Spillone, the case. See United States v. ease, the district court characterized which Cir.1989), cert. 518-20 “straightforward swearing as a contest” denied, 111 S.Ct. 498 U.S. Roberts, there between defendant and (1990). government ar L.Ed.2d finding the jury no would basis gues post-arraignment statement that the However, have nonetheless convicted Palmer proves evidence of motive. damning absence evidence. The does not establish a mate Palmer’s motive post-arraignment of the state rial of the offenses on admission element of requires he tried. There was no basis ment therefore reverse which admitting post-arraignment state for a Palmer’s conviction and remand new 404(b). ment under Rule trial. The admission *6 IV. probably
requires it af reversal because argues being that his fed the v. fected verdict. See United States charged process his due erаlly violated Soulard, 1292, (9th F.2d 1296 Cir. 730 rights.5 equal protection Palmer contends 1984). of impact We consider the must he, Roberts, that like should have been particular error based on the facts prosecuted in state court and that the dis case us. See Glasser v. United before the case trict court should have dismissed 60, 67, 463, States, 457, 315 S.Ct. 86 U.S. 62 against him. We review de novo the denial (1942). theory of L.Ed. 680 Palmer’s de dismiss on a violation motion to based simply he had moved onto fense was that rights. v. any part in of constitutional United States property and did not have below, ously the sale of controlled been involved in For the reasons set forth misrepresentation a of admitting was blatant substances” error in this statement re- court’s Palmer never made state the record. such quires reversal. given is wide lati ment. While vigorously closing argument may tude in 1991, 1, 404(b) was 3. Effective Deсember argue the evi all reasonable inferences from as follows: amended and now reads Molina, trial, 934 see United States v. dence crimes, wrongs or acts is Evidence of other 1440, (9th Cir.1991), argument should 1445 F.2d prove the character of a not admissible presented that are as not refer matters conformity may, person in It how- therewith. Vargas-Rios, v. 607 evidence. See United States ever, purposes, other such admissible for 831, (9th Cir.1979); States v. United F.2d 838 intent, motive, proof opportunity, 1411, of or (9th Cir.1989), as Gray, cert. 876 F.2d 1417 accident, provided that 930, 2168, of mistake or denied, absence 109 L.Ed.2d 495 U.S. 110 S.Ct. accused, request by prosecution upon (1990). 497 provide case shall reasonable in a criminal trial, 5. Although during reverse Palmer's conviction and or trial if the notice in advance trial, good new we must nonetheless pretrial remand excuses notice оn cause court shown, sup his denial of general consider district court’s nature of pression motions. These issues and dismissal it intends to introduce at trial. preclude a new trial. See could arise in or 243, Lucas, (9th by parties, F.2d 247 4. While not raised prosecu- United States v. 963 1992). arguing previ- that Palmer Cir. tion's "testified he’d 496 however, issues; I (9th equal dis- 569, protection Cir. F.2d 571
McDougherty, 920 — U.S. -, denied, post-ar- 111 1990), agree S.Ct. its of the with resolution cert. Cook, (1991); 227 113 L.Ed.2d U.S. raignment and would affirm Cir.1988). (9th 778 F.2d Palmer’s conviction. contention that Palmer’s majority City relies on Palmerin affords prosecution unconstitutional Riverside, Cir.1986), (9th F.2d 1409 alleged conduct relief. Palmer’s him no contemporaneous objec- to conclude that a State of laws of the both the violated tion need have been made. Conse- States; there the United Washington and proper quently, it concludes that the stan- prоsecuted fore, or could have either both review of discretion and dard of is abuse Figueroa-Soto, States him. See United that the district court abused its discretion (9th Cir.1991), cert. admitting statement. — U.S. -, 1181, 117 denied, 112 S.Ct. majority misreads om- Palmerin (1992). Additionally, separa L.Ed.2d holding in itting part of our us a crucial prohibit from powers tion concerns prosecutor’s charging decisions case. We held that “where substance reviewing a it showing that rested prima thoroughly facie has ex- absent a basis, gender, impermissible such as hearing plored on the motion in right.6 or denial of a constitutional race limine, ruling permit- trial court’s Diaz, 961 F.2d See States v. United evidence, explicit ting introduction of Cir.1992); (9th United v. Re definitive, required no further action dondo-Lemos, 1296, 1300-01 preserve appeal the issue of admissi- Cir.1992). to show that Palmer has failed Palmerin, 794 bility of that evidence.” him in federal prosecute the decision to (first emphasis original, F.2d at constitutionally im based on court was added). emphasis second factor, prosecu only permissible In defendants unsuc- charging pur not made decision was tor’s cessfully to exclude admission of evidence policy. This fact insuf to written suant guilty pleas a motion in limine. their support a claim of unconstitution ficient to rejected the Id. at 1411. The district court v. Rob prosecution. al See United States motion, holding that the evi- defendants' Cir.1992); inson, 967 F.2d and admissible. We dence was relevant Williams, United States v. object contempora- that their held failure Cir.1992). Palmer’s subse *7 1341-42 during to the of neously trial admission quent in and not state prosecution federal raising not bar them from that evidence did not unconstitutional.7 court is therefore emphasized the issue on Id. We foregoing, judgеment on the Based in part, of court is AFFIRMED the district and part in REMANDED. The substance of to REVERSED guilty pleas of the was thor- admission WRIGHT, Judge, concurring in Circuit oughly explored hearing part. part, dissenting in limine, motion the trial and explicit judge’s ruling was and definitive. disposition of majority’s I concur ruling might hint that the suppress, process to due and There was no the motion Nonetheless, basically thing wrong type compelled with this of exercise feel to comment 6. we prosecutorial of discretion in prosecutorial that the exercise discretion. of troubling. adopting gov- Even this case facts, of the there were two ernment’s view we and new 7. Because reverse remand operation, partners marijuana growing trial, legality we do reach the issue of the of not prosecuted and Palmer. Roberts Roberts being under federal rather sentenced court, jail having serving no time in state Gamble, v. than state law. See United States $1,000 imposed. fine was fine of subse- However, (9th Cir.1991). F.2d indigence, quently waived because of Rob- necessarily rul- believe that it follows from our ultimately pay only $176. to erts On the ing no on his motion to dismiss that has hand, Palmer was sentenced to a other tory manda- right law. to be sentenced under state years. minimum term of There is some- Perhaps subject tо reconsideration. nothing in the important, there America, most of STATES UNITED guilty in which context manner or Plaintiff-Appellee, that was at trial introduced pleas were v. on the any cast doubt or that unforeseen court’s in limine of the trial applicability GOODELL, Miller Edmund ruling. Defendant-Appellant. at 1413. Id. 92-30265. No. intro- trial, objected to the Before convic- prior of his duction Appeals, United States Court tion. Unlike Circuit. Ninth rule on the to сourt declined request a bench required 5, 1993. Argued March Submitted he chose to introduce if conference court deter- Only then would the April evidence. Decided admissibility evidence. mine the suggest that reconsideration did not
court Indeed, it subject was foreclosed. ruling on explicit make did not even Therefore, does
admissibility. Palmerin the need excusing Palmer from support objection. contemporaneous make a such an failed to make
Because Palmer plain error. See
objection, we review Houser, States United highly “a Cir.1986). Plain error is affecting substantial
prejudicial error Dischner, 960
rights,” States United Cir.1992), most like 870, 883 verdict, United materially affected ly 868 F.2d Bryan, denied, Cir.), S.Ct. 493 U.S. cert. (1989). Reversal 107 L.Ed.2d necessary pre
appropriate only when preserve miscarriage justice or
vent proceedings. judicial integrity at 1039.
Bryan, did Palmer’s statement
Admission of carefully error. The plain
constitute *8 government’s questioning
monitored the evidence His statement
Palmer. most, but, prior conviction theAs arraigned. he had once said, “straight this case was swearing contest” between
forward jury to believe chose Roberts. theft convic-
Roberts, who admitted two marijuana operating several and to
tions I affirm. would
grows of own.