*1 America, UNITED STATES Appellee,
Plaintiff — DAVIS,
Ricky Appellant. Defendant —
No. 05-3809. Appeals,
United Court
Eighth Circuit. April
Submitted: 2006.
Filed: June 2006.
Rehearing July Denied 2006. *2 blunt, Gilg, argued, baggies. Jennifer L. Asst. Fed. In the main floor bed- (Michael Defender, Omaha, NE F. Public they handgun room found a hidden be- Defender, Maloney, Asst. Fed. Public spring tween the mattress and box brief), appellant. bed, jeans ly- in Davis’ which were $2100 *3 dresser, on ing top pile of the men’s Norris, Atty., Michael P. Asst. U.S. clothes, shoes, pairs several of men’s Omaha, (Frederick and a Franklin, NE D. Asst. Atty., brief), receipt county from the health appellee. department on U.S. They with Davis’ name on it. also recov- MURPHY, MELLOY, Before and photographs displayed ered and stored in GRUENDER, Judges. Circuit pictured home with which Davis his friends. MURPHY, Judge. Circuit
juryA Prior Ricky being convicted Davis of to trial Davis raised several evi- possession firearm, in felon of a in viola- dentiary objections. argued He any § tion of 18 922(g)(1), U.S.C. and he was hearsay alleged marijuana regarding his to appeals, sentenced 63 months. Davis sales should excluded and offered to arguing that there was insufficient evi- admit that the officers had a search valid object- to dence sustain his conviction and warrant. . The district court declined to ing to admission to evidence related objection rule on the at that time. Davis stop a traffic and search warrant. We also filed a motion in limine to exclude affirm. stop evidence of McCowin’s traffic under
Officers of the Omaha Depart- any Police Federal Rule Evidence 403 because ment learned from a confidential informant probative value of the evidence would be Ricky selling marijuana Davis was substantially outweighed by danger a residence located at 3921 North 45th prejudice unfair and confusion is- They Street. applied for search war- prohibited govern- sues. The court rant, being and it was processed while ment from mentioning stop the traffic dur- they up set surveillance to monitor traffic ing opening open statement but left from and the residence. Surveillance question of whether it could be offered officers saw a stop car at the and house during its in case chief. go watched a man out get up and During the direct examination of Officer ap- front door and return to the vehicle trial, Joseph Baudler Davis hear- raised proximately ten minutes later. After he say relevancy and objections to off, questions drove stopped officers the car and about basis the search. The identified court they go up the man seen had objections They the house as Burnell sustained the raised by McCowin. bag marijuana found a jacket permitted prosecutor his but to introduce pocket. page the first of the warrant. The face upon sheet stated that based the affidavit
Approximately forty five minutes after of officers John Waller and Edith Ander- McCowin, stopped officers executed sen there Ricky cause that the search warrant at and the residence Davis “resides or is in control” of living found Davis underwear Street, residence at 45th 3921 North Oma- room girlfriend. securing with his After Nebraska, ha, marijuana and that and premises, officers searched the first weapons marijua- floor and found a small would be there. The amount of found court na, scale, digital a partially smoked instructed the the exhibit was have that he did not his own and purpose limited dem- but “for the received slept he the bedroom. He never onstrating the reason lawfulness knowledge of the any for no other rea- firearm and denied question search testimony rejected that he had the shoes permitted testified son”. court also they Bianchi because stop traffic of McCowin and selected Officer describing the him, belong not him. marijuana present- found on over- did Davis also bag of objections ed evidence that Tommie’s name was ruling made Davis. bag and that found on lease what was officers testified about Other bags different from McCowin was Sergeant David during found search. commonly used in kitchens. Davis had admitted Bianchi testified that *4 judgment acquittal the found Davis moved for a that he owned men’s shoes residence, government’s Davis he the case in that told officers end the the a and at the conclusion of evidence. specific pair to wear shoes chief wanted motions, in, reject- he The district court the and they took him and that denied when guilty him a pairs jury first three taken to as the the returned verdict. The ed the impris- him to court sentenced 63 months wrong ones. Other witnesses testified onment, argues marijuana appeals. found and Davis He bag containing that the the was insufficient to sus- baggies on McCowin was similar to that the evidence conviction, his that introduction of the pic- found in the residence and that the tain first of the search warrant was im- displayed page and stored in the residence tures that the court abused its dis- proper, were of and his friends. and Davis by permitting evidence of the traf- cretion his sis- Davis called own witnesses. His stop. government fic The counters that renting that was ter Tommie testified she more than sufficient to there was evidence the residence and that she had taken the conviction, the that court did uphold Davis’ it the gun nephew from and hid under her evi- by permitting its not abuse discretion of it. She dispose mattress until she could presence the stop dence of the because given that she had Davis a also said just after his visit to drugs on McCowin his evening so that he could entertain that dealt likely it that Davis Davis made more and the men’s guest at residence that her firearm, possessed and that drugs and the clothes shoes in bedroom were necessary to of the warrant was evidence hers because she wore them comfort for the search. It provide jurors “context” house. Davis’ sister around the Sharon that error the dis- also maintains Ricky that would visit house indicated evidentiary rulings be court’s would trict dogs kept pit to feed the three bull he overwhelming evidence given harmless that the reason there. McCowin testified guilt. of Davis’ car was stopped he his at the house so argues that his conviction should obtain a car from passenger his could there was insufficient who be reversed because passenger Davis and that was jury to conclude he admit- evidence gone up had to door. McCowin reviewing In occasionally marijuana possessed firearm. used ted he evidence, we view the marijuana sufficiency of the getting denied with Davis but light in the most favorable testi- evidence evening. him that Davis also from if no jury and will reverse marijuana he verdict fied and admitted that used jury found the de- could have drugs all of the in the residence reasonable and that Ramirez, v. guilty. United States him. that he used fendant belonged to He testified (8th Cir.2003). The girlfriend 783 house entertain his sister’s upheld will from health long gov receipt county verdict so as the found department on produced ernment sufficient for a with Davis’ name on it evidence Although dresser next to the bed. jury reasonable find the elements of the jury conflicting testimony, heard conflicts beyond doubt. offense reasonable Unit Ruiz, (2005). the evidence are for the to resolve ed v. States will findings and we not disturb its factual To obtain conviction under 18 Brown, appeal. United States § government 922(g)(1) U.S.C. must (8th Cir.2005). F.3d (1) “prove beyond a reasonable doubt reasonably could infer from circum previously the defendant has convict been stances Davis had exercised construc punishable by ed of crime possession tive firearm. imprisonment exceeding year, term of one Davis also asserts that the dis (2) knowingly possessed the defendant trict by permit court abused discretion firearm, (3) firearm has been or ting jury to hear the traffic has affected interstate commerce.” Unit stop Although McCowin. Burnell he Urick, (8th ed recognized concedes that we have a “corre Cir.2005). stipulated Since Davis *5 drug dealing weapons”, lation between elements, first and the only third issue is White, 865, United States v. 356 F.3d 870 upon whether there was sufficient evidence (8th Cir.2004), argues he that evidence of which the jury could have found that he marijuana shortly the found on McCowin knowingly possessed firearm. the stopping by after Davis’ should place have The can government prove con been stopped excluded because he was sev possession by structive showing the away gun eral blocks from where the was premis defendant had “dominion over the unfairly found. is “not prejudi Evidence located, es where the firearm or [was] merely cial party’s because it hurts a control, ownership, or dominion over the case”, United v. Emeron Taken Claybo firearm itself.” United States v. Alive, (8th 711, Cir.2001), 262 714 F.3d (8th urne, 790, Cir.2005). 415 F.3d 795-96 testimony there was that McCowin had Although proximity evidence of mere is an gone residence, up stayed for less ground conviction, insufficient uphold minutes, than ten and was then found with Urick, 303, 431 at pos F.3d “constructive marijuana packaged in bags similar to can by session be established a showing those found in the residence. The district that the firearm was seized at the defen by court did not abuse its con discretion' dant’s v. Boyd, residence.” United States cluding that the was evidence relevant to (8th 967, Cir.1999). 180 F.3d 978-79 jury the issue knowingly of whether Davis possessed the firearm. See United States The jury testimony heard credible Claxton, 420, (8th v. 423 Cir. allowing it to find that Davis resided at the 2002). residence and pos exercised constructive of session the firearm. Along argues with testi Finally, Davis the mony pictures of Davis and his friends district court in permitting gov erred the throughout house, were found officers ernment introduce the first of page multiple testified men’s clothes and hearsay, warrant because it it contains vio pairs of right men’s shoes were found lated to confrontation under the Amendment, gun bedroom where the probative was located. Sixth and its value Moreover, kept pit Davis his three bulls in substantially outweighed by preju was its yard the back of impact. the home dicial government and officers counters
847 Application hearsay cluded under Rule 403. of because the warrant was “not purpose requires comparison the limited that rule introduced for was were establishing why prejudicial officers value and ef- probative generally evidence, residence. We present of the disputed fect but of evidence a trial court’s admission prejudicial review probative relative value and ef- discretion, United States for an abuse any evidentiary fect of alternatives.” (8th Cir.1994), but 732 King, Becht, United States v. F.3d objections re- clause are confrontation (8th Cir.2001). page The first of the war- Lee, de novo. United States viewed rant that on the of the indicated basis Cir.2004). (8th If evidence F.3d testimony of Officers Waller and Andersen con- admitted violation of Davis’ were judge had concluded there was state then rights, question frontation would cause that lived resi- beyond the error was harmless whether drugs dence and that and firearms would Id. at 644. reasonable doubt. be found there. Since issue case was whether house was Davis’ is than Hearsay a statement “other residence, danger that the face there was testifying made the declarant while one unduly sheet could influence the hearing, at the trial or offered danger was factfinding. This underscored asserted,” prove the truth matter closing argument prosecutor’s 801(c), hearsay a statement is not Rule but page which referred to face purpose “if it is for the limited offered pieces as “one of first evi- warrant police investigation explaining why in” that came and told the dence Watson, States v. undertaken”. United [the officers] that led to “information (internal (8th Cir.1991) *6 important do was and wanting to a search” omitted). ad The district court citation time to jurors that the should take some purpose the face sheet such mitted Given the warrant] “look over.”1 [the jury war and also the that the instructed and danger that the could be confused purpose the rant “for limited was received of the prejudicial that the effect exhibit demonstrating and lawful of the reason value, we outweigh probative could con- no question the in and for ness of search an abuse of discretion to clude that was this con other reason”. Given record we warrant, partic- face admit the sheet that district court did not abuse clude the to admit ularly willing Davis was when overruling hearsay Davis’ its discretion legal basis to the officers had objection overruling or err confron search. Moreover, objection. the tation clause on basis of the
warrant was issued the Davis is not entitled testimony and affidavit of Officers Waller of the warrant was relief if admission and both testified at trial Andersen who Oman, v. harmless error. United States for cross examination. See were available Cir.2005). (8th 1070, An 427 1076 F.3d 777, States, Stops v. United 339 F.3d Bear if not harmless it “does affect error is Cir.2003). (8th 781 defendant, rights” of the Fed. substantial 52(a), and not influence or R.Crim.P. “did argues that the first also slight influence on the verdict.” only ex- had page of the warrant should have been given the object an effect the outcome prosecutor's clos- merits had 1. Davis did not overwhelming guilt. United evidence of See argument argue ing at trial. He does Johnson, (8th it, v. trial of and States he is entitled to new because Cir.2005). prosecutor's com- the he has not shown that Carroll, doing F.3d 470 what the were at defen- [the v. United States Cir.2000). (8th government girlfriend’s] apartment in the first presented The dant’s guilt. place”). Ordinarily, face overwhelming Davis’ the sheet of evidence of would, Smith, solely 429 search warrant provide United States (8th Cir.2005). probable The heard there is cause to believe that wearing may underwear certain evidence or contraband that Davis was specific at officers executed the warrant found at location. when residence, clothes shoes men’s face search warrant in sheet in gun where the were found the bedroom the instant case makes the unusual addi- hidden, receipt and that his from the finding tional cause believe county department health was on the premises that Davis at to be resided pit kept dresser. Davis three bulls searched. such an find- While additional residence, pictures and officers found cases, ing I problematic could be some house, throughout him with his friends am not convinced that the inclusion of this scale, along marijuana, digital with and a finding results in the probative value of the White, partially smoked blunt. See being substantially warrant face sheet out- Moreover, F.3d at 870. the district court’s weighed by prejudice danger unfair jury’s instruction limited use confusion, or required as under Fed. a proper purpose. evidence to United inadmissibility. R.Evid. 403 to establish It Thomas, (8th true, notes, certainly is as the Court Cir.2005). We therefore conclude that the residency Davis’s over or control admitting error warrant was harm- However, house was a issue trial. less. immediately gave court district
Accordingly, affirm judgment we limiting instruction face sheet was district court. purposes be “received the limited demonstrating reason and lawfulness GRUENDER, Judge, Circuit question of the search in and for no other concurring. reason than that.” Because the district limiting court an judgment gave appropriate I concur full in the instruc- *7 tion, opinion I that except finding the Court’s as to believe the additional finding of error in the into cause set forth in the face of admission evidence of sheet sig- warrant the face sheet of the search warrant search should not have a under balancing nificant effect on the Rule Federal Rule of Evidence 403. I would Karam, test. find that the err See United States district court did not (8th Cir.1994) 1280, admitting (holding that this the face sheet of the search war- required Court is to that rant. assume limiting given by followed the instructions that, I a general proposition, believe as court). the district admitting into evidence the search warrant face sheet can be con- proper to show the The Court notes in applying presence test, text law balancing enforcement and the Rule 403 we should consid- of lawfulness the subsequent probative search. er the preju- “relative value and Cf. Wilson, United States v. any evidentiary dicial effect of alterna- (7th Cir.1991) that, tives,” Becht, (holding (quoting without ante at explain 773), evidence willingness of warrant to the offi- and cites Davis’s “to presence, cers’ “would have been admit that the officers had a to legal basis scratching left its collective head about as evidentiary search” an alternative admissibility against weighing America, agree I face sheet. UNITED
search warrant STATES pres- stipulation that law enforcement Appellee, duly a search warrant ent to pursuant judge would lessen authorized DAVIDSON, Appellant. Diallo admitting the value of search probative and, tip the perhaps, warrant itself balance No. 05-1224. inad- analysis in favor of the Rule 403 of Appeals, United States Court However, I missibility. am not convinced Eighth Circuit. willingness stip- to Davis expressed in this case. When the Government ulate Submitted: Jan. 2006. face sheet for at trial offered the warrant Filed: June 2006. evidence, Davis did admission into to purported offer point previous to Rehearing Banc Rehearing and En stipulate at nor he offer to stipulate did July 2006.* Denied objection. Pri- support of his that time statements, Davis’s counsel opening or to
merely “[t]he stated that search warrant to,” in the going
we to admit context are against the admission
arguing marijuana dealing. uncharged
related remark,
However, pretrial this even best,
context, nothing ambiguous is meant suggests record that Davis broadly so as to be it to be construed
stipulation present were duly author-
pursuant to search warrant judge.
ized the fact also relies on
The Court face referred to the sheet
Government argu- during closing
the search warrant I concern
ment. WTiile share the Court’s
regarding the Government referred how during face sheet
the search warrant light argument, especially
closing instruction, me
limiting seems might been the basis
these remarks have *8 argu- objection improper based on an However, I do not find Govern-
ment. clos- unchallenged statements
ment’s relevant
ing argument particularly dur- admissibility decision made
Rule 403
ing case-in-chief. the Government’s
* of this matter. or decision participate in the con- sideration Judge Gruender did