27 F.3d 1403 (9th Cir. 1994), 93-50102, United States v. Hernandez

Docket Nº:93-50102.
Citation:27 F.3d 1403
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Robert HERNANDEZ, Defendant-Appellant.
Case Date:June 24, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1403

27 F.3d 1403 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


James Robert HERNANDEZ, Defendant-Appellant.

No. 93-50102.

United States Court of Appeals, Ninth Circuit

June 24, 1994

Argued and Submitted March 8, 1994.

As Amended Sept. 21, 1994.

Page 1404

David J. Cohen, Cohen, Hubachek & Riggs, San Diego, CA, for defendant-appellant.

Steve Miller, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: WIGGINS and T.G. NELSON, Circuit Judges, and EDWARD C. REED, Jr., [*] District Judge.

Opinion by Judge T.G. NELSON.

T.G. NELSON, Circuit Judge:



James Robert Hernandez (Hernandez) appeals his conviction under 18 U.S.C. Sec. 922(g)(1) for being a felon in possession of a firearm. He makes several arguments on appeal including that the district court erred by denying his motion to suppress; that it abused its discretion by allowing the jury a transcript of a witness's testimony during deliberation; and that there was insufficient evidence to convict him because his stipulation to a prior felony was not sufficient. 1 We hold that the district court did not err in denying Hernandez's motion to suppress evidence and that the stipulation to his prior felony conviction was sufficient to fulfill an element of Sec. 922(g)(1). However, we reverse on the grounds that the district court abused its discretion by allowing the jury to have a transcript in the jury room during deliberation without taking adequate precautions to avoid undue emphasis.



Hernandez was indicted by a federal grand jury on one count of being a felon in possession of a firearm with an armed career criminal enhancement in violation of 18 U.S.C. Secs. 922(g)(1) 2 and 924(e)(1).

On February 23, 1992, police officers Gregory Sadar (Sadar) and Lee Timmerman

Page 1405

(Timmerman) were taking a domestic violence suspect into custody outside an apartment building. While escorting the domestic violence suspect, Timmerman observed a man dressed in dark clothing jump over a fence into an alley and run to the apartment building's gate. Suspecting illegal activity, Sadar approached the suspect, announced he was a police officer, and stated that he needed to talk to him. As Sadar approached the suspect, Timmerman saw the suspect reach with his right hand to his waistband in a drawing motion. Sadar testified that as he walked towards the suspect, the suspect looked directly at him and then turned and attempted to climb over the gate. Sadar grabbed the suspect, and a brief struggle ensued. The gate burst open; Sadar fell down; and the suspect began running. Sadar took cover behind a pillar, drew his gun, and saw the suspect draw a gun from his waistband. After he drew the gun, the suspect stopped, looked over his shoulder directly at Sadar, and then threw the gun which bounced off a nearby pickup and landed in the grass. The suspect continued to run, jumped over a fence at the end of the apartment complex, and ran down the street. Timmerman broadcast a description of the suspect, and approximately four or five minutes later, two other police officers apprehended Hernandez hiding behind a cinder block wall. At trial, both Sadar and Timmerman identified Hernandez, the defendant, as the suspect.

Prior to trial, Hernandez moved to suppress evidence arguing the police did not have reasonable suspicion to detain him for questioning at the time he was initially approached by Sadar. The district court rejected this argument and denied the motion to suppress.

Also prior to trial, Hernandez and the Government stipulated that Hernandez had been convicted of a felony prior to February 23, 1992, the date of his arrest. The district court clarified that Hernandez understood evidence regarding a prior felony conviction would not be presented to the jury and that through the stipulation he was giving up his right to have the jury determine he had a prior felony. Hernandez indicated that he desired to stipulate to the felony conviction and understood the element would be taken away from the jury.

After trial, during deliberation, the jury requested by note to hear Sadar's testimony again. The request was made on a Friday after only a short period of deliberation. The court urged the jurors to rely on their collective memories to determine the facts of the case. The jury relayed that its final decision was based on Sadar's testimony and asked the court to reconsider its request. Again, the court urged the jurors to rely on their recollections, and if they could not, then to narrow the request. The jury responded that it specifically wanted to hear Sadar's testimony regarding his encounter with the suspect at the gate and his description of the suspect. The court informed the jury that it would comply with its request, but that it should continue to deliberate.

Following the weekend, on Monday, the court provided the jury with the entire transcript of Sadar's testimony, including both direct and cross-examination. Hernandez vehemently objected to providing the testimony to the jury in any manner. In the alternative, Hernandez requested the transcript be read to the jury in open court; this request was denied. Finally, the court denied his request for any limiting instruction regarding the jury's emphasis of the transcript. After receiving the transcript, the jury deliberated for approximately ninety minutes before finding...

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