U.S. v. Gonzales

• Decision Date: 30 September 2002
• Docket Number: No. 00-10514.,00-10514.
• Citation: 307 F.3d 906
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J.R. GONZALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

307 F.3d 906

UNITED STATES of America, Plaintiff-Appellee, v. J.R. GONZALES, Defendant-Appellant.

No. 00-10514.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2002.

Filed September 30, 2002.

COPYRIGHT MATERIAL OMITTED

Hillary A. Fox, Assistant Federal Public Defender, Oakland, CA, for the defendant-appellant.

Laurie Kloster Gray, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, Martin J. Jenkins, District Judge, Presiding. D.C. No. CR 99-00014-MJJ.

Before HUG, CUDAHY^* and TASHIMA, Circuit Judges.

OPINION

CUDAHY, Circuit Judge.

J.R. Gonzales was convicted of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1); being in possession of a controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). He was sentenced to 144 months in prison. He appeals his conviction and sentence on the grounds that: (1) the district court erred in admitting evidence that was otherwise inadmissible, solely on the ground that an expert was relying on it, (2) the district court erred in admitting expert testimony on Gonzales's mental state, (3) the district court erred in concluding that all of the drugs seized from Gonzales were for distribution, and (4) section 922(g) exceeds Congress's jurisdiction under the Commerce Clause. We affirm the conviction, and remand for resentencing.

I.

On June 6, 1998, in San Francisco, California, a plain-clothes police officer saw Gonzales and another individual engaged in a possible narcotics transaction. The officer approached the pair and identified himself as a police officer. Gonzales immediately took off running. As he fled, he pulled a gun from his waistband and threw it to the ground. Once caught, he admitted that the gun was his. Charges were filed in state court. Gonzales failed to appear in court, and a bench warrant was issued for his arrest.

On November 24, 1998, police officers spotted Gonzales carrying a green backpack near Precita Park in San Francisco, California. Once Gonzales saw the officers, he dropped the backpack and walked away from it. He was immediately arrested and searched. Seized from his shirt and pants pockets were various drugs and $243 in cash. The officers also seized and inventoried the green backpack. The backpack contained a gun, various drugs, a rental car agreement, a pipe, four cigarette lighters, a butane torch, a small spoon, cigarette rolling papers and a black leather wallet that contained both a digital scale and a notebook with three sheets listing numbers and dates.

On January 1, 1999, a one-count indictment was filed in federal district court against Gonzales, charging him with being a felon in possession of a firearm. A superseding indictment, filed March 24, 1999, added three counts arising from the events of November 24, 1998. On July 8, 1999, Gonzales pleaded guilty to count one-being a felon in possession of a firearm. Trial on the remaining three counts began on July 12, 1999. On July 15, 1999, the jury convicted Gonzales on all three counts.

At sentencing on October 12, 2000, the district court found that all of the drugs seized from Gonzales were intended for distribution. The court departed two levels downward because Gonzales had suffered physical mistreatment by guards while in custody. Gonzales was then sentenced to 144 months in prison, followed by five years of supervised release. Gonzales appeals.

II.

This court has jurisdiction under 28 U.S.C. § 1291 since this is an appeal from a final judgment of a district court. A district court's decision to admit or exclude evidence is reviewed for an abuse of discretion. United States v. Leon-Reyes, 177 F.3d 816, 819 (9th Cir.1999). A district court's decision to admit expert testimony also is reviewed for an abuse of discretion. United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir.2000). Such rulings will be reversed only if "manifestly erroneous." United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir.), cert. denied, 530 U.S. 1268, 120 S.Ct. 2733, 147 L.Ed.2d 995 (2000). The district court's factual findings at sentencing are reviewed for clear error. United States v. Frega, 179 F.3d 793, 811 n. 22 (9th Cir.1999). Findings of fact must be supported by a preponderance of the evidence. Id. We review a challenge to the constitutionality of a statute de novo. United States v. Mack, 164 F.3d 467, 471 (9th Cir.1999).

A.

The government's chief witness was DEA Special Agent Michael Heald, who was qualified as an expert in drug distribution and possession. He testified that the three sheets of paper in the notebook found in the backpack were "pay/owe" sheets commonly used by drug dealers to keep track of drug sales. Gonzales sought to exclude the pay/owe sheets as inadmissible hearsay since the government failed to identify the writer of these sheets. The district court denied that motion, but it did provide a limiting instruction that the pay/owe sheets were not being admitted for the truth of what was written on them, but rather to help the jury evaluate Agent Heald's testimony. On appeal, Gonzales argues that the district court abused its discretion in admitting the pay/owe sheets into evidence.

"`Hearsay' is a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). The pay/owe sheets would have been hearsay here if they were offered to prove the truth of their contents. On the contrary, the pay/owe sheets were offered here as "tools of the trade"; that is, to show that the items found in Gonzales' possession — the scale, the pay/owe sheets and the weapon — were items commonly used by distributors of drugs. Thus, we disagree with the trial court's conclusion that the pay/owe sheets were inadmissible hearsay. See, e.g., United States v. Jaramillo-Suarez, 950 F.2d 1378, 1383 (9th Cir.1991) (holding that admission of a pay/owe sheet "for the specific and limited purpose of showing the character and use of" an apartment does not implicate the rule against hearsay); United States v. Huguez-Ibarra, 954 F.2d 546, 552-53 (9th Cir.1992) (concluding that the hearsay rule was not implicated because drug notebooks were admitted not "to prove the truth of what was written in them" but "to show that the type of activities charged in the indictment were being carried out in the residence").

In contending that the pay/owe sheets were inadmissible hearsay, Gonzales relies upon United States v. Ordonez, 722 F.2d 530 (9th Cir.1983), amended by 737 F.2d 793 (9th Cir.1983), in which we held that the entries in a ledger constituted inadmissible hearsay unless the author of the entries had been identified. However, the ledger entries in Ordonez contained the names of the defendants and were the government's sole proof of the crime in several counts of the indictment. 737 F.2d at 800-02. Thus, the ledger entries were admitted in error for the truth that the words and numbers in the ledger asserted or implied — that the defendants engaged in the sale of drugs. Here, in contrast, the pay/owe sheets did not name the defendant. Unlike in Ordonez, the sheets here were not offered for the specific information conveyed by the writings on them but, instead, for their significance as objects closely associated with the drug trade. They qualify as "tools of the trade" and are admissible on the theory that (like the scales) such sheets were common to the practice of selling drugs.

Given that the pay/owe sheets are not hearsay, the inquiry becomes whether "there is a sufficient showing of relevance and authenticity and if [their] probative value outweighs undue prejudice." Huguez-Ibarra, 954 F.2d at 552. In Huguez-Ibarra, we concluded that the drug ledgers were "circumstantially authenticated" by virtue of being found in the same location as drugs and other drug paraphernalia, and by being corroborated by testimony of government agents. Id. at 552-53. The district court in Huguez-Ibarra gave limiting instructions stating that the records were admitted only to show the nature and use of the location, not for the truth of the matter asserted in them. Id. In the present case, the pay/owe sheets were found in the backpack with the gun, drugs, scale and other drug paraphernalia which "circumstantially authenticated" the sheets, making their relevance as evidence of drug distribution clear. The district court also gave a limiting instruction, admonishing the jury that the sheets were not admissible for the truth of the matter asserted in them. For that reason, the result reached by the district court is correct.

The district court was also correct in determining that, in any event, the pay/owe sheets were admissible for the purpose of evaluating expert testimony. An expert may base his opinion at trial on inadmissible facts and data of a type reasonably relied upon by experts in the field. Fed.R.Evid. 703. A fortiori, such an expert may rely on evidence that is admissible. In United States v. 0.59 Acres of Land, 109 F.3d 1493, 1496 (9th Cir.1997), we held that, when inadmissible evidence used by an expert is admitted to illustrate and explain the expert's opinion, it is necessary for the district court to give a limiting instruction that the evidence is to be considered solely to evaluate the expert opinion and not as substantive evidence. Here, the district court complied with the rule of 0.59 Acres of Land when it admitted the pay/owe sheets with a limiting instruction. Such compliance, though not erroneous, was unnecessary because the pay/owe sheets were admissible on their own merits.

Gonzales also argues that the district court failed to make a specific finding that the probative value of...