5 F.3d 540 (9th Cir. 1993), 92-10716, U.S. v. Anderson

• Date: 14 September 1993
• Docket Number: 92-10716.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John David ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 540

5 F.3d 540 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

John David ANDERSON, Defendant-Appellant.

No. 92-10716.

United States Court of Appeals, Ninth Circuit

September 14, 1993

Submitted September 3, 1993. ^[*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of Nevada, No. CR-92-00034-LDG; Lloyd D. George, District Judge, Presiding.

D.Nev.

AFFIRMED.

Before: REAVLEY, ^[**] PREGERSON, and FERNANDEZ, Circuit Judges.

MEMORANDUM ^[***]

John David Anderson appeals his jury conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We affirm.

1. Admission of Drug Evidence

   Anderson argues that evidence of the drugs found on his person and of the drugs found in the apartment should have been excluded under Rule 404(b) of the Federal Rules of Evidence. However, "[w]e have repeatedly rejected such arguments. The prosecution is not restricted to proving in a vacuum the offense of possession of a firearm." United States v. Daly, 974 F.2d 1215, 1217 (9th Cir.1992). Here, the evidence of the goings on in the apartment, including the drugs found there, and the evidence that drugs were found on Anderson himself, set the stage and placed his actions in context. Also, the evidence tended to rebut Anderson's self-defense and duress claims. It was not inappropriate for the jury to hear about the circumstances and background of the conduct at issue. Id.; see also United States v. Butcher, 926 F.2d 811, 815-16 (9th Cir.), cert. denied, 500 U.S. 959, 111 S.Ct. 2273, 114 L.Ed.2d 724 (1991); United States v. Dunn, 946 F.2d 615, 617-18 (9th Cir.),cert. denied, 502 U.S. 950, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991).

   Anderson's claim that the district court failed to balance the evidence's probative value against its prejudicial effect is meritless. Our review of the record reveals that the district court properly balanced the evidence. See Daly, 974 F.2d at 1217. Indeed, the fact that the apartment contained potentially violent drug dealers was important to his attempted defense. Moreover, there is no doubt that he was in possession of a firearm. It is hard to see how the drug evidence could be viewed as unfairly prejudicial.

2. Admission of the Officer's Statement About the Telephone Call

   Anderson contends that officer Clark's testimony that he heard officer Faux say that a telephone caller "said that someone was bringing over some narcotics" was prejudicial hearsay. Statements do not qualify as hearsay when they "are not offered for the truth of the matter asserted, but were admitted to establish that the statement was made or to demonstrate the effect the statement had on the hearer." United States v. Kirk, 844 F.2d 660, 663 (9th Cir.), cert. denied, 488 U.S. 890, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988). Nor are statements hearsay if they "were not offered for the truth of the matter asserted but as necessary background information." United States v....