U.S. v. Prewitt, 75-2434

Decision Date13 April 1976
Docket NumberNo. 75-2434,75-2434
Citation534 F.2d 200
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robin Lin PREWITT, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before BROWNING and DUNIWAY, Circuit Judges, and CHRISTENSEN, * District Judge.

DUNIWAY, Circuit Judge:

Prewitt appeals from his conviction on five counts charging possession of illegally made and unregistered firearms in violation of 26 U.S.C. §§ 5861(c) and (d). He argues that (1) he was induced not to testify in his own behalf because the trial court improperly ruled that it would admit evidence of his 1963 auto theft conviction for impeachment purposes, and (2) the firearms were seized in a search that violated the Fourth Amendment because one of the two affidavits upon which the search warrant was based contained intentional and material misstatements, and material facts were intentionally omitted from it. We affirm.

I. Evidence of Prior Conviction.

Before trial, Prewitt moved to have all references to his numerous prior convictions excluded at the trial. The court ruled that if Prewitt should take the stand, it would allow proof of Prewitt's 1963 conviction for auto theft for impeachment purposes. Prewitt claims that this ruling deterred him from testifying.

This claim has no merit. A trial court has wide discretion in deciding whether to exclude evidence of prior convictions as more prejudicial than probative of lack of credibility. E. g., United States v. Hatcher, 9 Cir., 1974, 496 F.2d 529. That discretion was not abused in this case.

II. Validity of the Search Warrant.

After an evidentiary hearing, the trial court denied a motion to suppress the guns found in a search of Prewitt's home conducted under a search warrant. Prewitt's only arguable claim is that an affidavit used to obtain the warrant contains misrepresentations.

A. The Facts.

On February 5, 1975, a search warrant was issued authorizing a search of the premises at 768-A Calderon in Mountain View, California. The warrant was based upon separate affidavits made by agents Pierce and Royster of the Bureau of Alcohol, Tobacco, and Firearms. That same evening the warrant was executed, and the agents found and seized two sawed-off shotguns and an M-2 machine gun, which are the weapons that are the basis of the indictment.

The evidence at the suppression hearing showed that there were four errors in the affidavits submitted by Agent Pierce. The first is that although the affidavit correctly stated that the informant had told Pierce that five days before the search he had seen weapons in a car driven by Prewitt, in fact the informant had not seen such weapons. Pierce, however, did not know that. The second is that, while the affidavit correctly stated that the informant told Pierce that Prewitt kept his guns in his home in Mountain View, it failed to state that the informant also told Pierce that the guns that he saw in the car were being moved to someplace in San Mateo. The third is that the affidavit states that Pierce had checked the registration of the car that the informant had seen Prewitt driving and that it was registered to Robin Lin Prewitt, but that the affidavit failed to state that in fact it was registered to Sky Leaf Prewitt and that Pierce knew that Prewitt was also known as "Sky." The fourth is that the affidavit stated that Pierce had verified from postal records that Robin Lin Prewitt lived at 768-A Calderon when in fact Pierce's evidence to that effect was a two-month old statement by the postal carrier that two men named Prewitt, one of them matching the defendant's description, had lived there, and information that one of them had moved away following which a check of postal records showed that the Prewitt who moved away was not the defendant. Based upon these inaccuracies in the Pierce affidavit, Prewitt seeks to have the warrant declared invalid and the evidence seized under it suppressed.

The Pierce affidavit did not purport to be sufficient to support a warrant to search Prewitt's home. In the last paragraph, it stated...

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7 cases
  • U.S. v. Calhoun
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 24 Septiembre 1976
    ...for two reasons: they were neither material to a determination of probable cause nor were they intentional. United States v. Prewitt, 534 F.2d 200, 202 (9th Cir. 1976). of persons who had been arrested and charged with possession of heroin that Vernard Harris had supplied them with drugs; t......
  • U.S. v. Young Buffalo
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 11 Enero 1979
    ...looked like the picture of appellant, were identifying the robber as Indian.On this point, the case is similar to United States v. Prewitt, 534 F.2d 200 (9th Cir. 1976), in which the affiant officer stated that he had checked the registration of a car being used to transport unregistered fi......
  • U.S. v. Walker
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 13 Enero 1978
    ...not material and did not vitiate the affidavit. See United States v. Calhoun, 542 F.2d 1094, 1099 (9th Cir. 1976); United States v. Prewitt, 534 F.2d 200, 202 (9th Cir. 1976). Both the search and the resulting seizure were lawful, and suppression of the evidence was not required by the four......
  • State v. Dixon, 2
    • United States
    • Arizona Court of Appeals
    • 30 Julio 1980
    ...of prior convictions because its prejudicial effect is greater than its probativeness on lack of credibility. United States v. Prewitt, 534 F.2d 200 (9th Cir. 1976); United States v. Oaxaca, 569 F.2d 518 (9th Cir. 1978). The exercise of this discretion should not be disturbed absent a clear......
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