U.S. v. Moorehead
| Decision Date | 19 June 1995 |
| Docket Number | No. 94-50171,94-50171 |
| Citation | 57 F.3d 875 |
| Parties | 42 Fed. R. Evid. Serv. 591 UNITED STATES of America, Plaintiff-Appellee, v. James Arthur MOOREHEAD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Ramsey, Jr., Ramsey & Price, Los Angeles, CA, for defendant-appellant.
Brent A. Whittlesey, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before: MCKAY, * REINHARDT, and FERNANDEZ, Circuit Judges.
Mr. James Moorehead appeals his conviction under 18 U.S.C. Sec. 922(g), possession of a firearm by a felon. He makes four claims of error: evidence obtained in violation of the Fourth Amendment was submitted at trial; evidence of bad character was presented to the jury in violation of Federal Rule of Evidence 404(b); the district court wrongfully cross-examined one of the defense witnesses; and, lastly, an erroneous sentence was imposed. The third of these claims has substantial merit and requires that we vacate Mr. Moorehead's conviction and remand for further proceedings. We also decide the first and second of Mr. Moorehead's claims because these issues are certain to arise again if he is retried. We refuse to speculate as to the outcome of this hypothetical second trial and therefore decline to address Mr. Moorehead's sentencing argument at this time.
The facts of this case are straightforward. On February 21, 1993, Mr. Moorehead was stopped for speeding. The officer asked Mr. Moorehead for his license. Mr. Moorehead replied that his license had been suspended or revoked, and produced a California identification card. The standard background check disclosed an outstanding warrant for Mr. Moorehead's arrest. The officer then arrested Mr. Moorehead and secured him in the back seat of the patrol car. A search of the passenger compartment of Mr. Moorehead's car revealed a loaded handgun. It is not disputed that he was at that time a felon and therefore could not legally possess a firearm.
At trial, the government called upon the officer to testify and introduced the handgun into evidence. Anticipating Mr. Moorehead's defense, the government also elicited incriminating testimony from several people with whom Mr. Moorehead had been living. These individuals indicated that they had seen a gun resembling the one discovered by the officer in Mr. Moorehead's possession on several occasions in the months prior to the arrest. Ms. Brandy Hanson testified that she had previously seen Mr. Moorehead pull a gun (which she identified as the gun in evidence) from under the seat of the car. Ms. Arianna Pace testified that, on the day of the arrest, she saw Mr. Moorehead leave the house with a gun and enter his car.
Mr. Moorehead countered the government's case primarily with the testimony of Ms. Deatrice Wright, an acquaintance of Mr. Moorehead's wife. Ms. Wright testified that on February 21 she borrowed Mr. Moorehead's car, drove to a park, bought a handgun resembling the one in evidence, and then hid that gun under the front seat. After she returned the car to Mr. Moorehead, he drove off before she could reclaim her weapon.
Mr. Moorehead also elicited testimony from Mr. Joel Bush, who admitted to being one of Mr. Moorehead's closest friends. On direct examination, Mr. Bush testified that he had not seen Mr. Moorehead in possession of a weapon either on February 21 or on any previous occasion. The cross-examination of Mr. Bush was somewhat more contentious. During the cross-examination, first the government, and then the district court (which assumed control of the questioning), attempted at great length to extract from Mr. Bush an admission that both he and Mr. Moorehead were drug dealers who spent the majority of their days selling narcotics in the park. The district court rebuffed defense counsel's continuing efforts to object and eventually in no uncertain terms forbad defense counsel from objecting at all.
The jury returned a verdict of guilty. This appeal followed.
In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court promulgated a bright-line rule that incident to a lawful arrest a police officer may conduct a contemporaneous search of the passenger compartment of an automobile and the containers therein. Id. at 460-61, 101 S.Ct. at 2864. In United States v. Lorenzo, 867 F.2d 561, 562 (9th Cir.1989) (per curiam), we indicated that the applicability of this exception to the Fourth Amendment did not turn upon a defendant's actual ability to grab items in the passenger compartment. Given a lawful arrest, it is enough that the search be roughly contemporaneous with the arrest. See id. A defendant need not be in the automobile and may be effectively restrained. See United States v. Howard, 758 F.2d 1318, 1319 (9th Cir.1985) (); see also Belton, 453 U.S. at 456, 101 S.Ct. at 2862 ().
Our precedents therefore make plain the rectitude of the district court's refusal to suppress the evidence. There is no question but that the search was contemporaneous with the arrest. United States v. Vasey, 834 F.2d 782 (9th Cir.1987), cited in Appellant's brief, is therefore inapplicable in this case. See Lorenzo, 867 F.2d at 562.
We review the district court's admission of evidence under Rule 404(b) for abuse of discretion. United States v. Corona, 34 F.3d 876, 881 (9th Cir.1994). Rule 404(b) prohibits the use as evidence of uncharged bad acts except to the extent that such actions are probative of, inter alia, "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b).
The district court plainly did not abuse its discretion in allowing Mr. Moorehead's living companions to testify that they had seen him with a gun on prior occasions. Mr. Moorehead's defense hinged upon Ms. Wright's testimony that she had placed the gun under the seat of Mr. Moorehead's car. The testimony elicited from Mr. Moorehead's housemates substantially rebutted Ms. Wright's statements and was thus germane to issues of knowledge and control. In fact, insofar as the testimony suggested that Mr. Moorehead had possessed this gun for a period of several weeks, it was not character evidence at all but rather was introduced as direct evidence of the crimes charged. Its admission did not, therefore, constitute an abuse of the district court's discretion.
Mr. Moorehead does not dispute the broad authority of the district court to examine witnesses. See Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 709 (9th Cir.1989). Rather, Mr. Moorehead contends that the district court's questioning of Mr. Bush elicited inadmissible testimony. We review the district court's admission...
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