U.S. v. Dunn

• Decision Date: 01 October 1991
• Docket Number: No. 89-50185,89-50185
• Citation: 946 F.2d 615
• Parties: 34 Fed. R. Evid. Serv. 52 UNITED STATES of America, Plaintiff-Appellee, v. Jody James DUNN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 615

946 F.2d 615

34 Fed. R. Evid. Serv. 52

UNITED STATES of America, Plaintiff-Appellee, v. Jody James DUNN, Defendant-Appellant.

No. 89-50185.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1990.

Decided June 10, 1991.

As Amended on Grant of Motion for Modification Oct. 1, 1991.

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

Joel Levine, Los Angeles, Cal., for defendant-appellant.

David H. Tennant, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before HUG, CANBY and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Jody James Dunn timely appeals his conviction and sentence for possession of a weapon by a prior felon (18 U.S.C. § 922(g)(1)) (Count 1) and for possession of an unregistered firearm (26 U.S.C. § 5861(d)) (Count 2). We affirm the conviction on Counts 1 and 2 and the sentence on Count 1. We remand for resentencing on Count 2.

BACKGROUND

In the late afternoon of May 17, 1988, Jody James Dunn, his girlfriend Orlena Gasto, and several companions scuffled with a handyman-security guard, Willie Thomas, at a Los Angeles laundromat after being told to stop dealing cocaine and to leave the premises. Mr. Dunn and his companions were gone when the police arrived to hear Mr. Thomas' story.

Mr. Dunn and one or two companions returned to the laundromat sometime after 10 p.m. that evening. Mr. Dunn pointed a sawed-off shotgun at Mr. Thomas' head and threatened to kill him. Then, someone wanting to buy cocaine from Mr. Dunn distracted him and soon after he drove away.

Within five or ten minutes, the police, responding to Mr. Thomas' phone call, found Mr. Dunn sitting in a car matching Mr. Thomas' description two blocks from the laundromat. They arrested Mr. Dunn and confiscated the sawed-off shotgun which lay on the car floor under the steering column. They also confiscated some cocaine found on the car floor on the passenger side.

A jury found Mr. Dunn guilty of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) (Count 1) and of possession of an unregistered firearm (26 U.S.C. § 5861(d)) (Count 2). The district court enhanced Mr. Dunn's sentence for Count 1 under 18 U.S.C. § 924(e) because it found he previously had been convicted of three violent felonies. The district court sentenced Mr. Dunn for Count 2 as a "career offender" under § 4B1.1 of the Sentencing Guidelines, finding that possession of an unregistered firearm is a "crime of violence." Mr. Dunn received 180 months (15 years) for Count 1 and 150 months (12 1/2 years) for Count 2, to run concurrently.

DISCUSSION

I. TRIAL ISSUES

The district court has broad discretion in admitting or excluding evidence. Its rulings are reviewed only for an abuse of discretion. United States v. Kearney, 560 F.2d 1358, 1369 (9th Cir.), cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977). Of course, irrelevant evidence cannot be admitted, Fed.R.Evid. 402, or evidence for which the prejudicial value outweighs the probative value, Fed.R.Evid. 403.

A. Evidence of Drug Transactions

Mr. Dunn argues that Mr. Thomas' testimony regarding cocaine dealing at the laundromat was irrelevant and prejudicial. He also argues that the arresting officer's testimony regarding saleable amounts of cocaine and proceeds from sales discovered with Mr. Dunn at the time of his arrest was also irrelevant and prejudicial.

In United States v. Bradshaw, 690 F.2d 704, 708-09 (9th Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983), this court upheld the district court's decision to admit evidence of the defendant's sexual activity with the nine-year old boy he was accused of kidnapping, although the defendant was not indicted for that activity. Admission of evidence that the defendant gave drugs to the boy was also affirmed. Motive is not an element of the crime of kidnapping. Nevertheless, the court approved the admission of the evidence to show motive because "[m]otive is evidence of the commission of any crime" and because it completes the kidnapping scenario for the jury. Id. at 708; see also United States v. Moore, 735 F.2d 289, 292 (8th Cir.1984) (court admitted evidence that defendant was arrested during a drug raid in trial for felon in possession of a firearm saying, "A Under Bradshaw, the evidence regarding Mr. Dunn's cocaine dealing in this case was relevant to establish a motive for Mr. Dunn's anger in the laundromat and for his return brandishing a firearm. The evidence also corroborated Mr. Thomas' story that Mr. Dunn possessed the sawed-off shotgun found in the car he was driving upon his arrest--an essential element of the crimes charged. Without the evidence of drug dealing, the jury would have lacked knowledge of an integral part of the circumstances surrounding the charged crimes. In a different context, the evidence might be unduly prejudicial despite its relevance, but in this case, in which the other evidence regarding gun possession was strong, the evidence was not unduly prejudicial. The district court did not abuse its discretion in admitting the evidence.

jury is entitled to know the circumstances and background of a criminal charge.")

B. Exclusion of Testimony About Dropped Assault Charges

Orlena Gasto, Mr. Dunn's girlfriend who accompanied him to the laundromat in both the afternoon and in the late evening, testified that she saw no gun at the laundromat or in the car. Her testimony directly contradicted Mr. Thomas' story that Mr. Dunn threatened him with a gun in her presence. She also testified that Mr. Thomas attacked her (and Mr. Dunn intervened) during the afternoon fight at the laundromat and not vice versa as Mr. Thomas testified. She sought to improve her credibility by introducing evidence that assault charges brought against her for that fight had been dropped. The district court excluded this evidence because, given the many possible reasons for dropping charges, its corroborative value is uncertain. The court felt that the time necessary to rebut the inference that Ms. Gasto did not assault Mr. Thomas would be wasted time.

Relevant evidence may be excluded if its probative value is substantially outweighed by the potential for wasted time. Fed.R.Evid. 403. Although the evidence may have improved Ms. Gasto's credibility somewhat if the prosecution could not refute the inference, the district court did not abuse its discretion in concluding that, in a trial for possession of a firearm found at Mr. Dunn's feet, the probative value of the evidence of the dropped charge was substantially outweighed by the potential for wasted time.

C. Expert Testimony Regarding the Firearm's Place of Manufacture

The statute under which Mr. Dunn was indicted in Count 1 makes it unlawful for a felon "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g). The Ninth Circuit allows expert testimony regarding the identity of the manufacturer to establish that a gun travelled in interstate commerce before the defendant received it. United States v. Gann, 732 F.2d 714, 724-25 (9th Cir.), cert. denied, 469 U.S. 1034, 105 S.Ct. 505, 83 L.Ed.2d 397 (1984); see also United States v. Robbins, 579 F.2d 1151, 1154 (9th Cir.1978). The appellant misreads Gann as saying that an expert can testify only to establish the manufacturer of the weapon, not the place of manufacture. The case also implicitly holds that, although expert testimony may not be necessary to establish the location of the manufacturer, it is permissible as part of an expert's testimony on the ultimate issue--whether the gun travelled in interstate commerce. 732 F.2d at 724-25.

Under Gann, the district court did not abuse its discretion in allowing an agent from the Bureau of Alcohol, Tobacco, and Firearms to testify that Harrington and Richardson, the gun's manufacturer, was located in Massachusetts before it went out of business in 1985.

D. Probable Cause for Search and Seizure

Mr. Dunn argues that the arresting officers did not have probable cause to search his automobile. Because of an automobile's mobility, police officers may conduct warrantless searches of automobiles if The Supreme Court described the probable cause test as follows:

                they would have probable cause for a warrant to issue.  California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 2069-70, 85 L.Ed.2d 406 (1985).   Determinations of probable cause are mixed questions of law and fact reviewed de novo by this court.  United States v. Smith, 790 F.2d 789, 791 (9th Cir.1986)
                

[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U.S. 132, 162, [45 S.Ct. 280, 288, 69 L.Ed. 543] (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.

Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (noticing balloon tied to conceal drugs, vials, loose white powder in car stopped at routine driver's license checkpoint gave officer probable cause to search); cf. Carney, 471 U.S. at 394-95, 105 S.Ct. at 2070-71 (officer had probable cause to search motor home when youth exiting the home said he had received marijuana inside); Smith, 790 F.2d at 791 (codefendants' statements that jeep contained counterfeiting materials supplied probable cause); United States v. Bagley, 772 F.2d 482, 490-91 (9th Cir.1985) (eyewitness identifies car as getaway vehicle, providing probable cause for seizure), cert. denied, 475 U.S. 1023, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986).

The arresting officers in this case had responded to Mr. Thomas' calls twice in one day and had witnessed the cuts and bruises on Mr. Thomas from the first encounter. Their observations...