959 F.2d 242 (9th Cir. 1992), 91-30053, U.S. v. Johnson

Docket Nº:91-30053.
Citation:959 F.2d 242
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Paul JOHNSON, Defendant-Appellant.
Case Date:April 06, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 242

959 F.2d 242 (9th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Paul JOHNSON, Defendant-Appellant.

No. 91-30053.

United States Court of Appeals, Ninth Circuit

April 6, 1992

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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Decided April 9, 1992.

Appeal from the United States District Court for the District of Oregon; No. CR-90-213-PA, Owen M. Panner, District Judge, Presiding.

D.Or.

VACATED AND REMANDED.

Before JAMES R. BROWNING, EUGENE A. WRIGHT and FERNANDEZ, Circuit Judges.

MEMORANDUM [**]

John Paul Johnson appeals his conviction for possessing a firearm in violation of 18 U.S.C. § 922(g)(1) (ex-felon in possession of a firearm). Johnson argues the district court erred in denying his motion to suppress evidence obtained in searches on September 13, 1989 and August 9, 1990.

I

We need not decide whether the September 13, 1989 search of the duplex was conducted in violation of the Fourth Amendment. The evidence seized in the 1989 search was relevant only to Counts II and III of the indictment, gun-possession charges on which the jury acquitted Johnson. 1 Count IV of the indictment, the one count on which Johnson was convicted, was based solely on possession of a handgun seized during the 1990 search of Johnson's residence.

Johnson does not argue on appeal that admission of the evidence seized in the 1989 search was prejudicial to his defense on Count IV. Johnson moved for a new trial on the ground that joinder of Counts II and III had prejudiced his defense on Count IV. The district court denied the motion, stating there was no such prejudice, and Johnson has not appealed the denial.

We reject Johnson's argument that the legality of the 1989 search is relevant to the legality of the 1990 search of Johnson's residence incident to his arrest. An indictment is not invalid because the grand jury that issued the indictment considered evidence obtained in violation of the Fourth Amendment. See United States v. Calandra, 414 U.S. 338 (1974) (exclusionary rule does not apply to grand jury proceedings). Since the indictment was valid, and the arrest warrant was based on the indictment, the arrest warrant was valid.

II

Johnson argues...

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