U.S. v. Clawson

Decision Date05 November 1987
Docket NumberNo. 86-3150,86-3150
Citation831 F.2d 909
Parties24 Fed. R. Evid. Serv. 384 UNITED STATES of America, Plaintiff-Appellee, v. Arthur Minkoff CLAWSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Frank Noonan, Portland, Or., for plaintiff-appellee.

Steven T. Wax, Portland, Or., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before T. GOODWIN and FERGUSON, Circuit Judges, and STEPHENS, * District Judge.

GOODWIN, Circuit Judge:

Arthur Minkoff Clawson was convicted of one count of being a felon in possession of a firearm, in violation of 18 U.S.C.App. Sec. 1202(a). 1 At the government's request, the court imposed an enhanced penalty under Sec. 1202(a)'s Armed Career Criminal provision. On appeal Clawson challenges: (1) the admissibility of evidence, (2) the sufficiency of proof of the interstate transportation element of the firearm offense, (3) the lawfulness of the stop of the car in which Clawson was a passenger, (4) the constitutionality of one of the prior convictions used to enhance his sentence, and (5) the constitutionality of the Armed Career Criminal Act.

On November 10, 1985, two Portland police officers, acting on an informant's tip regarding a check forgery operation, staked out the Chumaree Motel in Portland. In the motel parking lot, detectives Larry Kochever and Carolyn Wooden-Johnson observed two cars that matched the description given by the informant of the suspects' vehicles. When the officers suspected that the forgery suspects were attempting to leave the parking lot in one of the cars, Officer Wooden-Johnson pulled the unmarked police car up behind them. Clawson then got out of the car.

According to Officer Kochever, he identified himself as a police officer and told Clawson that he would like to talk to him. In response, Kochever said, Clawson began running and, after taking a few steps, reached for the small of his back as if to draw a gun from the waistband on the back of his pants. Kochever then drew his gun and ordered Clawson to freeze. Clawson stopped.

Clawson testified that he never tried to run and that Kochever pointed his gun at him without provocation, saying "Freeze or I'll shoot." He said that he was merely trying to put on a jacket and made no menacing moves.

In the meantime, Officer Wooden-Johnson testified, she had told the car's driver, Penn, to stop. Penn refused, pulling the car away suddenly then stopping a short distance away. This happened a second time, with Penn telling the officer that she had a gun. When Wooden-Johnson approached the car a third time, she saw Penn reach for what appeared to be a gun. Wooden-Johnson shot and wounded Penn.

During the altercation between Penn and Wooden-Johnson, Officer Kochever made Clawson lie on the ground and handcuffed his hands behind his back. Officer Kochever testified that Clawson then rolled on his side and made a movement as if he were drawing something out of his waistband. The officer then grabbed Clawson by his jacket and pushed him back to the ground. Kochever testified that he heard something hit the ground, then saw the gun on the ground behind Clawson. Clawson testified that he was wearing Penn's jacket by mistake and had been unaware that the gun was in the pocket.

Evidentiary Issues

Before trial, Clawson signed an affidavit of ownership in support of a motion in state court for return of property, including a pistol the police had seized. The government relied on Clawson's state-court affidavit in this trial to prove that Clawson claimed to own the gun. Clawson argues that the district court erred in permitting the government to introduce the evidence, citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

Simmons held that when a defendant testifies in support of a motion to suppress evidence on fourth amendment grounds, his testimony may not be admitted against him at trial to prove that he possessed the evidence. Simmons rested upon the undesirability of forcing the defendant to choose between his fifth amendment right against self-incrimination and his fourth amendment right to object to government seizure.

However, Simmons does not extend to all situations in which the defendant makes pre-trial motions indicating his ownership of seized evidence. See e.g., United States v. Flores, 679 F.2d 173, 177-78 (9th Cir.1982), cert. denied, 459 U.S. 1148, 103 S.Ct. 791, 74 L.Ed.2d 996 (1983). The Flores court rejected the defendant's argument that Simmons applied to voluntary admissions. Id. Clawson voluntarily made his affidavit in support of a motion for return of things seized. The motion was a civil motion in state court. He was not forced to choose between constitutional rights. The trial judge correctly ruled that Flores--not Simmons--applies.

Clawson also argues that his affidavit should have been excluded under Fed.R.Evid. 403 because it injected collateral issues that were confusing and prejudicial. The affidavit showed on its face that he was a convict in state custody on unrelated charges. The court offered to mask the irrelevant information, but Clawson objected to the document being received in any form. The document was relevant and was made voluntarily. There was no error in receiving it.

Clawson also argues that the district court erred in admitting evidence regarding Penn's altercation with Officer Wooden-Johnson. He contends that the testimony had slight relevance, and that it was unfairly prejudicial. There was no error. The evidence had more than slight probative value. This is a situation in which parties had a hand in creating their own evidentiary problem. Clawson's version of events differed in crucial respects from Officer Kochever's. Credibility was an issue. The testimony regarding Penn's confrontation with Wooden-Johnson helped complete the picture of events that led to the discovery of Clawson's gun, and thereby gave the jury a basis on which to resolve an important conflict in the testimony.

In determining whether the prejudicial effect of the evidence so far outweighs its probative value that the evidence should be excluded, trial courts are given wide discretion. United States v. Federico, 658 F.2d 1337, 1342 (9th Cir.1981). Given the importance of presenting the jury with an accurate version of Clawson's actions, the trial court did not abuse its discretion in admitting evidence concerning Penn's action.

Interstate Transportation Element

Clawson attacks the trial court's ruling that the government proved that the unlawfully possessed gun taken from him moved in interstate commerce, as required by Sec. 1202(a). Clawson claims that the testimony of Alcohol, Tobacco and Firearms Agent Tommy Whitman concerning the manufacture of the gun and the likelihood that it moved in interstate commerce lacked foundation and was insufficient as a matter of law. The trial court correctly rejected Clawson's motions to strike Whitman's testimony and for a judgment of acquittal based on the insufficiency of the testimony.

Clawson's attack upon Whitman's testimony that the gun was a Mauser semi-automatic pistol manufactured in Germany centers upon Whitman's comparison of the gun with pictures in catalogs, firearms manuals, and reference publications. We reject Clawson's suggestion that Whitman's testimony lacked adequate foundation merely because he performed no tests upon the gun. It was not error for the trial court to conclude that Whitman's reliance upon standard reference works provided adequate foundation for his testimony.

We also reject Clawson's argument that the government's evidence concerning the interstate commerce element of the offense was insufficient as a matter of law. The government is required to prove beyond a reasonable doubt the interstate transportation element of the offense. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (holding that each element of a crime must be proved beyond a reasonable doubt). The government fulfilled this burden.

Whitman concluded that, given the gun's German manufacture, it must have traveled in interstate commerce. See United States v. Gann, 732 F.2d 714, 724 (9th Cir.), cert. denied, 469 U.S. 1034, 105 S.Ct. 505, 83 L.Ed.2d 397 (1984) (holding proper the admission into evidence of expert testimony concerning the location of a weapon's manufacturing plant to demonstrate that the firearm had previously traveled in interstate commerce). The government has no duty to prove that counterfeit Mauser pistols are not being manufactured in Oregon. The evidence was sufficient to support the factual finding that the gun moved in interstate commerce.

Legality of the Stop

Clawson made an unsuccessful pre-trial motion to suppress the fruits of the stop of Penn's car. The trial court found that the city police had an adequate basis for stopping the car and that the degree of force used did not exceed the scope of an investigative stop. 644 F.Supp. 187 (D.Or.1986). We agree. This is a legal issue reviewable de novo. United States v. Maybusher, 735 F.2d 366, 371 n. 1 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985).

Clawson contends that even if the stop was permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Oregon's more restrictive rules regarding temporary detention invalidate the stop. However, the district court's ruling was correct whether state or federal law is applied.

Oregon law, in accord with federal law, allows a law enforcement officer who reasonably suspects that a person has committed a crime to stop and question that person about the crime. Or.Rev.Stat. Sec. 131.615 (1984). Oregon case law establishes that this codification of an officer's authority to stop a person is based on the rationale justifying "stop and frisk" in Terry, 392 U.S. at 20-27, 88 S.Ct. at 1879-83. See State v. Valdez...

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