U.S. v. Glenn, 80-1619

• Decision Date: 01 February 1982
• Docket Number: No. 80-1619,80-1619
• Citation: 667 F.2d 1269
• Parties: 9 Fed. R. Evid. Serv. 1432, 9 Fed. R. Evid. Serv. 1649 UNITED STATES of America, Plaintiff-Appellee, v. Gary Wayne GLENN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1269

667 F.2d 1269

9 Fed. R. Evid. Serv. 1432, 9 Fed. R. Evid.

Serv. 1649

UNITED STATES of America, Plaintiff-Appellee, v. Gary Wayne GLENN, Defendant-Appellant.

No. 80-1619.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1981.

Decided Feb. 1, 1982.

Edward P. Moffat, Asst. Federal Defender, Fresno, Cal., for defendant-appellant.

Phil Cronin, Asst. U. S. Atty., Fresno, Cal., for plaintiff-appellee.

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

Before ADAMS, ^* KENNEDY and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Appellant Gary Wayne Glenn was convicted of possession of marijuana with intent to sell, possession of phencyclidine, and driving under the influence of drugs. He appeals, claiming that (1) some of the marijuana found in his car was the product of an illegal search, and should have been suppressed; (2) the evidence was insufficient to prove his intent to sell the marijuana; (3) evidence of his two prior convictions should not have been admitted; and (4) his sentence under the Federal Youth Corrections Act was impermissibly long. We remand for resentencing on the possession of phencyclidine and driving under the influence counts.

I LEGALITY OF THE SEARCH

On June 6, 1980, Glenn was stopped by Ranger Matthew Ducasse while driving through Yosemite National Park. His driving was erratic, and his behavior after being stopped suggested that he might be under the influence of drugs.

Ducasse asked Glenn to get out of his car. He then spotted a glass jar containing hand-rolled cigarettes on the floor of the car. Glenn concedes that the cigarettes were in plain view. The cigarettes proved to contain phencyclidine (PCP), a controlled substance. High levels of PCP were found in Glenn's blood and urine.

Ducasse testified that when he removed the PCP cigarettes from the car, he saw a jacket on the front seat with a plastic bag containing a leafy substance protruding from the pocket. He also testified that he saw a grey plastic tool box under the jacket, with another plastic bag containing a leafy substance protruding from it. Ducasse then seized the tool box and opened it. It contained sixteen small plastic bags of marijuana, a box of plastic sandwich bags, a 100-gram scale, a package of cigarette papers, and a map of Yosemite with several lists of numbers written on the back. Several additional bags of marijuana were found in the jacket.

Glenn moved to suppress the contents of the tool box and the jacket, arguing that they were the product of an illegal search. He testified that the tool box was not on the front seat of the car, but was instead on the floor covered by a blanket. Glenn also testified that there was nothing protruding from the box. The district court denied Glenn's motion to suppress. The court explicitly adopted Ducasse's version of the facts, and found that the search was authorized under the "plain view" exception to the fourth amendment's warrant requirement. United States v. Finnegan, 568 F.2d 637, 640 (9th Cir. 1977); see Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 2037-42, 29 L.Ed.2d 564 (1971).

Glenn concedes that if Ducasse's version of the facts is accepted, the "plain view" doctrine would justify the search of the tool box and the seizure of the marijuana. Glenn's only argument is that the district court erred in choosing to believe Ducasse's story instead of Glenn's. We cannot agree. The court made a finding of fact with respect to Ducasse's and Glenn's credibility. Such a finding of fact will not be disturbed unless clearly erroneous. United States v. Vargas, 643 F.2d 296, 297 (5th Cir. 1981); see United States v. Wysong, 528 F.2d 345, 349 (9th Cir. 1976). We see no reason to disturb the court's finding here. Ducasse's story was at least as credible as Glenn's.

II SUFFICIENCY OF THE EVIDENCE

The jury convicted Glenn of possession of marijuana with intent to sell, in violation of 21 U.S.C. § 841(a)(1) (1976); possession of PCP, in violation of 21 U.S.C. § 844(a) The evidence introduced at trial showed that Glenn possessed approximately 185 grams (between five and six ounces) of marijuana. An expert witness testified that this was considerably more than a person would ordinarily possess for personal use. The marijuana was divided into small packages, as if for sale. Glenn was carrying a 100-gram scale, and a box of plastic sandwich bags suitable for packaging marijuana. In addition, the evidence showed that Glenn had several hundred dollars on his person when he was arrested, although he was unemployed; that he was arrested on payday for Yosemite employees; and that he had written on a Yosemite map several columns of figures which could have been calculations of profit.

(1976); and driving under the influence of drugs, in violation of 36 C.F.R. § 4.6 (1980). Glenn does not challenge the sufficiency of the evidence on the latter two counts. However, he argues that the evidence on the first count was insufficient to prove that he intended to sell the marijuana found in his possession.

Glenn testified on his own behalf. He claimed that he bought the marijuana for his personal use, and that he had bought a large amount because the price was good. He claimed that the scale was to ensure that he had not been cheated, and that the cash came from odd jobs and a tax refund.

In reviewing the sufficiency of the evidence to support a criminal conviction, we inquire whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We view the evidence in the light most favorable to the Government. Id.; Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Applying this standard, we conclude that a rational trier of fact could have chosen to disbelieve Glenn's testimony. From the Government's evidence, a rational trier of fact could have inferred that Glenn intended to sell the marijuana in his possession.

III ADMISSIBILITY OF THE PRIOR CONVICTIONS

At trial, the court allowed Glenn to be impeached with evidence of a 1975 burglary conviction and a 1977 grand theft conviction. The admission of prior convictions for impeachment purposes is governed by Fed.R.Evid. 609(a), which provides that:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

In admitting Glenn's prior convictions, the court below refused to weigh the convictions' probative value against their prejudicial effect, as required under rule 609(a)(1). Instead, the court ruled that the convictions involved "dishonesty or false statement," and were thus admissible under rule 609(a) (2). Convictions involving "dishonesty or false statement" within the meaning of rule 609(a)(2) are automatically admissible; the court need not conduct a balancing test. See United States v. Field, 625 F.2d 862, 871 (9th Cir. 1980); United States v. Dixon, 547 F.2d 1079, 1083 (9th Cir. 1976).

In United States v. Ortega, 561 F.2d 803 (9th Cir. 1977), we addressed the question of which crimes involve "dishonesty or false statement" within the meaning of rule 609(a)(2). We reviewed rule 609's legislative history, and noted that the conference committee report on the rule limited the meaning of "dishonesty or false statement" to

crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen 561 F.2d at 806 (quoting H.R.Rep.No.93-1597, reprinted in (1974) U.S.Code Cong. & Ad.News 7051, 7098, 7103). We concluded that rule 609(a)(2) applied only to "those crimes that involve some element of misrepresentation or other indicium of a propensity to lie" and not to "those crimes which, bad though they are, do not carry with them a tinge of falsification." 561 F.2d at 806. Accord, e.g., United States v. Field, 625 F.2d 862, 871 (9th Cir. 1980); United States v. Cook, 608 F.2d 1175, 1185 n.9 (9th Cir. 1979) (en banc); United States v. Donoho, 575 F.2d 718, 721 (9th Cir. 1978); United States v. Dixon, 547 F.2d 1079, 1083 n.3 (9th Cir. 1976); United States v. Seamster, 568 F.2d 188, 190-91 (10th Cir. 1978); United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977); United States v. Smith, 551 F.2d 348, 360-64 (D.C.Cir.1976); Government of the Virgin Islands v. Toto, 529 F.2d 278, 281-82 (3d Cir. 1976).

falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing upon the accused's propensity to testify truthfully.

The conviction involved in Ortega was for petty shoplifting, and we held that it should not have been admitted under rule 609(a)(2). Although Glenn's prior convictions were for more serious crimes-burglary and grand theft-we think the Ortega rule applies to them as well. Generally, crimes of violence, theft crimes, and crimes of stealth do not involve "dishonesty or false statement" within the meaning of rule 609(a)(2). Although such crimes may indicate a lack of respect for the persons or property of others, see Ortega, 561 F.2d at 806, they do not "bear directly on the likelihood that the defendant will testify truthfully." United States v. Hayes, 553 F.2d at 827 (emphasis in original). See United States v. Preston, 608 F.2d 626, 638 n.15 (5th Cir. 1979); United States v. Smith, 551 F.2d at 362-63 & n.26. ¹

A conviction for burglary or theft may nevertheless be...