U.S. v. Guthrie

• Decision Date: 25 April 1991
• Docket Number: Nos. 89-10340,90-16036,s. 89-10340
• Citation: 931 F.2d 564
• Parties: 32 Fed. R. Evid. Serv. 971 UNITED STATES of America, Plaintiff-Appellee, v. Blair William GUTHRIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 564

931 F.2d 564

32 Fed. R. Evid. Serv. 971

UNITED STATES of America, Plaintiff-Appellee, v. Blair William GUTHRIE, Defendant-Appellant.

Nos. 89-10340, 90-16036.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 13, 1991.

Decided April 25, 1991.

Scott A. Sugarman and Robert J. Beles, Sugarman & Cannon, Oakland, Cal., for defendant-appellant.

Sandra L. Teters, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before FLETCHER, NORRIS and TROTT, Circuit Judges.

OPINION

TROTT, Circuit Judge:

Blair William Guthrie appeals his conviction for possession of an unregistered silencer claiming the district court erred by: (1) failing sua sponte to give certain jury instructions; (2) restricting the cross-examination of a key government witness; (3) refusing to hold a Franks hearing; and (4) increasing his criminal history score under the United States Sentencing Guidelines based on a vacated state conviction. We have jurisdiction under 28 U.S.C. Sec. 1291 (1988) and 18 U.S.C. Sec. 3742 (1988), and we affirm the conviction and remand for resentencing.

FACTS AND PROCEEDINGS BELOW

Guthrie was charged in a fourteen count indictment with committing various narcotics and firearms offenses. The jury acquitted him of all counts but Count 10, which charged he had possessed an unregistered silencer. See 26 U.S.C. Sec. 5861(d) (1988). The district court sentenced Guthrie under the Sentencing Guidelines.

This appeal arises from the following facts.

Based on information from Guthrie's former wife, Linda, the police suspected he was operating a drug lab at a warehouse in Pittsburg, California. After corroborating some of the details of Linda's story, the police filed an affidavit with a magistrate, who issued a warrant to search the warehouse. It was later discovered that a police officer had instructed Linda to lie to the agent writing the affidavit; the officer had her tell the agent that she had visited the warehouse two months before, when in fact she had not been there in four and one half years. This lie was incorporated into the affidavit by the agent, who was unaware of its falsity.

The raid on the warehouse yielded information that provided probable cause for the issuance of a warrant to search Guthrie's home and a storage locker located in Oakland, California. The search of a workshop in Guthrie's home resulted in the seizure of pieces of metal and rubber, and tools associated with the making of silencers. The search of the storage locker uncovered a cache of drugs, firearms, commercially manufactured silencers, and homemade silencers.

At trial, government experts tied the scraps and tools found in Guthrie's workshop to the homemade silencers discovered in the storage locker. Linda testified that the contents of the locker belonged to Guthrie. The defense cross-examined Linda for two days, eliciting an array of facts diminishing her credibility. However, the district court did not allow the defense to cross-examine Linda about a murder she allegedly had committed.

At sentencing, Guthrie challenged the constitutional validity of a 1973 California narcotics conviction used to increase his criminal history score under the Guidelines. The court held a hearing, determined the conviction was constitutional, and added three points to Guthrie's criminal history score. Guthrie then filed a direct appeal.

Shortly after filing the appeal, Guthrie convinced the California Superior Court to vacate his 1973 conviction. Guthrie then petitioned the district court pursuant to 28 U.S.C. Sec. 2255 (1988), asking to be resentenced based on the state court's vacation of the prior conviction. The district court held it was not bound by the state court's decision and denied the petition. Guthrie appealed the court's denial of his section 2255 petition, and his two appeals have been consolidated.

ANALYSIS

I The Jury Instruction Claims

Guthrie was charged with possessing thirteen unregistered silencers recovered by police from a storage locker. At trial, an expert witness for the government testified that some of these silencers were homemade, and that various metal and rubber scraps and tools seized from Guthrie's workshop indicated he had manufactured them. The government never suggested to the jury that these scraps in themselves could count as silencers, and both sides agree on appeal that they could not so qualify. ¹ Nevertheless, Guthrie advances several elaborate theories designed to show the jury convicted him of the silencer offense based solely on the scrap evidence. The likelihood of this happening could have been reduced, he argues, if the court had instructed the jury that the scrap evidence was legally insufficient to qualify as a silencer.

Guthrie did not ask for this instruction, so the court's failure sua sponte to give it is reviewed for plain error. United States v. Chambers, 918 F.2d 1455, 1458 (9th Cir.1990). " 'A plain error is a highly prejudicial error affecting substantial rights.' " Id. (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979)).

On review of the record, we believe it is unlikely the jury convicted Guthrie because of a mistaken impression that the scraps could constitute a silencer. On the contrary, it is probable that the jury merely considered the scraps as evidence linking him to the completed homemade silencers seized from the storage locker. Guthrie has not demonstrated plain error.

Guthrie also contends the court erroneously denied his proposed instruction that his "mere presence" in the house where the scraps were found was insufficient to establish he possessed them. This instruction was especially important, he says, since his defense was that several other people shared the workshop with him and could have been responsible for the scraps. The court initially denied Guthrie's "mere presence" instruction. During its deliberation on the verdict, the jury sent out a note inquiring about Guthrie's responsibility for the activities that occurred in his home. The court then offered to instruct the jury on the elements of constructive possession. Guthrie objected to this proposal, however, and requested instead that the court reread its earlier instruction that the jury had to find he knowingly possessed the silencers. The court did so.

When the defendant himself proposes the jury instruction he later attacks on appeal, review is denied under the "invited error" doctrine. United States v. Benny, 786 F.2d 1410, 1416 (9th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986); People of the Territory of Guam v. Alvarez, 763 F.2d 1036, 1037 (9th Cir.1985); United States v. Alexander, 695 F.2d 398, 402 (9th Cir.1982), cert. denied, 462 U.S. 1108, 103 S.Ct. 2458, 77 L.Ed.2d 1337 (1983). Here, the district court offered to instruct the jury on what it could infer from Guthrie's use with others of his workshop, effectively granting him a "mere presence" instruction. Guthrie declined the offer, however, and proposed instead that the court simply reread its more general instruction on the element of knowledge. The court complied with Guthrie's request, so he cannot now complain of what he received.

II The Limitation on the Cross-Examination

Linda Guthrie was the government's chief witness. The defense cross-examined her for two days and thoroughly impeached her credibility. At one point toward the end of the cross-examination, the defense asked Linda if she knew a man named Terry Wiseman or a man called "Hippy Bob." She responded that she knew Hippy Bob, but not Wiseman. The defense then inquired: "Isn't it true that, in 1978, that you and Sergay [Linda's former partner], by use of weaponry, killed both of those individuals?" The government objected to this question and the district court held a side-bar conference, after which it decided the defense would not be allowed to explore the issue of the alleged murder. The court stated that it had given counsel great leeway to cross-examine Linda, and that further inquiry into her criminal background was unnecessary.

Guthrie claims this restriction of the cross-examination violated the Sixth Amendment. See e.g., Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). We review the district court's limitation on the extent of the cross-examination for an abuse of discretion. United States v. Feldman, 788 F.2d 544, 554 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). "The trial court does not abuse its discretion as long as the jury receives sufficient information to appraise the biases and motivations of the witness." Id.; accord United States v. Lopez, 885 F.2d 1428, 1438 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 748, 107 L.Ed.2d 765 (1990); United States v. Jenkins, 884 F.2d 433, 436 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 568, 107 L.Ed.2d 562 (1989); United States v. Kennedy, 714 F.2d 968, 973 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984).

Guthrie correctly claims that, the more serious the informant's alleged crime, the greater the informant's incentive is to testify favorably to the government in exchange for a grant of immunity from prosecution. It is conceivable, for example, that an informant confronting a potential murder indictment would testify falsely to secure dismissal of the charge. In that situation, testimony concerning the informant's alleged crime would have great impeachment value.

In the present case, however, Linda did not receive immunity from prosecution (known as "transactional immunity") for any of her prior crimes. She only was granted "use immunity." This form of immunity allowed Linda to testify about her...