U.S. v. Hernandez

• Decision Date: 21 September 1994
• Docket Number: No. 93-50102,93-50102
• Citation: 27 F.3d 1403
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Robert HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1403

27 F.3d 1403

UNITED STATES of America, Plaintiff-Appellee, v. James Robert HERNANDEZ, Defendant-Appellant.

No. 93-50102.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1994.

Decided June 24, 1994.

As Amended Sept. 21, 1994.

David J. Cohen, Cohen, Hubachek & Riggs, San Diego, CA, for defendant-appellant.

Steve Miller, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

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

Before: WIGGINS and T.G. NELSON, Circuit Judges, and EDWARD C. REED, Jr., ^* District Judge.

Opinion by Judge T.G. NELSON.

T.G. NELSON, Circuit Judge:

I.

OVERVIEW

James Robert Hernandez (Hernandez) appeals his conviction under 18 U.S.C. Sec. 922(g)(1) for being a felon in possession of a firearm. He makes several arguments on appeal including that the district court erred by denying his motion to suppress; that it abused its discretion by allowing the jury a transcript of a witness's testimony during deliberation; and that there was insufficient evidence to convict him because his stipulation to a prior felony was not sufficient. ¹ We hold that the district court did not err in denying Hernandez's motion to suppress evidence and that the stipulation to his prior felony conviction was sufficient to fulfill an element of Sec. 922(g)(1). However, we reverse on the grounds that the district court abused its discretion by allowing the jury to have a transcript in the jury room during deliberation without taking adequate precautions to avoid undue emphasis.

II.

FACTS AND PROCEDURAL HISTORY

Hernandez was indicted by a federal grand jury on one count of being a felon in possession of a firearm with an armed career criminal enhancement in violation of 18 U.S.C. Secs. 922(g)(1) ² and 924(e)(1).

On February 23, 1992, police officers Gregory Sadar (Sadar) and Lee Timmerman Prior to trial, Hernandez moved to suppress evidence arguing the police did not have reasonable suspicion to detain him for questioning at the time he was initially approached by Sadar. The district court rejected this argument and denied the motion to suppress.

(Timmerman) were taking a domestic violence suspect into custody outside an apartment building. While escorting the domestic violence suspect, Timmerman observed a man dressed in dark clothing jump over a fence into an alley and run to the apartment building's gate. Suspecting illegal activity, Sadar approached the suspect, announced he was a police officer, and stated that he needed to talk to him. As Sadar approached the suspect, Timmerman saw the suspect reach with his right hand to his waistband in a drawing motion. Sadar testified that as he walked towards the suspect, the suspect looked directly at him and then turned and attempted to climb over the gate. Sadar grabbed the suspect, and a brief struggle ensued. The gate burst open; Sadar fell down; and the suspect began running. Sadar took cover behind a pillar, drew his gun, and saw the suspect draw a gun from his waistband. After he drew the gun, the suspect stopped, looked over his shoulder directly at Sadar, and then threw the gun which bounced off a nearby pickup and landed in the grass. The suspect continued to run, jumped over a fence at the end of the apartment complex, and ran down the street. Timmerman broadcast a description of the suspect, and approximately four or five minutes later, two other police officers apprehended Hernandez hiding behind a cinder block wall. At trial, both Sadar and Timmerman identified Hernandez, the defendant, as the suspect.

Also prior to trial, Hernandez and the Government stipulated that Hernandez had been convicted of a felony prior to February 23, 1992, the date of his arrest. The district court clarified that Hernandez understood evidence regarding a prior felony conviction would not be presented to the jury and that through the stipulation he was giving up his right to have the jury determine he had a prior felony. Hernandez indicated that he desired to stipulate to the felony conviction and understood the element would be taken away from the jury.

After trial, during deliberation, the jury requested by note to hear Sadar's testimony again. The request was made on a Friday after only a short period of deliberation. The court urged the jurors to rely on their collective memories to determine the facts of the case. The jury relayed that its final decision was based on Sadar's testimony and asked the court to reconsider its request. Again, the court urged the jurors to rely on their recollections, and if they could not, then to narrow the request. The jury responded that it specifically wanted to hear Sadar's testimony regarding his encounter with the suspect at the gate and his description of the suspect. The court informed the jury that it would comply with its request, but that it should continue to deliberate.

Following the weekend, on Monday, the court provided the jury with the entire transcript of Sadar's testimony, including both direct and cross-examination. Hernandez vehemently objected to providing the testimony to the jury in any manner. In the alternative, Hernandez requested the transcript be read to the jury in open court; this request was denied. Finally, the court denied his request for any limiting instruction regarding the jury's emphasis of the transcript. After receiving the transcript, the jury deliberated for approximately ninety minutes before finding Hernandez guilty of being a felon in possession of a firearm.

III.

DISCUSSION

A. Motion to Suppress

The district court denied Hernandez's motion to suppress evidence holding the police had reasonable suspicion to approach and detain Hernandez for questioning. It did not specifically find that Hernandez was "seized" by Sadar before he fled. However, the district court's inquiry into whether the stop of Hernandez argues he was "seized" within the meaning of the Fourth Amendment because he briefly submitted to Sadar's show of authority before fleeing. Further, he argues the seizure was illegal because the police officers did not have reasonable suspicion to detain him for questioning. Consequently, he argues the gun which he discarded during his flight cannot be considered abandoned, but instead it is fruit of an unlawful seizure. We reject these arguments and hold that Hernandez was never actually seized by Sadar.

Hernandez was based upon reasonable suspicion presumes that a seizure occurred.

We review "[t]he district court's finding of historical facts ... under the clearly erroneous standard, but the ultimate determination of whether those facts amount to an unlawful seizure is a matter of law that we review de novo." United States v. Johnson, 903 F.2d 1219, 1221 (9th Cir.), cert. denied, 498 U.S. 985, 111 S.Ct. 520, 112 L.Ed.2d 531 (1990). A seizure occurs either when a suspect is physically forced to stop or when the suspect submits to the officer's show of authority. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991). "[A] seizure does not occur if, in response to a show of authority, the subject does not yield; in that event, the seizure occurs only when the police physically subdue the subject." United States v. Santamaria-Hernandez, 968 F.2d 980, 983 (9th Cir.1992). Only when an encounter is classified as a seizure must we determine whether there was reasonable suspicion. See United States v. Wilson, 953 F.2d 116, 124 (4th Cir.1991); cf. Morgan v. Woessner, 997 F.2d 1244, 1254 (9th Cir.1993), cert. dismissed, --- U.S. ----, 114 S.Ct. 671, 126 L.Ed.2d 640 (1994).

For the proposition that a defendant can be seized despite subsequent flight, Hernandez relies principally on Wilson, 953 F.2d 116, and United States v. Holloway, 962 F.2d 451 (5th Cir.1992). In Wilson, the court found the defendant had been seized within the meaning of the Fourth Amendment after he repeatedly denied consent for police officers to search his coat. The officers persisted in following the defendant through the airport requesting consent to search. The court held:

The officer's prolonged and persistent questioning after the suspect had conveyed an unequivocal unwillingness to engage in further conversation with the officer is the type of conduct that is proscribed by the Fourth Amendment. We conclude, therefore, that [the defendant] was "seized" sometime soon after he denied the agent's request to search the coat.

Wilson, 953 F.2d at 123 (footnote omitted). In Holloway, officers blocked the fleeing defendant's car by pulling out in front of him in their patrol car while another unit simultaneously moved in behind him. 962 F.2d at 453-54. The court found the defendant had been seized because "blocking [the defendant's] path of direction constituted ... an application of physical force." Id. at 456.

Hernandez also cites to United States v. Morgan, 936 F.2d 1561 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992), to support his assertion that a defendant's momentary hesitation constitutes submission to authority thereby resulting in seizure. In Morgan, the seizing officer activated his overhead lights and followed the car carrying the defendant. Id. at 1565. Eventually, the car pulled into a driveway, and the officer pulled in behind it. Id. After the defendant left the car, the officer told the defendant to "hold up" to which the defendant responded "What do you want?" while backing away from the officer. Id. When told not to run, the defendant fled. Id. The court held that the defendant, through his actions, at least momentarily yielded to the officer's apparent show of authority. Id. at 1567.

In this case, Sadar did show authority by stating words to the effect of "Police. Stop right there. I need to talk to you." Hernandez relies on Sadar's testimony describing his reaction to this statement to establish that he submitted to Sadar's show of...