U.S. v. Palmer, No. 91-30291

• Decision Date: 16 August 1993
• Docket Number: No. 91-30291
• Citation: 3 F.3d 300
• Parties: 37 Fed. R. Evid. Serv. 855 UNITED STATES of America, Plaintiff-Appellee, v. Mark Brock PALMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 300

3 F.3d 300

37 Fed. R. Evid. Serv. 855

UNITED STATES of America, Plaintiff-Appellee, v. Mark Brock PALMER, Defendant-Appellant.

No. 91-30291.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1992.

Opinion April 5, 1993.

Opinion Withdrawn Aug. 16, 1993.

Order and Opinion Aug. 16, 1993.

Peter S. Schweda, Waldo & Schweda, Spokane, WA, for defendant-appellant.

Pamela J. Byerly and Earl A. Hicks, Asst. U.S. Attys., Spokane, WA, for plaintiff-appellee.

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

Justin L. Quackenbush, Chief District Judge, Presiding.

Alan A. McDonald, District Judge, Presiding.

Before: WRIGHT, HUG, and POOLE, Circuit Judges.

ORDER

The opinion filed April 5, 1993, 990 F.2d 490, is hereby WITHDRAWN.

OPINION

POOLE, Circuit Judge:

Appellant Mark Brock Palmer appeals his conviction for manufacturing 100 or more marijuana plants, in violation of 21 U.S.C. Sec. 841(a). Palmer argues that the district court erred in (1) denying his motion to suppress, (2) admitting his post-arraignment statement and (3) denying his motion to dismiss. We affirm.

I.

On the afternoon of February 11, 1991, a Spokane County Sheriff Deputy arrested Jack Roberts after the deputy smelled a strong odor of marijuana coming from Roberts' vehicle during a traffic stop. The deputy obtained a warrant for the search of the car and obtained several bags of marijuana therefrom.

Deputy Cal Walker, who had information regarding Roberts' growing marijuana at various locations in Spokane County, met with Roberts shortly after his arrest. Roberts gave a statement to Walker and directed him to the site of a marijuana grow at a residence on West Long Lake Road near Ford, Washington, where Palmer lived with his two children. Roberts stated that he and Palmer were conducting a marijuana grow operation in the residence.

Walker's supervisor, Lieutenant Michael Myhre, informed Drug Enforcement Administration (DEA) Agent John Dudley about Roberts' statement because Myhre knew that the DEA had prior involvement with Palmer. Palmer had previously been convicted for possession with intent to distribute marijuana and had been the subject of a 1990 DEA investigation. After being informed, Dudley provided information regarding Palmer's criminal history to Walker, who was preparing an affidavit in support of the search warrant for the Long Lake Road residence. Dudley also relayed information regarding the investigation to an Assistant United States Attorney, who indicated that the federal government would be interested in prosecuting the case if more than 100 marijuana plants were found.

Walker obtained a search warrant for the Long Lake Road residence from the Spokane County District Court at 11:57 p.m. on February 11. The warrant was executed by Walker and other deputies at approximately 1:20 a.m. on February 12. The search revealed a marijuana grow operation in the basement. Dudley, who accompanied the deputies to the residence, removed, examined and obtained a sample of the marijuana plants during the execution of the search warrant.

Palmer was subsequently arrested on federal drug charges. After his arraignment in the United States District Court for the Eastern District of Washington, Palmer made the following statement to federal law enforcement officials: "I don't want any deals. I have been through this before. I just want to get it behind me."

Before trial Palmer made an objection to the admission of any evidence of his prior conviction based on Federal Rule of Evidence 404(b). Palmer made a motion to preclude the same evidence on the same basis at the beginning of trial. The district court did not rule on the objection or motion before the commencement of trial but instructed the parties to address the issue with the court before making any reference to any material that could constitute evidence of a prior conviction. At this time, the district court provided the parties with several cases related to Palmer's objection and motion. The district court did not inform Palmer that his objection or motion had to be renewed at trial, as it had on other matters that were raised before trial.

During a bench conference in the course of Palmer's cross-examination, the prosecutor notified the court that he intended to introduce the post-arraignment statement, referencing the prior conviction issue previously addressed by the court and indicating that the post-arraignment statement was admissible to show Palmer's motive. The prosecutor also argued during the bench conference that the statement was admissible to impeach Palmer's credibility. The district court ruled during the bench conference that the government would be allowed to question Palmer about the post-arraignment statement. This was the only ruling the district court made regarding evidence of Palmer's prior conviction.

The prosecutor subsequently questioned Palmer regarding his post-arraignment statement and stated during closing argument that "Mr. Palmer testified he'd previously been involved in distribution of controlled substances--marijuana, excuse me, he said marijuana...." The prosecutor also wrote Mr. Palmer's post-arraignment statement on the courtroom's chalkboard for the jury during his closing argument.

II.

Palmer argues that the district court erred in denying his suppression motion because the search did not comport with Federal Rule of Criminal Procedure 41(c), which requires warrants issued thereunder to be served in the daytime. The ultimate conclusion of the legality of the search is a mixed question of law and fact reviewed de novo. United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988). The underlying factual issues are reviewed for clear error. Id.

Palmer contends that Dudley's participation in the search of the Long Lake Road residence made it a federal search subject to Rule 41. However, Rule 41 does not apply to a search performed by local officials unless the search is "federal in character." See United States v. Crawford, 657 F.2d 1041, 1046 (9th Cir.1981). Whether a search is essentially a federal one and thus governed by Rule 41 is a factual inquiry. See Byars v. United States, 273 U.S. 28, 32, 47 S.Ct. 248, 249, 71 L.Ed. 520 (1927).

Generally, a search is federal if from the beginning it was assumed a federal prosecution would result. See United States v. Radlick, 581 F.2d 225, 228 (9th Cir.1978). The record shows that the deputies initiated the investigation and merely provided information to the DEA. The record also shows that the deputies would have sought the search warrant regardless of Agent Dudley's involvement. The record further shows that the United States Attorney had no intention of prosecuting this case before the search occurred. This case is therefore unlike Crawford, in which the federal agent enlisted the assistance of local officials in a pending investigation and the local officials later initiated their own investigation with the help of the federal agent. See Crawford, 657 F.2d at 1043-46. The investigation in this case was initiated and controlled by the local law enforcement officials involved.

Certainly, Dudley participated in the drafting of the warrant and the search of the residence. However, a federal officer's "mere participation" in a search does not make it a federal one. See Byars, 273 U.S. at 32, 47 S.Ct. at 249. The federal involvement in the search was not significant enough to make the search a federal one. See United States v. MacConnell, 868 F.2d 281, 283-84 (8th Cir.1989). Therefore, the district court's finding that the search was not governed by Rule 41 is not clearly erroneous. ¹

III.

Palmer argues that the district court's admitting his post-arraignment statement violated Federal Rule of Evidence 404(b). When properly raised at trial, we review such evidentiary issues for an abuse of discretion. United States v. Brown, 880 F.2d 1012, 1014 (9th Cir.1989). However, absent a contemporaneous objection, we normally review for plain error. See United States v. Houser, 804 F.2d 565, 570 (9th Cir.1986).

There is a dispute in this case as to whether Palmer has preserved this issue for appeal. While the record does not reflect that Palmer made a contemporaneous objection and the government contends that no such objection was made, Palmer contends that he did contemporaneously object and that objection was somehow not recorded. Because such an occurrence is not impossible, the court should attempt to "re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure." Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704 (1943) (Frankfurter, J., concurring).

The circumstances in this case suggest that a contemporaneous objection may have been made: during the bench conference, the district judge expressed some uncertainty as to whether an objection had been made, stating: "I'll rule on the objection if there was one, but I don't believe there was one." Additionally, the prosecutor's statement during the bench conference makes an ambiguous reference to a defense objection. Where such uncertainty exists, it may be better to proceed in the manner which will most likely prevent injustice and deem the issue preserved for appeal. Cf. Shows v. M/V Red Eagle, 695 F.2d 114, 117 (5th Cir.1983) (holding issue preserved for appeal in spite of a similarly uncertain record).

But there is no need to rely on such a benevolent presumption in this case. Even if he did not object at trial, Palmer sufficiently preserved the issue of the admissibility of his post-arraignment statement under Rule 404(b) for appeal by both objecting and moving for its exclusion on this basis before the commencement of trial. In Palmerin v. City of Riverside, 794 F.2d 1409 (9th Cir.1986), we rejected an invariable requirement that an objection that is the subject of a pretrial...