Unpublished Disposition, 865 F.2d 266 (9th Cir. 1987)

MEMORANDUM^* 

Jorge Rueda-Ariza appeals his conviction for violation of 21 U.S.C. § 844(a), possession of cocaine. Rueda-Ariza contends that it was prejudicial error for the district court to admit into evidence a .38 caliber pistol and a silencer found in his co-defendant's bedroom at their joint jury trial for possession of cocaine. We review the district court's admission of evidence under Rule 403 of the Federal Rules of Evidence for abuse of discretion. United States v. Layton, 767 F.2d 549, 553 (9th Cir. 1985); United States v. Rubio, 727 F.2d 786, 798 (9th Cir. 1983). We affirm.

FACTS

On July 26, 1987, officers of the Alameda Police Department executed a search warrant on a trailer home occupied by Rueda-Ariza and his co-defendant, located on a ranch in Gilroy, California. The officers discovered Rueda-Ariza sleeping on a couch in the front room of the trailer. In the back bedroom, after some resistance, Rueda-Ariza's co-defendant was apprehended. A search of the back bedroom, apparently occupied solely by the co-defendant, revealed a plastic baggie with approximately two-tenths of a gram of cocaine, a .38 caliber automatic pistol and a silencer.¹  In a locked hall closet between the front room and the bedroom, the officers confiscated a second plastic baggie containing more than one gram of cocaine. With the baggie were various items belonging to Rueda-Ariza, including personal letters, business cards, a Mexican visa and his Colombian passport. The other contents of the closet--money, stereo equipment, bullets and other odds and ends--were not tied to any particular individual.

At trial, the government sought to introduce the pistol and silencer into evidence as probative of the co-defendant's consciousness of guilt. Trial Transcript at 1-9 (hereinafter "T.T. at --"). Over an objection by co-defendant's counsel that the prejudice of the firearm outweighed its probative value under Rule 403 of the Federal Rules of Evidence, the trial court admitted the weapons into evidence:

Okay. When you started talking about guns, I was thinking to myself, if we're talking about rifles or shotguns, I don't see the relevancy of that. I don't think there's a ranch in the State of California that doesn't have rifles and shotguns. But if we're talking about automatic pistols--a silencer didn't occur to me. If we're talking about Uzis or some of these hot-fire rapid weapons that one did not ordinarily use for hunting squirrels, rabbits and coons, then that might be admissible.

And so the evidence as to the rifles and shotguns I don't think is proper but the evidence as to the automatic pistol with a silencer certainly is probative, it appears to me, and will be admitted.

T.T. at 1-10--1-11. Rueda-Ariza's counsel later joined in the objection. T.T. at 1-21--1-22.

After the trial, the jury reached a verdict of guilty against both Rueda-Ariza and his co-defendant.

DISCUSSION

Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rueda-Ariza is correct in asserting that, in the case of co-defendants in a joint trial, the Rule 403 balancing process should weigh "not only ... the probative value of the evidence against the danger of unfair prejudice to the defendant against whom the evidence is introduced, but ... also ... any possible 'spillover' prejudice that may unfairly prejudice other defendants." United States v. Davis, 838 F.2d 909, 916 (7th Cir. 1988) (citing United States v. Rosenwasser, 550 F.2d 806, 808 (2d Cir.), cert. denied, 434 U.S. 825 (1977)); see also United States v. Hernandez, 780 F.2d 113, 117-18 (D.C. Cir. 1986); United States v. Figueroa, 618 F.2d 934, 944 (2d Cir. 1980). However, his claim that the trial court erred in failing to consider the effect of the introduction of the weapons in the joint trial is considerably weakened by a number of factors. He did not request a limiting instruction concerning the proper use of the weapons evidence by the jury. See Davis, 838 F.2d at 915-16. He did not move for a severance of the trial. Defense counsel's failure to object to a trial error or to request any other curative instruction makes it less likely that a reviewing court will find an abuse of discretion. See United States v. Wauneka, 842 F.2d 1083, 1089-90 (9th Cir. 1988).

However, we need not determine whether the trial court abused its discretion under this set of circumstances. The substantive offense of possession of cocaine requires only proof of knowing and intentional possession of a controlled substance. 21 U.S.C. § 844(a) (Supp. IV 1987). Possession may be actual or constructive, requiring only that the accused have power to exercise dominion and control over the controlled substance. United States v. Zumpano, 436 F.2d 535, 538 (9th Cir. 1970); Williams v. United States, 418 F.2d 159, 162 (9th Cir.), aff'd 401 U.S. 646 (1969).

More than a gram of cocaine was found in a locked cabinet containing what were undeniably Rueda-Ariza's personal possessions. At no time in the trial did the government suggest, directly or otherwise, that Rueda-Ariza was connected with the weapons. Any alleged error on the part of the trial judge, even if it were to meet the abuse of discretion standard, was more probably than not harmless. We therefore do not reach the merits of Rueda-Ariza's claim. See United States v. Owens, 789 F.2d 750, 757 (9th Cir. 1986) (violation of Rule 801 of the Federal Rules of Evidence), rev'd on other grounds, --- U.S. ----, 108 S. Ct. 838 (1988); F.R.Crim.P. 52(a).² 

AFFIRMED.