Unpublished Disposition, 908 F.2d 978 (9th Cir. 1987)

MEMORANDUM^** 

In these consolidated appeals, Leonard Pfeiffer appeals his conviction, following a jury trial, for two counts of being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g) (1) and 924(a); Leonard's wife, Gloria Pfeiffer, appeals her conviction, following a jury trial, for one count of aiding and abetting a felon to possess firearms, in violation of 18 U.S.C. §§ 922(g) (1) and 924(a) and of 18 U.S.C. § 2. The Pfeiffers contend that the district court erred by admitting into evidence ammunition and gun related items which were found in the Pfeiffers' home but which were not mentioned in the indictment. Gloria Pfeiffer also contends that the district court erred in denying her motion for judgment of acquittal because the government presented insufficient evidence that Leonard possessed the weapons, that she assisted with his possession, or that she intended to aid and abet Leonard's unlawful possession of the firearms. We affirm.

* The Pfeiffers argue that uncharged evidence of a second rifle, ammunition, speed-loaders, holsters, and other gun-related items found in their kitchen and in a shared bedroom closet along with the weapons charged in the indictment was irrelevant character evidence of "other crimes, wrongs, or acts" not falling within any of the exceptions under Fed.R.Evid. 404(b), and that, even if admissible under Rule 404(b), the danger of unfair prejudice outweighs its probative value under Fed.R.Evid. 403.

We review the district court's decision to admit evidence for abuse of discretion. United States v. Soliman, 813 F.2d 277, 278 (9th Cir. 1987). Whether prior conduct constitutes "other crimes" under Fed.R.Evid. 404(b) is a legal question, reviewed de novo. Id. A district court's determination that evidence is relevant or that its probative value outweighs its prejudicial effect is reviewed for abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989); United States v. Gilley, 836 F.2d 1206, 1213 (9th Cir. 1988).

Evidence should not be treated as "other crimes, wrongs, or acts" evidence when the evidence concerning the other acts and the evidence concerning the crime charged are inextricably intertwined. See United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987). Here, the items not charged in the indictment are direct evidence of the crimes charged against both defendants. As to Leonard, the availability of the ammunition, holsters, rifle, and gun parts tends to show that the weaponry was not some minor item which was secreted in some hiding place of Gloria's, but had a substantial presence and was readily available. It thus indicates that he had possession of the charged items. Cf. United States v. Petty, 798 F.2d 1157, 1161 (8th Cir. 1986) ("Because knowledge of the existence of the gun and ammunition is an element of the possession charge, evidence that [the defendant] knew of the other guns and ammunition suggests that he was aware of the existence of the weapons found in a closet."), vacated on other grounds, 481 U.S. 1034, on remand, 828 F.2d 2 (8th Cir. 1987), cert. denied, 486 U.S. 1057 (1988). As to Gloria, the open availability of the weapons and related items shows her intent to aid and abet Leonard's possession and her knowledge that he would possess them.

II

Gloria also contends that the district court erred in denying her motion for judgment of acquittal on Count II, which charged aiding and abetting Leonard's unlawful possession of a firearm on December 3, 1987.¹  Gloria argues that there was no evidence that she had the specific intent to facilitate or aid Leonard in possessing the firearms found in their shared bedroom closet or that Leonard intended to control or had physical control of the weapons discovered in the closet.

The denial of a motion for judgment of acquittal is reviewed to determine whether, viewing the evidence in the light most favorable to the government, there was substantial relevant evidence produced from which the jury reasonably could have found the defendant guilty beyond a reasonable doubt. United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988). Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 318 (1979) (emphasis in original)); United States v. Disla, 805 F.2d 1340, 1348 (9th Cir. 1986). All reasonable inferences must be drawn in favor of the Government. United States v. Endicott, 803 F.2d 506, 514 (9th Cir. 1986); United States v. Reese, 775 F.2d 1066, 1072 (9th Cir. 1985).

The elements of an aiding and abetting violation under 18 U.S.C. § 2 are:

(1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.

United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988). The abettor's criminal intent may be inferred from the attendant facts and circumstances and need not be established by direct evidence. Reese, 775 F.2d at 1072; United States v. Groomer, 596 F.2d 356, 358 (9th Cir. 1979).

In this case, sufficient evidence was presented to permit a rational trier of fact to find these elements beyond a reasonable doubt. Gloria admitted owning the firearms and related items. Probation officer Henke had warned Gloria, prior to Leonard's release on probation, that one of the conditions of Leonard's parole was that Leonard could not own, possess, transport, or control any firearms, and had instructed Gloria to dispose of the firearms or to keep them locked in a place to which Leonard would not have access. Despite this warning, Gloria left four weapons and a large quantity of ammunition unsecured and, indeed, openly available.²  Leonard knew where these items were located.

A rational trier of fact could infer from these circumstances that Gloria had the specific intent to facilitate Leonard's possession of firearms. Groomer, 596 F.2d at 358.³  A rational factfinder could further infer that Gloria had the mental state required for a violation of 18 U.S.C. § 922(g) (1), that is, that she knew that Leonard came into possession of the firearms. See United States v. McDaniel, 545 F.2d 642, 644 (9th Cir. 1976); United States v. Short, 493 F.2d 1170, 1172 (9th Cir.), cert. denied, 419 U.S. 1000 (1974).

Third, Gloria assisted in the commission of the underlying offense. She owned the firearms and related items. Even though she knew of the conditions of Leonard's parole, she left them openly available for Leonard's use.

Fourth, Leonard committed the offense. All of the weapons were unsecured, and Leonard knew of their location. He had shown his willingness to possess them when he picked up the Ruger at the gun store. A rational jury could infer that he was in possession of the weapons located (as he knew) in his own closet in his own bedroom.⁴ 

Thus, a rational trier of fact could find beyond a reasonable doubt that Gloria Pfeiffer had the specific intent to help Leonard Pfeiffer obtain weapons and knew that he was in possession of them. See McDaniel, 545 F.2d 642. A rational trier of fact could also find that she assisted in the underlying offense, which Leonard committed. See Adler, 879 F.2d at 495; Disla, 805 F.2d at 1348.

AFFIRMED.