Unpublished Disposition, 842 F.2d 335 (9th Cir. 1988)

No. 87-5131.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Central District of California; William D. Keller, District Judge, Presiding.

Before O'SCANNLAIN and LEAVY, Circuit Judges, and ORRICK,^**  District Judge.

MEMORANDUM^* 

Thornton appeals his conviction on four counts of being a felon in possession of unregistered firearms. He contends that the district court erred (1) by denying his motion to dismiss Count I of the superseding indictment for vindictive prosecution; (2) by denying his motion in limine to exclude evidence of related but uncharged criminal conduct; (3) by denying his motion to dismiss the remaining counts of the superseding indictment as a sanction for the erasure of tape recordings; and (4) by denying his motion to suppress evidence relating to the 1985 and 1986 searches that resulted in the filing of state narcotics and weapons possession charges against him. Thornton also argues that there was insufficient evidence to support his conviction. We affirm.

* On the issue of vindictive prosecution, we disagree with Thornton's argument that the severity of the charges against him were increased because he exercised his constitutional rights. See United States v. Hooton, 662 F.2d 628, 633 (9th Cir. 1981), cert. denied, 455 U.S. 1004 (1982). Aside from the fact that the evidence does not support his contention that the government had knowledge of the 1985 charge prior to the handing down of the first indictment, an "independent reason" exists for the charge appearing in the superseding indictment: By joining that charge to the similar 1986 charge, the government not only strengthened its case but succeeded in putting the subsequent events into clearer perspective as well. See United States v. Osif, 789 F.2d 1404, 1405 (9th Cir. 1986) (" [V]indictiveness is not present if there are independent reasons or intervening circumstances to justify the prosecutor's action"). Accord United States v. Martinez, 785 F.2d 663, 669 (9th Cir. 1986) (additional charges do not raise presumption of vindictiveness unless they arise out of same facts as charges in original indictment).

To adopt Thornton's line of argument here would be tantamount to holding that a prosecutor who fails to bring all conceivable charges against a defendant at the outset of a case forfeits the right to bring subsequent charges against him. This we decline to do. See United States v. Goodwin, 457 U.S. 368, 382 & n. 14 (1982) (broad scope of prosecutorial discretion at pretrial stage); Guam v. Fergurgur, 800 F.2d 1470, 1473 (9th Cir. 1986) (same), cert. denied, 107 S. Ct. 1570 (1987).

The district court did not err by denying Thornton's motion to dismiss Count I of the superseding indictment.¹ 

II

Evidence of crimes not charged in an indictment is generally admissible, but may be excluded if its only relevance is to show the defendant's criminal disposition. Fed.R.Evid. 404(b); United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir. 1982), cert. denied, 463 U.S. 1210 (1983). Evidence otherwise admissible under Rule 404(b) may also be excluded where its probative value is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403; Bradshaw, 690 F.2d at 708.

We have previously upheld the admission of evidence of weapons possession in narcotics trafficking cases. See, e.g., United States v. Crespo de Llano, 830 F.2d 1532, 1544 (9th Cir. 1987); United States v. Kearney, 560 F.2d 1358, 1369 (9th Cir.), cert. denied, 434 U.S. 971 (1977). While the instant case presents the flip side of the above (i.e., admitting evidence of narcotics trafficking in a weapons possession case), the record shows that the district court carefully weighed the admissibility of the evidence in question, balancing the competing interests of the evidence's obvious probative value against its equally obvious prejudice to Thornton. The district court also admonished the jury that the evidence was being admitted for the limited purpose of showing motive and method of operation. Cf. United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) (though limiting instruction advisable, failure to give one to jury not abuse of discretion). Under these facts, the district court did not abuse its discretion by denying the motion in limine. See United States v. Lopez, 803 F.2d 969, 972 (9th Cir. 1986), cert. denied, 107 S. Ct. 1958-59 (1987).

III

Whether a court should impose sanctions against the prosecution for destruction of evidence involves a balancing test, weighing "the quality of the Government's conduct" against "the degree of prejudice of the accused [.]" United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979) (en banc), cert. denied, 445 U.S. 917 (1980). A qualification to the above is that the destruction of evidence by local authorities over which the prosecution did not exercise control will not ordinarily be attributed to the prosecution, particularly where the local authorities were in possession of the evidence. United States v. Higginbotham, 539 F.2d 17, 21 (9th Cir. 1976) (loss of photographs from array by city police not attributable to FBI where photographs were never in FBI's possession and local police were not acting on behalf of federal government). Accord United States v. Traylor, 656 F.2d 1326, 1335 (9th Cir. 1981) (destruction of cocaine by local authorities not attributable to federal government, despite fact that cocaine originally seized by U.S. Customs officials); Loud Hawk, 628 F.2d at 1141-49 (destruction of evidence by state police not attributable to FBI where federal government not directly involved in defendant's arrest and search, nor in seizure and destruction of evidence).

Here, the tapes were at all relevant times in the possession of the Long Beach Police Department ("LBPD"). They were the result of LBPD work, not that of the federal government, and there is nothing to show that the LBPD was acting at the behest or under the control of the federal government in this matter. On the question of prejudice, Thornton's speculations failed to show that the erased tapes would have contained evidence important to his defense. Accordingly, there was no abuse of discretion in the district court's finding in favor of the government on this issue. See United States v. Roberts, 779 F.2d 565, 568-69 (9th Cir.), cert. denied, 107 S. Ct. 142 (1986).

IV

With respect to the 1985 search warrant, the record reflects that the confidential informant ("CI") who assisted the police had not only provided reliable information in the past, but that the information had involved criminal activity similar to that with which Thornton was charged. See United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir. 1986) (presumption of trustworthiness of information provided by informant who gave accurate information in past is enhanced by fact that crimes involved are similar). Moreover, the information provided by the CI and the two anonymous callers was interlocking, i.e., it corroborated key points. See United States v. Landis, 726 F.2d 540, 543 (9th Cir.) (interlocking tips from different informants enhance credibility of each), cert. denied, 467 U.S. 1230 (1984). Finally, much of the information provided was not only detailed, but was corroborated by the independent investigation of the police as well.

Among the information provided in the affidavit supporting the 1986 search warrant was the following: (1) one CI had purchased cocaine from Thornton; (2) another CI had sold cocaine for Thornton; (3) two CIs had bought cocaine from Jerome Williams, one of whom identified Williams as an employee of Thornton; (4) two CIs identified photographs of Thornton and Williams; and (5) the CIs also identified relevant addresses and vehicles. Independent investigation by the police corroborated and supplemented much of the above information.

Under the totality of the circumstances, a substantial basis existed for the magistrate's finding of probable cause for issuing the 1985 and 1986 search warrants. See United States v. Dozier, 826 F.2d 866, 870-71 (9th Cir. 1987); United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir. 1987).² 

V

Thornton's final contention, that the evidence presented at trial does not support his conviction, is wholly without merit. Viewed in a light most favorable to the prosecution, more than substantial evidence was presented upon which a reasonable jury could, and did, find Thornton guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Patterson, 820 F.2d 1524, 1525 (9th Cir. 1987).

AFFIRMED.³