Unpublished Disposition, 862 F.2d 875 (9th Cir. 1988)

MEMORANDUM^* 

Jody Jenkins appeals from the judgment entered following her conviction by a jury for knowingly making a false statement concerning her residence to a federally licensed firearms dealer in violation of 18 U.S.C. § 922(a) (6) (1982). Jenkins seeks reversal on the following grounds:

One. The district court erred in denying her motion to suppress evidence observed in plain view during a search of her home pursuant to a warrant.

Two. The district court committed prejudicial error in admitting evidence of her husband's prior felony record.

Three. The court committed prejudicial error in admitting (1) evidence concerning the circumstances of the seizure of the handgun described in the indictment, and (2) testimony regarding the fact that her husband was found hiding in a closet during a protective sweep of Jenkins' residence.

Four. The prosecutor was guilty of misconduct during closing argument by referring to her husband's past criminal record.

A warrant was issued authorizing the search of Jenkins' residence in Olancha, California based on probable cause that her husband, Rodney Catsiff, was in possession of four Fujitsu radios used by him in committing the crime of impersonating a federal officer. During a protective sweep conducted in conjunction with the execution of the warrant, the officers observed two hand guns in plain view on top of a dresser in the master bedroom. One of these weapons was the Harrison and Richardson 380 automatic referred to in the indictment as having been purchased by Jenkins from a federally licensed firearms dealer after she gave false information concerning her residence. The weapons were loaded. One of the handguns was in a "man's holster."

Earlier that day, when the officers first arrived at Jenkins' residence, they knocked on the front and back doors and received no response. The officers observed through a window by the front door that the television was on. In a short time, Jenkins arrived in a pick-up truck that had a two-way radio. Jenkins was asked if her husband was home. Jenkins stated that he was out of the area. Jenkins then allowed the officers to enter the residence. Special Agent Devitt observed a cigarette burning in an ashtray. The officers immediately conducted a protective sweep of the residence. The handguns were seized and Deputy Freshour found Catsiff hiding in a small closet in a child's bedroom.

Catsiff was arrested as a felon in possession of a handgun in violation of California Penal Code Section 12021(a) after all the facts were related to a deputy district attorney. The prosecutor authorized the arrest.

II

Jenkins argues that because the handguns were not described in the search warrant, the officers violated her fourth amendment rights by seizing these weapons. She asserts further that the "plain view" exception is inapplicable because it was not immediately apparent to the officers that they had probable cause to believe that possession of the handguns was evidence of a crime. In Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149 (1987), the Supreme Court held that an object observed in plain view by officers lawfully on the premises cannot be seized unless the officer has probable cause to believe the object is stolen, contraband, or evidence of a crime. Id. at 1153-54.

We must decide whether the district court was correct in holding that the executing officers had probable cause to believe "a nexus existed between the viewed item and criminal activity." United States v. Washington, 797 F.2d 1461, 1469 (9th Cir. 1986). We review the denial of a motion to suppress independently without deference to the district court's conclusion that a seizure was reasonable. See United States v. Andrade, 783 F.2d 1431, 1433 (9th Cir. 1986). ("We review motions to suppress de novo ").

The undisputed evidence shows that prior to going to Jenkins' residence, each of the five officers who executed the warrant and conducted the search were aware that Catsiff was a felon who was prohibited from possessing a handgun. The day before the search, Special Agent Devitt had been advised by Alcohol, Tobacco, and Firearms Agents that Catsiff had just been sentenced to probation in Las Vegas on federal firearms violations and was returning to Olancha, California.

The information known to the officers prior to the seizure of the handguns was sufficient to constitute probable cause that Catsiff was guilty of a crime involving these weapons. Catsiff was known to be an ex-convict. Catsiff had been alone in the residence prior to the entry of the officers. There was probable cause to believe he had exercised dominion and control over the premises and the handguns in the master bedroom. The officers could logically infer from the fact that Catsiff hid himself in a closet that he had consciousness of his guilt of at least constructive possession of the handguns. Furthermore, the officers could also infer that Catsiff was aware, because of his conviction on federal firearms charges, that he would be arrested if found in possession of the handguns in the master bedroom. The fact that Jenkins lied to the officers by stating her husband was out of the area was an additional factor supporting the officers' belief that Catsiff was guilty of unlawful possession of the handguns.

Jenkins asserts that the fact that the officers called the district attorney's office before arresting Catsiff and seizing the handguns is proof that it was not immediately apparent to them that the weapons were evidence of a crime. We disagree. The evidence known to the officers prior to calling the prosecutor demonstrated that the officers were aware of facts that constituted probable cause to believe that Catsiff was guilty of the crime of possession of a concealable handgun by a felon. We agree with the district court's observation that " [t]he officers commendably went to the inconvenience to verify defendants' story and to obtain legal advice in order to be sure that the seizure would be legal." The district court's observation is in accord with the following statement from United States v. Chesher, 678 F.2d 1353 (9th Cir. 1982)

It would be wholly counterproductive to the deterrent function of the exclusionary rule for this court, in effect, to penalize the officer for being careful and cautious ... [T]he delay in time between the initial discovery ... and its ultimate seizure [does not weigh] against finding a valid plain view seizure where the Coolidge requirements are otherwise met."

Id. at 1365-57 n. 2.

The district court did not err in denying the motion to suppress and in admitting the Harrison and Richardson 380 automatic into evidence.

III

Jenkins alleges that the court erred in admitting evidence that her husband was a felon who had previously been convicted of firearms violations. The district court precluded the government from introducing this evidence in its case in chief.

Jenkins presented evidence that she and not Catsiff possessed the handguns. She offered testimony that she showed the firearm to some police officers in Catsiff's presence to try to persuade the jury that she was not conscious of the fact that she had violated the law in purchasing the handguns. The court permitted the prosecutor to rebut this testimony by offering evidence from which the jury could infer that Jenkins showed the weapon to the police to provide a defense for her husband should he be accused of being an ex-convict in possession of a concealable handgun.

We review a trial court's decision concerning the relevancy of evidence for abuse of discretion. United States v. Polizzi, 801 F.2d 1542, 1555 (9th Cir. 1986). The district court properly weighed the probative value of the evidence of Catsiff's criminal record against its prejudicial effect. Because Jenkins opened the subject of her lack of knowledge that she had violated the law in purchasing the handgun in her case in chief, the court did not err in allowing the government to introduce evidence from which the jury could infer that she falsely claimed ownership and possession of the weapon to defense witnesses to shield her husband from arrest for possession of a handgun. See United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir. 1982). (Defendant who opens up a subject cannot object to evidence offered in rebuttal.) The district court did not abuse its discretion in admitting evidence of Catsiff's felony status. Admission of this evidence did not unfairly prejudice Jenkins.

IV

Jenkins also argues that the district court erred by admitting evidence describing how police officers discovered the handgun and found Catsiff hiding in a closet in their residence. At trial, Jenkins' attorney objected to the introduction of this evidence on relevance grounds. He also offered to stipulate that the Harrison and Richardson 380 handgun was found in Jenkins' possession. The district court overruled the objection and rejected the stipulation because it concluded that the testimony was relevant background information that would be useful to the jury.

Evidence concerning the search of the residence and the fact that Catsiff hid from the police was not relevant to the gun control charges against Jenkins. It did not in any way tend to prove that she gave a false statement concerning her residence. It clearly was not necessary background information to any issue in the case. The district court abused its discretion in admitting evidence concerning the search of the residence. After examining the entire record, however, we have concluded that the error was harmless because it did not affect Jenkins' substantial rights. Fed. R. Crim. P. 52(a). The evidence that Jenkins gave false information concerning her residence was overwhelming and virtually uncontradicted. We have held previously that error in admitting evidence is harmless if it did not "add anything of substance" to the prosecutor's case. United States v. Hozian, 622 F.2d 439, 442 (9th Cir. 1980). The government presented evidence that Jenkins told the gun dealer when she purchased the Harrison and Richardson 380 that she was a Nevada resident. She produced a Nevada driver's license which bore a Nevada home address. Other government witnesses testified that (1) Jenkins had never lived at the claimed Nevada address and (2) Jenkins had lived in California since July 1986.¹  Jenkins offered no evidence that she had not falsely given a Nevada address to the gun dealer. Because the only factual question to be determined by the jury was undisputed, namely, did Jenkins furnish a false Nevada residence, the error in admitting the challenged evidence was harmless.

V

Jenkins also asserts that the prosecutor was guilty of misconduct by making references to Catsiff's prior record and suspicious behavior during the summation to the jury. Jenkins' contention is meritless because the effect, if any, of the prosecutor's comments was insufficient to deprive her of due process. Prosecutorial misconduct during closing argument is reversible error only if "the remarks were so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." United States v. Patel, 762 F.2d 784, 795 (9th Cir. 1985).

The prosecutor's comments consisted of an isolated reference to Catsiff's felon record and the fact that he was found in a closet during the police protective sweep. As discussed above, evidence of Catsiff's criminal record was relevant to establish Jenkins' motive for showing police officers the gun. Testimony concerning Catsiff's arrest and the seizure of the handguns while improperly admitted, was harmless error. Because of the overwhelming strength of the government's case and the absence of a viable defense to the charge that she furnished false residency information to a federally licensed gun dealer in purchasing a handgun, the prosecutor's comments did not deny Jenkins a fair trial.

The judgment is AFFIRMED.