Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Basilio RIVERO, Defendant-Appellant.

No. 89-50013.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 2, 1990.* Decided Feb. 7, 1990.

Before NELSON, BRUNETTI and KOZINSKI, Circuit Judges.


Rivero moved to suppress the results of searches of his home and business; the district court denied the motion without an evidentiary hearing, holding that Rivero had failed to make a sufficient showing under Local Rule 9.2 of his standing to challenge the search. RT (10/3/88) at 12, 13. We need not resolve whether the district court's ruling was proper, as any error was harmless. At trial, the government introduced only three pieces of evidence obtained from the challenged searches: (1) an Ohaus scale; (2) a telephone bill; and (3) a receipt bearing an address on Central Avenue where drugs were found. See RT (10/5/88) 92-93, 97-99, 113-20.

The effect of this evidence was de minimus. As to the scale, the jury heard uncontroverted testimony that no narcotics residue or fingerprints were found on it. RT (10/5/88) 98. The phone bill was used to demonstrate that Rivero and his co-conspirator had communicated by telephone, but this fact had already been proven by admission of the co-conspirator's phone bill showing several calls made to Rivero's beeper number. RT (10/5/88) 124-25. Finally, the receipt bearing the Central Avenue address was unnecessary to tie Rivero to the house where drugs were found, as the police had earlier searched that house, finding Rivero there with the drugs. RT (10/5/88) 5-13.

We review the district court's evidentiary rulings for abuse of discretion and will only reverse if an evidentiary error "would have more likely than not affected the verdict." United States v. Faust, 850 F.2d 575, 585 (9th Cir. 1988). Here, even without the evidence from the two challenged searches, the case against Rivero was overwhelming: Rivero was found in an empty house, barren of furniture, clothing and food, and had the keys to the front door and garage in his possession; RT (10/5/88) 5-7, 18-19; Rivero's car was in the garage, RT (10/5/88) 14-17, 72-74; the trunk of the car contained more than $169,000 in cash, RT (10/5/88) 15; beside the car was an open cardboard box containing ten kilograms of cocaine and bearing Rivero's palmprint, RT (10/5/88) 7-13, 166; and Rivero was wearing a beeper whose phone number was the same one listed on his co-conspirator's phone bill. RT (10/5/88) 20-21. Accordingly, it was not reversible error for the district court to admit the evidence obtained from the challenged searches.

Rivero also argues that the district court abused its discretion in admitting hearsay testimony from Officer Perez regarding ownership of the house on Central Avenue where the cocaine was found. We disagree. The court sustained the hearsay objection in time to prevent the officer from stating that Rivero had an interest in the house. RT (10/5/88) 58. In any event, the evidence linking Rivero to the drugs found at the house was overwhelming.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3