United States of America, Plaintiff-appellee, v. Alana Laree Ensign, Aka Alana Ensign, Defendant-appellant, 129 F.3d 128 (9th Cir. 1997)

MEMORANDUM^* 

Ensign challenges the district court's refusal to suppress seized evidence, alleging that the affidavit supporting the warrant omitted material information. She correctly notes that " [t]he only issue is whether there is a reasonable probability that the ... suppression hearing would have been different if the material [had] been disclosed in a timely manner." [AOB 13]. Because the evidence supporting the search of Dwight Bryant's residence differs considerably from the evidence supporting the search of Ensign's residence, we find Judge Hatter's ruling in the Dwight Bryant case inapposite. The district court correctly found that even if the affidavit had included the additional evidence Ensign cites, the search warrant still would have issued, especially in light of Rickey Bryant's bomb-making past. The district court did not err in denying the motion to suppress.

Ensign also claims that the district court erred in refusing to give a "mere presence" instruction. However, the defendant's proposed instruction and the instructions given by the court achieved the same ends; both required the jury to find that Ensign was more than a mere spectator in order to convict. Ensign is not "entitled to an instruction that merely duplicates what the jury has already been told." United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992).

AFFIRMED.