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finding no procedural harm resulting from a confession that began "six hours and a few minutes after [defendant's] arrest"
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D.C. No. CR-96-40056-CW
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted July 6, 2000.
Appeal from the United States District Court for the Northern District of California Claudia Wilkin, District Judge, Presiding.
Before NOONAN, THOMAS, and BERZON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Appellant Herman Wade Malone appeals from his conviction for being a felon in possession of a firearm on two counts, in violation of 18 U.S.C. § 922(g)(1), for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and for carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). We reverse and remand for a new trial on the first count and affirm the convictions on the other counts.
Malone argues that the district court abused its discretion in denying his motion to sever count one, felon in possession of a firearm, from the remaining counts because the counts were improperly joined under Fed.R.Crim.P. 8 and because joinder was highly prejudicial under Fed.R.Crim.P. 14. Malone has waived his severance motion under Rule 14 by not renewing it at the close of evidence at trial. See United States v. Felix-Gutierrez, 940 F.2d 1200, 1208 (9th Cir.1991). However, this court may still review a misjoinder claim under Rule 8 on the merits. See United States v. Terry, 911 F.2d 272, 277 (9th Cir.1990). Reversal under Rule 8 is required where the misjoinder "results in actual prejudice because it 'had [a] substantial and injurious effect or influence in determining the jury's verdict." ' Id. (citation omitted).
In this case, the first count arose out of a social evening in which Malone's recreational vehicle ("RV") was stopped for a traffic violation and a firearm was discovered in the subsequent search of the vehicle. The latter counts were the result of a separate investigation involving the use of an informant and the execution of a search warrant. Under these circumstances we hold that the district court erred in denying Malone's motion to sever. "Joinder is proper when the same facts must be adduced to prove each of the joined offenses." United States v. Portac, Inc., 869 F.2d 1288, 1294 (9th Cir.1989). In this case, the only evidence the first and other counts have in common is Malone's status as a felon. Section 922(g) cannot be used to circumvent the requirements of Rule 8(a) by linking any and all crimes in which a felon and a firearm are involved, where the crimes have nothing else in common. Such joinder may have seriously prejudiced Malone's defense in count one, where the jury's awareness of the second count prevented Malone from successfully arguing that the gun may have belonged to one of the three other passengers in the RV. However, as to the other counts, misjoinder was harmless since the evidence against Malone on these counts was overwhelming. See United States v. Velasquez, 772 F.2d 1348 (7th Cir.1985); see also United States v. Lane, 474 U.S. 438 (1986) (holding that the doctrine of harmless error is applicable to misjoinder cases under Rule 8).
Malone also challenges the district court's admission of certain inculpatory statements. The record contains conflicting evidence from the arresting officers regarding the circumstances in which these statements were made. Which version actually occurred may--or may not--be relevant to the determination whether there was custodial interrogation. If, on remand, Malone seeks once again to preclude the introduction of these statements at trial, the district court should make a factual finding concerning whether the officers were speaking to Malone, or only to each other, when they indicated that the gun may have been stolen, and should consider the custodial interrogation question in light of that factual finding.
Finally, Malone challenges the search of the RV after the traffic stop. However, the smell of alcohol on Malone's breath and the bottle of cognac in plain view under the seat entitled the officers to search the entire vehicle. See United States v. Ross, 456 U.S. 798, 825 (1982).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.