Appeal from the United States District Court for the District of Arizona. D.C. No. CR-93-536-TUC-WDB. William D. Browning, District Judge, Presiding.
Before: Alfred T. Goodwin, Cecil F. Poole, and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Goodwin.
Dennis Blackstone appeals his conviction for possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). He claims the district court erred in 1) admitting overly prejudicial evidence of drug paraphernalia, expert testimony connecting guns and drugs, and the nature of his prior conviction; 2) refusing to allow surrebuttal testimony; and 3) refusing to suppress evidence of the search of his truck and his pre-Miranda statements.
I. FACTS AND PROCEDURAL HISTORY
Shortly after 11 p.m. on June 5, 1992, trucker Dennis Blackstone stopped his 18-wheeler at the port of entry on the border between Arizona and New Mexico and attempted to purchase a permit to cross the state. After Arizona Department of Public Safety Officer Chris Long noticed two violations in Blackstone's log book, he decided to inspect the truck.*fn1 He testified at trial that at this time he smelled marijuana on Blackstone, although Blackstone did not appear incapacitated. While inspecting the cab of the truck, Long spied a marijuana pipe on the floor, which led him to notice and to open a tin playing card box that contained approximately two and one-half grams of marijuana. Long arrested Blackstone, handcuffed him and took him to the nearby Motor Vehicle Department ("MVD") office. He did not read Blackstone his rights.
Long then began to search the truck in earnest. Behind the truck's cab he found more paraphernalia used to smoke marijuana, as well as four pages of recipes for making methamphetamine. He also found papers that led him to suspect Blackstone might be prohibited from possessing firearms. Finally, in the passenger door pocket, Long discovered a .380 semiautomatic Colt Mark IV handgun enclosed in a cloth gun case, loaded and with the safety off.
Long packed his discoveries into a paper bag, collected Blackstone from the MVD and took him, still handcuffed, to his own office. He still did not read Blackstone his rights. Then, in front of the handcuffed Blackstone, Long began to empty the bag piece by piece. As soon as he removed the gun, still in its case, Blackstone blurted out, "I was afraid you'd find that." Blackstone then told Long he was a convicted felon, the gun was his wife's, and she must have put it in the truck without his knowledge.
On March 10, 1993, a grand jury indicted Blackstone on one count of possession of a firearm by a felon. 18 U.S.C. § 922(g)(1).*fn2 Blackstone's first trial lasted four days and ended in mistrial after the jury deadlocked. Blackstone's second trial resulted in his conviction and, ultimately, his sentence of 27 months imprisonment, to be followed by a term of supervised release.
At trial, the crucial issue was whether Blackstone had knowledge of the gun found in the truck he was driving. No physical evidence, such as fingerprints, existed to connect Blackstone to the gun.*fn3 The government put forth the theory that, because Blackstone had drugs, and because drugs and guns go together, Blackstone had a motive for having a gun and must have known of it. A special agent with the Drug Enforcement Agency ("DEA") testified that firearms and methamphetamine laboratories invariably go together. In his defense, Blackstone claimed he had no knowledge of the gun's presence. His girlfriend, Dena Marie, testified she had bought the gun for her own protection, had put it in the passenger door pocket of the truck at a time when she intended to accompany Blackstone on a trip, and then neglected either to tell him or remove the gun when she changed her plans.
II. ADMISSION OF DRUG-RELATED EVIDENCE
We review for abuse of discretion a district court's decision to admit evidence of extrinsic acts, United States v. Feldman, 788 F.2d 544, 557 (9th Cir. 1986), cert. denied, 479 U.S. 1067, 93 L. Ed. 2d 1003, 107 S. Ct. 955 (1987), and its decision to allow expert testimony, United States v. Rahm, 993 F.2d 1405, 1409-10 (9th Cir. 1993)(clarifying standard to be abuse of discretion rather than "manifest error").
Over the objections of the defense, the district court allowed the admission of the marijuana paraphernalia and the methamphetamine recipes under Fed. R. Evid. 404(b). The government's avowed purpose in introducing this evidence was to defeat an anticipated "no knowledge" defense by Blackstone. The government reasoned that Blackstone's possession of marijuana paraphernalia and the methamphetamine recipes made it reasonable to assume that he intended to have a gun. The government based its theory on cases holding that evidence of drug- trafficking is relevant to the charge of being a convicted felon in possession because of the "logical nexus between guns and drug traffic." See United States v. Butcher, 926 F.2d 811, 816 (9th Cir.)("evidence of narcotics trafficking may be properly admitted to show knowing possession of a weapon."), cert. denied, 500 U.S. 959, 114 L. Ed. 2d 724, 111 S. Ct. 2273 (1991); United States v. Simon, 767 F.2d 524, 527 (8th Cir.), cert. denied, 474 U.S. 1013, 88 L. Ed. 2d 474, 106 S. Ct. 545 (1985); United States v. Fuller, 887 F.2d 144, 147 (8th Cir. 1989), cert. denied, 496 U.S. 908, 110 L. Ed. 2d 273, 110 S. Ct. 2592 (1990).
The evidence that Blackstone had marijuana for his personal use was simply not relevant to his knowing possession of the gun. The reasons the courts have been willing to assume that drug-trafficking is relevant to the question whether the defendant possessed a firearm do not support drawing a connection between the possession of marijuana for personal use and the possession of a firearm. Courts that have assumed a connection between drugs and guns explain that "drug traffickers typically possess weapons to guard their drugs and money." Butcher, 926 F.2d at 813. The dangers of drug-trafficking may rationalize a ...