United States v. Calvin Colbert, Jr. , 542 F. App'x 700 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50187
Plaintiff - Appellee, D.C. No. 2:09-cr-00301-GW-1
v.
MEMORANDUM*
CALVIN CHARLES COLBERT, Jr.,
AKA Cal, AKA Calvin Colbert,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted October 9, 2013
Pasadena, California
Before: PAEZ and HURWITZ, Circuit Judges, and ERICKSON, Chief District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for the District of North Dakota, sitting by designation.
Calvin Colbert appeals his conviction and sentence for possession with
intent to distribute cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B)(iii), and
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
1. The district court did not err when it denied Colbert’s motion to suppress the
evidence seized under the search warrant on the basis that Officer Gerald Beall’s
affidavit included alleged misstatements and omissions in violation of Franks v.
Delaware, 438 U.S. 154 (1978). Although Beall’s affidavit included ambiguous
statements that made the source of some of the observations in his affidavit
uncertain, the district court did not clearly err when it found that Beall was credible
and did not seek to mislead the magistrate judge by leaving attribution of the
observations ambiguous.
As the district court noted, Beall was part of an investigative team that made
real-time reports of observations to Beall, some of which he included in his
affidavit. An affidavit need not specifically and accurately attribute each reported
observation. See United States v. Sitton, 968 F.2d 947, 955 (9th Cir. 1992).
Unlike the officer in United States v. Davis, 714 F.2d 896 (9th Cir. 1983), where
2
false attribution violated Franks, Beall did not explicitly state in the affidavit that
he observed something he did not, in fact, observe.
2. The district court did not err when it ruled that Beall’s pre-Miranda
questions, and Colbert’s responses, about weapons on Colbert’s body were
admissible under the public safety exception. See New York v. Quarles, 467 U.S.
649, 656, 658 (1984).
Although Beall had subdued and handcuffed Colbert “a couple minutes
before” he posed the disputed questions, weapons and dangerous objects on
Colbert’s body still posed a danger to Beall, who was about to conduct a body
search. Beall’s questioning fits within the public safety exception because he
asked Colbert whether he had any weapons on his body. Colbert’s response
included unsolicited information about the location of the firearm. Spontaneous,
unsolicited information in response to a question that falls within the parameters of
the public safety exception is admissible. United States v. Carrillo, 16 F.3d 1046,
1050 (9th Cir. 1994).
3. The district court did not abuse its discretion by admitting a photograph of a
text message from an individual named “Monae” on a cell phone the officers
seized from the hotel room where they arrested Colbert. At trial, Colbert testified
that he did not know anyone named Monae. The government sought to introduce
3
the photograph as circumstantial impeachment evidence that Colbert, in fact, did
know Monae. After establishing that the phone belonged to Colbert, the
government called a witness to the stand to establish that she took the photograph
of the text message showing that the message was from a person whose name was
programmed into Colbert’s phone. In light of this evidence, the district court did
not err in concluding that there was sufficient authentication of the photograph as
required by Federal Rule of Evidence 901(a) to warrant its admission.
4. The district court did not err when it ruled at an in limine hearing that it
would allow Colbert to call Beall as a witness only if Beall’s testimony was
relevant to Colbert’s case-in-chief, but not to offer it solely for purposes of
impeachment. After the government rested its case, Colbert made no attempt to
call Beall to testify. Colbert’s failure to attempt to call Beall after the
government’s case-in-chief is fatal to his argument on appeal. See Tennison v.
Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001).
AFFIRMED.
4