United States v. John Edward Spencer

ORDER

The opinion filed December 16, 1992, slip op. 14547, and appearing at 981 F.2d 1083 (9th Cir.1992) is amended as follows:

*743 [Editor’s Note: Amendments have been incorporated into published opinion.]

With these amendments, the panel has voted unanimously to deny the petition for rehearing.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION

John Edward Spencer appeals his conviction for being a convicted felon in possession of a firearm. Spencer argues that the district court (1) erroneously denied him the opportunity to present evidence that another individual who owned the vehicle at issue in this case was found with a gun under the driver seat of another vehicle several days after Spencer’s arrest; (2) should have suppressed evidence obtained when the police stopped the car in which Spencer was a passenger and frisked him; and (3) improperly commented on the evidence presented at trial. We have jurisdiction over this appeal pursuant to 28 U.S.C. §…

dissenting:

I

I strongly disagree with the majority’s holding that evidence critical to Spencer’s defense was properly excluded. To justify its decision the majority cites the district court’s statement that admitting the disputed evidence might have “wasted time” and “confused the jury”. See Opinion at 745 n. 1. Such conclusory statements are all-too-frequently a substitute for a failure to analyze the underlying facts or legal issues. That is without question the case here. The majority does not attempt to explain the basis for either of the conclusions it endorses; nor could it. At most, approximately one to two minutes would have been “wasted” by the introduction of the excluded police report— evidence that strongly supported Spencer’s defense and that was uniquely persuasive. 1 The only “confusion” that could have been engendered by consideration of the police report would have been the juror’s justifiable uncertainty regarding Spencer’s guilt or innocence. True, the trial would have taken much less time — and jury deliberations would have been substantially simplified — if the trial judge had simply excluded any evidence that tended to support the conclusion that the…

1 F.3d 742 37 Fed. R. Evid. Serv. 336 UNITED STATES of America, Plaintiff-Appellee, v. John Edward SPENCER, Defendant-Appellant. No. 91-10051. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 4, 1991. Decided Dec. 16, 1992. As Amended on Denial of Rehearing and Rehearing En Banc July 7, 1993. Bram L. Jacobson, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant. Ann E. Birmingham, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: POOLE, REINHARDT and FERNANDEZ, Circuit Judges. ORDER 1 The opinion filed December 16, 1992, slip op. 14547, and appearing at 981 F.2d 1083 (9th Cir.1992) is amended as follows: 2 With these amendments, the panel has voted unanimously to deny the petition for rehearing. 3 The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35. 4 The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED. OPINION POOLE, Circuit Judge: 5 John Edward Spencer appeals his conviction for being a convicted…