857 F. 2d 1479 - United States v. G Ketchens

No. 87-5253.

United States Court of Appeals, Ninth Circuit.

Before CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges, and ROGER G. STRAND, District Judge.**

MEMORANDUM***

Defendant-appellant Damon G. Ketchens appeals his convictions following a jury trial for conspiracy to distribute a controlled substance in violation of 21 U.S.C. Sec. 846, and possession with intent to distribute a controlled substance in violation of 21 U.S.C. Sec. 841(a)(1).1

* Ketchens first claims that there is insufficient evidence to support the jury's conclusion that he conspired to distribute cocaine with "persons unknown." We will uphold a conviction "if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Penagos, 823 F.2d 346, 347 (9th Cir.1987). "All reasonable inferences must be drawn in favor of the government, and circumstantial evidence is sufficient to sustain a conviction." United States v. Foster, 711 F.2d 871, 875 (9th Cir.1983), cert. denied, 465 U.S. 1103 (1984).

We hold that the government produced sufficient evidence that would enable a jury to determine beyond a reasonable doubt that Ketchens conspired with "persons unknown." The jury rationally could have determined that Ketchens conspired with his purported roommate, Thomas Kennedy, because of Kennedy's proximity to Ketchens and the cocaine. Ketchens introduced a telephone bill addressed to Kennedy at Ketchens' address and a wallet found at Ketchens' apartment containing Thomas Kennedy's identification. Ketchens introduced this evidence to show that the cocaine belonged to Kennedy, not Ketchens. Ketchens even relied on this theory in his closing argument to the jury. On appeal, Ketchens now contends that Kennedy was an alias of Ketchens, that Kennedy never existed, and therefore the government has not shown sufficient evidence that Ketchens conspired with "persons unknown." We disagree.

Ketchens next contends that the district court erred in admitting into evidence drug transaction ledgers found in Ketchens' apartment. Specifically, Ketchens contends only that the ledgers were evidence of "other crimes, wrongs or acts" that should not have been admitted under Fed.R.Evid. 404(b) because of the danger of unfair prejudice. See United States v. Alfonso, 759 F.2d 728, 739 & n. 7 (9th Cir.1985) (admission of evidence under Rule 404(b) requires court to balance probative value and danger of unfair prejudice). The district court admitted the ledgers as proof of motive, intent and absence of mistake. Fed.R.Evid. 404(b). We review a district court's decision to admit evidence under Rule 404(b) for an abuse of discretion. United States v. Feldman, 788 F.2d 544, 557 (9th Cir.1986) (court has wide discretion), cert. denied, 107 S.Ct. 955 (1987).

Ketchens' contention is without merit. The district court did not expressly state that the probative value of the ledgers was not substantially outweighed by the danger of unfair prejudice. Nonetheless, the court performed the necessary balancing. The record shows that the court was aware of the rule's requirements, and defense counsel argued the question of potential unfair prejudice in a pretrial hearing. In sum, the record reflects that the court adequately weighed the probative value and potential prejudice of the proffered evidence before admitting it. See United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir.1978). Accordingly, the district court did not abuse its discretion.

Finally, Ketchens asserts that the district court should have suppressed the ledgers because the search warrant was not supported by probable cause and the executing officers did not act in good faith. Determinations of probable cause must be upheld if the issuing magistrate had a "substantial basis" for concluding that a search would uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. Michaelian, 803 F.2d 1042, 1044 (9th Cir.1986).

Based on the "totality of the circumstances," Gates, 462 U.S. at 236, we cannot say that the magistrate lacked a substantial basis on which to conclude that probable cause existed to search Ketchens' apartment. The affidavit was dated only five days after the officers confronted Hickman and Cartwright. In addition, the affiant stated, based on his past experience with drug traffickers, that the search of Ketchens' apartment would provide evidence connected to the particular drug transaction under investigation. "[A] magistrate may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found." United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir.1987). Therefore, we reject Ketchens' argument that the affidavit did not provide a substantial basis from which to conclude that probable cause existed to search his apartment.

Because we hold that the warrant was based on probable cause, we do not reach the question whether the search was valid under the "good faith" exception to the exclusionary rule.

AFFIRMED.