United States v. Matthews

226 F.3d 1075, 2000 WL 1289763
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 14, 2000
DocketNo. 98-10499
StatusPublished
Cited by9 cases

This text of 226 F.3d 1075 (United States v. Matthews) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Matthews, 226 F.3d 1075, 2000 WL 1289763 (9th Cir. 2000).

Opinions

Opinion by Judge B. FLETCHER; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN

B. FLETCHER, Circuit Judge:

James Earl Matthews was indicted and tried on three counts of being a felon in possession of a firearm and two counts of unlawful possession of stolen firearms. After a jury trial, he was acquitted of the latter two charges, and the district judge dismissed two of the three felon in possession of a firearm counts as multiplicitous. The Presentence Investigative Report (“PSI”) recommended that Matthews be sentenced for the remaining gun possession conviction as an Armed Career Criminal (“ACC”) under the United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.4(b)(3)(B) (1997). Despite an objection by his counsel that Matthews’s prior burglary and attempted burglary convictions were not qualifying crimes, Matthews was sentenced as an ACC to 280 months in prison. He appeals both his underlying conviction and his sentence.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm the district court on all of the claims challenging the underlying conviction. We reverse on the sentencing issue and remand for resentencing on the existing record.

I.

This case arises out of a transaction between James Earl Matthews and a paid informant for the Bureau of Alcohol, Tobacco and Firearms (“ATF”) named Chris Davis. Davis testified at trial that he received a call from Matthews in late January 1998, telling him that he had some firearms for sale. In response to this contact, Davis called the agent with whom he worked at the ATF, Agent Darren Gil, who expressed interest in setting up a controlled purchase of the weapons. Davis [1078]*1078and Matthews then engaged in a number of phone calls and held two in-person meetings in furtherance of the firearms sale, with Davis telling Matthews he would find a buyer for the weapons.

On January 25, 1998, Davis met Matthews at an E-Z-8 Motel in Las Vegas, Nevada. Although Davis could not identify the room number at trial, he testified that he accompanied Matthews to the room and was shown “some TVs, VCRs, [a] 9 millimeter [pistol] and a .380 [semiautomatic firearm], some cameras, watches.” Matthews also told Davis he had an assault rifle for sale. Davis purchased two TVs at the motel room in order to “show him that [he] was interested,” and explained that he would contact Matthews regarding the guns.

Two days later, on January 27, Davis engaged in a telephone conversation with Matthews, which was recorded by Agent Gil. During the call, Davis asked what kind of weapons Matthews had available and how much they would cost. On January 28, Davis told Matthews that he had located a buyer for the weapons. When Matthews responded that he was going to drop the guns off at Davis’ house, Davis tried to stall him for time, since Agent Gil had not yet arranged for their reception. On January 29, Matthews called Davis and explained that he was on his way to Davis’ house with the firearms. This call was not recorded, since Matthews had placed the call and Davis did not have recording equipment at his home. Later that evening, Matthews arrived at Davis’ house with a number of weapons. Two of Davis’ friends, Scott Brynski and Mark Farring-ton, were present when Matthews arrived. Both had been told about the purpose of Matthews’s visit, and Farrington was introduced to Matthews. Matthews gave Davis three guns wrapped in a blanket; Davis testified that he saw the barrel of a rifle protruding from the blanket and took the whole bundle into his house, where he stored the weapons for pickup by Agent Gil. At trial, Davis identified a Llama .380 semiautomatic pistol, a 9 millimeter pistol, and a Thompson submachine gun as the guns that Matthews brought to his house. Although Davis did not identify the weapons by serial number, he was able to describe the type and condition of the firearms when they arrived at his house. All of the firearms were admitted into evidence without objection. Sometime after Matthews left, Davis paged Agent Gil to explain what had happened.

Agent Gil testified that he took the firearms from Davis on January 30, 1998. He affixed evidence tags to them, placed them in an envelope, and took them back to the ATF Field Office in Las Vegas for fingerprint testing. On February 2, 1998, Agent Gil met with Matthews at a time arranged by Davis. The meeting, which took place at a restaurant, was monitored by both a recording and a transmitting device. After Agent Gil paid him for the firearms with marked bills, Matthews left the restaurant and was arrested by ATF agents.

Matthews was indicted for being a felon in possession of firearms: count one of the superseding indictment charged him with possession of a Llama .380 semiautomatic pistol, count two charged him with possession of a 9 millimeter pistol, and count three charged ■ him with possession of a Thompson submachine gun. Matthews was also charged with two counts of possession of stolen firearms: count four of the indictment was for the Llama .380, and count five was for the Thompson subma-chine gun. Matthews objected to the indictment, arguing that the three counts for felony possession of firearms were multi-plicitous. The district court allowed the Government to pursue all five counts at trial.

During closing argument, the defense pointed out that the two individuals, Bryn-ski and Farrington, named by Davis as having been at his home when Matthews delivered the firearms, were not called as witnesses for the Government. Defense counsel also targeted the testimony of the Government’s fingerprint expert, Darrell Klasey. Klasey had explained on direct examination that fingerprints are recover[1079]*1079able from weapons in only 10 to 11 percent of the cases he investigates, thus indicating that the lack of fingerprints on the guns Matthews was charged with possessing was not significant. To refute this implication, the defense urged the jury in closing to “worry about that,” asking rhetorically why no prints were left if Matthews was a gun dealer. The Government responded in rebuttal, characterizing defense counsel’s argument as:

[An ojctopus squirting ink. A retired prosecutor-1 know likes to call this kind of an argument an octopus squirting ink. They’re trying to get away, so they gotta hide what they’re doing, they gotta hide all the facts, cloud the facts, throw up all kinds of dirt, squirt the ink.

Regarding the Government’s failure to call the eyewitnesses from Davis’ home the night of the weapons delivery, Government counsel made the following statement in rebuttal:

[Y]ou heard Mr. Davis’s testimony. Mr. Farrington, as soon as Mr. Matthews or the car drove up, got out and walked out the back door. He didn’t see anything. He wasn’t in position to see anything. Why didn’t we call Mr. Bren-ski [sic]? Maybe that’s my fault. We could have called him to the stand, could have put him up there and he would have said probably the same thing that Mr. Davis said.

Finally, in response to the defense’s discussion of the fingerprint expert, the Government stated:

Why did we call a fingerprint examiner to prove what we. don’t have? Why did we call a fingerprint examiner? Because you have to battle human experience. Everybody has watched T.V., everybody has watched movies.

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Bluebook (online)
226 F.3d 1075, 2000 WL 1289763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-matthews-ca9-2000.