United States v. Robert Blunt

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 2013
• Docket: 12-30097
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 30 2013

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-30097

Plaintiff - Appellee, D.C. No. 2:10-cr-00134-EFS-1

v. MEMORANDUM* ROBERT ELLIS BLUNT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding

Argued and Submitted March 8, 2013 Seattle, Washington

Before: EBEL,** W. FLETCHER, and RAWLINSON, Circuit Judges.

Defendant-Appellant Robert Ellis Blunt appeals his conviction for

being a felon in possession of firearms and ammunition, in violation of 18

U.S.C. § 922(g)(1).

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable David M. Ebel, Senior Circuit Judge for the Tenth Circuit, sitting by designation. I.

The district court properly denied Blunt’s motion to suppress the

firearms evidence discovered in the trunk of Kevin Wennig’s vehicle.

As a threshold matter, whether police unlawfully impounded the

vehicle under Washington law is irrelevant; officers twice obtained

ownerSoperator Wennig’s consent to search the vehicle: once before

searching the car’s passenger compartment, and again before searching the

vehicle’s locked trunk. See Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973) (“[A] search conducted pursuant to a valid consent is

constitutionally permissible.”).

Blunt also has standing problems. At best, as a passenger without a

possessory interest in Wennig’s vehicle, Blunt can challenge only the

search of his sealed “Boeing” bag that officers discovered in the trunk of

Wennig’s car. See Rakas v. Illinois, 439 U.S. 128, 148-49 (1978) (“[T]he

trunk of an automobile” is an area “in which a passenger qua passenger

simply would not normally have a legitimate expectation of privacy.”).

To that end, even assuming Wennig’s consent to the trunk search did

not independently justify the search of Blunt’s “Boeing” bag, officers had

developed probable cause to search the vehicle by the time they discovered

the “Boeing” bag. Thus, “it [was] reasonable for [them] . . . to examine

2 [the bag] without a showing of individualized probable cause” to search

that item in particular. Wyoming v. Houghton, 526 U.S. 295, 302 (1999);

accord United States v. Ross, 456 U.S. 798, 825 (1982). Specifically, when

officers opened the car’s trunk, they found several rifles wrapped in a red

blanket and a scale bearing indicia of drug residue before locating Blunt’s

“Boeing” bag. Thus, by the time officers located the “Boeing” bag, they

had probable cause to believe they might find narcotics or weapons inside

the vehicle, and so the warrantless search of that bag was justified. See

Houghton, 526 U.S. at 302.

II.

Any possible error in the district court’s refusal to provide a

cautionary instruction on witness immunity was harmless.

The failure to provide such an instruction can be reversible error if

the “[witness’s] testimony is ‘important’ to the case, i.e., the defendant’s

guilt rested almost entirely on the testimony of the [witness] and the other

evidence linking the defendant to the criminal activity is weak.” Guam v.

Dela Rosa, 644 F.2d 1257, 1260 (9th Cir. 1980).

In this case, however, Wennig’s testimony did not “suppl[y] the only

strong evidence of [Blunt’s] guilt,” see United States v. Patterson, 648 F.2d

625, 631 (9th Cir. 1981). For example, Blunt inculpated himself when he

3 admitted that the “Boeing” bag, in which police discovered ammunition and

a sidearm, belonged to him; it seems unlikely that the jury would have

credited Blunt’s story that someone else must have placed those items into

the bag while Blunt wasn’t watching.

Additionally, fellow passenger Cindy Donohoo testified that as she

and Wennig loaded the car before departing to retrieve Blunt, she observed

several items in the trunk—including the red blanket in which police later

discovered the rifles—but she did not observe weapons. When the pair

arrived at Blunt’s residence, Donohoo saw Blunt approach the car carrying

something heavy. Donohoo then heard the trunk open, after which she

heard Blunt and Wennig rearranging its contents in order to get it to close.

Donohoo’s testimony strongly suggests that all of the firearms that police

discovered in Wennig’s trunk emanated from Blunt’s residence.

Wennig’s uncle, Danial Tapia, also testified that during a phone

conversation with Wennig sometime before the Spokane trip, Wennig

handed the phone to a “Robert,” who asked whether Tapia would like to

purchase a hunting rifle. Tapia recalled that the day before the Spokane

trip, Wennig again called him about purchasing a rifle. Sergeant Michael

Kittilstved testified that several calls were made from Blunt’s phone to

Tapia’s phone the morning of the stop. This testimony all suggests that

4 Blunt and Wennig jointly possessed the weapons in a plot to sell them.

Finally, we find it implausible that the jury’s guilty verdict “rested

almost entirely on [Wennig’s] testimony,” see Dela Rosa, 644 F.2d at 1260,

because Wennig was not a credible witness: Wennig’s largely self-serving

story was extensively discredited, both by other witnesses and during his

own cross examination, a fact which the government acknowledged in its

closing argument. Additionally, the jury had reason to distrust Wennig

because it learned of an alleged immunity deal he received in exchange for

his cooperation. 2 On the other hand, the jury had relatively little reason to

discredit Donohoo’s testimony, which included candid details about her

own drug use and implicated both Blunt and her cousin, Wennig, in the

crime.

AFFIRMED.

2 We reserve judgment on whether, as Blunt argues, it was error for the district court not to provide Blunt’s proffered jury instruction on the credibility of an immunized witness; as this discussion illustrates, any such error would have been harmless in this case. We raise the point only to note that where, as here, the jury was made aware of the agreement through testimony, such evidence would have further undermined Wennig’s credibility.

5 FILED U.S. v. Blunt, No. 12-30097 JUL 30 2013 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I concur in the result.