J. BLAINE ANDERSON, Circuit Judge:
ORDER
A majority of the panel in the above case has voted to deny the petition for rehearing and to reject the en banc suggestion. Judge Poole would grant rehearing and accept the en banc suggestion.
The opinion and dissent filed herein on April 14, 1983 are withdrawn and the attached Opinion on Denial of Petition for Rehearing and the Dissent are substituted therefor.
The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R.App.P. 35(b).
The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.
OPINION ON DENIAL OF PETITION FOR REHEARING
Rubio appeals his conviction of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). 18 U.S.C. §§ 1961-68. Elledge, Smith, Palomar, Pas-saro, and Stefanson appeal their convictions of various firearms and narcotics violations. The six cases were consolidated for trial and appeal.
The essential facts are not in dispute. On June 13, 1979, a grand jury returned a three-count indictment charging some thirty-three defendants with various violations of the RICO statute. All six defendants in the present case were charged with Count I of conspiring to participate in the conduct of the affairs of the Hell’s Angels Motorcycle Club (hereinafter “Club”), an enterprise, through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). Count II charged Elledge, Passaro, Rubio, and Smith with having actually participated in the conduct of the affairs of the Club through a pattern of racketeering activity as proscribed by 18 U.S.C. § 1962(c). Count III charged Rubio and Passaro with having conspired to use or invest a part of the income or proceeds of income derived from a pattern of racketeering activity in the operation of the San Rafael Auto Body & Repair Shop, an enterprise, in violation of 18 U.S.C. § 1962(d) and (a).
On the evening of June 13, 1979, a task force of FBI, ATF, and DEA agents executed a carefully prepared plan for the arrest of all unincarcerated defendants named in the indictment and for the search of the residences of all the indicted defendants. The arrests and searches were executed pursuant to three warrants issued earlier that day by a federal magistrate. Where relevant, Prescott1 search warrants and arrest warrants were issued. The other search warrants, hereinafter referred to as “indicia warrants,” authorized the search for, and seizure of, “indicia of membership in or association with the Hell’s Angels.” A separate, but similar, affidavit was submitted in support of each indicia warrant.
In addition to evidence of membership or association, the execution of the indicia warrants resulted in the seizure of substantial amounts of evidence of criminal activity not covered by the indictment. Those sei[791]*791zures were purportedly made in reliance on the plain view doctrine. On July 25,1979, a superseding indictment was filed charging additional criminal violations supported by the evidence so discovered. With the exception of Rubio, all defendants were convicted only on charges added by the superseding indictment. Rubio was convicted under the original indictment of conspiracy to invest funds derived from a pattern of racketeering activity in an enterprise, the San Rafael Auto Body & Repair Shop. Thus, while the justification for the indicia warrants rested upon the RICO charges in Counts I and II of the original indictment, the warrants’ execution supplied the evidence to support the convictions of all defendants, except Rubio, on different charges. Similarly, though Rubio was convicted on a charge for which he was initially indicted, much of the evidence introduced on that charge was obtained through the indicia warrant.
All defendants except Smith join in the argument that evidence obtained in execution of the indicia warrants should have been suppressed because the warrants were invalid. Because we hold the warrants lacked probable cause,2 we reverse the convictions of Rubio, Elledge, Palomar, Passaro, and Stefanson. We remand those cases to the trial court for possible reprosecution, however, because we are not advised whether sufficient evidence to support the convictions may exist apart from the tainted evidence. Because the Smith search was performed pursuant to a valid consent, we affirm Smith’s conviction.
1. Freedom of Association
Defendants initially contend that the search warrants, drawn as they were to authorize the search and seizure of “indicia of membership in or association with the Hell’s Angels Motorcycle Club,” were facially invalid as violative of the Club members’ First Amendment guarantee of free association. The thrust of defendants’ argument is that by authorizing the search for items containing the identities of Hell’s Angels associates other than those indicted, the warrants violated the right to “privacy in one’s associations” recognized in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960).
We agree with defendants that the First Amendment protects their right to associate with one another and with the Hell’s Angels Motorcycle Club. We strongly disagree with any inference that criminal investigation is somehow prohibited when it interferes with such First Amendment interests. When activity protected by the First Amendment becomes the subject of a criminal investigation, the protections afforded by the Fourth Amendment come into play. As the Supreme Court said in upholding the search of a newspaper office in Zurcher v. Stanford Daily, 436 U.S. 547, 565, 98 S.Ct. 1970, 1981, 56 L.Ed.2d 525, 541-42 (1978):
“the ... cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search .... Properly administered, the preconditions for a warrant — probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness — should afford sufficient protection against the harms that are as-sertedly threatened .... ”
Similar principles come into play in conspiracy cases, where agreement between the alleged conspirators must be proved. This court has held that items whose content is protected by the First Amendment may nevertheless be the proper subject of a search when those items tend to prove conspirators’ associations with each other. United States v. Giese, 597 F.2d 1170, 1187 (9th Cir.) (on denial of rehearing en banc), [792]*792cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979).
Under 18 U.S.C. § 1962(c), Congress has made association with an enterprise one element of the RICO offense. See United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246, 254 (1981). That element has withstood the attack that it unconstitutionally punishes associational status, the courts recognizing that RICO’s “proscriptions are directed against conduct, not status.” United States v. Martino, 648 F.2d 367, 380 (5th Cir.1981), cert. denied, 456 U.S. 943, 949, 102 S.Ct. 2006, 2007, 2020, 72 L.Ed.2d 465, 474 (1982) (quoting United States v. Elliott, 571 F.2d 880, 903 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978)). Ofttimes, evidence of the associational element of RICO can be obtained only through a search of the suspect’s property. It would be anomalous indeed if the associational element of RICO were to remain forever unsatisfied on the basis that an otherwise constitutional search warrant could never issue because it would violate the RICO suspect’s First Amendment right to free association.
We recognize the potential for abuse that these indicia warrants can present. In this portion of the opinion, we conclude only that a narrowly drawn, and properly issued and executed warrant which authorizes the search for indicia of membership or association with a particular enterprise, does not violate the RICO suspect’s right to freedom of association.
II. Probable Cause
Defendants challenge the issuance of the warrants as lacking probable cause. Specifically, defendants contend the warrants lack probable cause because no nexus was established between the indicia of association seized and the alleged criminal activity. We agree.
Certain classes of evidence — fruits and instrumentalities of crime, and contraband — have always been constitutionally subject to seizure if they were sufficiently described in a search warrant issued with probable cause. Prior to 1967, however, a doctrine known as the “mere evidence” rule prevented the seizure of items whose sole interest to the government was their introduction at trial to prove the government’s ease. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). The Supreme Court overturned the mere evidence rule in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). In Warden, police officers seized clothing belonging to an armed robbery suspect from a washing machine in the suspect’s home. The clothing was introduced at trial and the defendant was convicted based on an eyewitness identification of each item. The Supreme Court held that although the clothing was mere evidence according to the traditional Gouled standard, its seizure was constitutional.
The Warden Court noted that Gouled had been based largely on common law property notions rather than on the Fourth Amendment’s guarantee of privacy. “We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.” Id. at 304, 87 S.Ct. at 1648, 18 L.Ed.2d at 790. The Court then reasoned that “[t]he requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for ‘mere evidence’ or for fruits, instrumentalities or contraband.” Id. at 306-07, 87 S.Ct. at 1649-50, 18 L.Ed.2d at 792.
In order to effectuate the Fourth Amendment’s privacy guarantee, the Warden Court required that “[t]here must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus, in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.” Id. After Warden, the Federal Rules of Criminal Procedure were modified to authorize the issuance of a warrant to search for items of solely evidential value. Fed.R.Crim.P. [793]*79341(b). See also 18 U.S.C. § 3103a (a warrant may be issued to search for and seize any property that constitutes evidence of a criminal offense).
In the present case, virtually all of the items described in the search warrants were “mere evidence.” Therefore, in addition to examining the warrants for probable cause to believe the evidence sought would be found in the places described in the warrants, see United States v. Flores, 679 F.2d 173, 175 (9th Cir.1982), we must also examine the warrants for probable cause to believe there was a connection between the evidence sought and a violation of the RICO statute.
When the government suspects criminal activity, the nature of which is a RICO violation, any evidence relevant to prove any element of the RICO offense is potentially seizable. The search warrants in the present case were tailored around the elements of 18 U.S.C. § 1962(c), under which it is unlawful “for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” Under § 1962(e), evidence of association would be subject to seizure, as would evidence of the existence of the enterprise and evidence of the pattern of racketeering activity. However, none of this evidence would be seizable under the Fourth Amendment except upon a showing of probable cause to believe it was somehow connected to criminal activity.
The trial judge concluded that because indicia of association would aid in a conviction under the RICO counts, a nexus existed between the items sought and the alleged criminal activity. Our standard of review over probable cause is currently a subject of major dispute. Recent decisions of this court would indicate that although we must pay substantial deference to the magistrate’s determination, the ultimate issue of whether probable cause exists is a question of law over which we exercise de novo review. United States v. Chesher, 678 F.2d 1353, 1359 (9th Cir.1982). In its last term, however, the Supreme Court announced that, at least in the context of reviewing probable cause based on an anonymous informant’s tip, “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Illinois v. Gates, -- U.S. --, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). The Supreme Court in Gates applied a standard that would consider simply whether the magistrate had “a substantial basis” for his probable cause determination. -- U.S. at --, 103 S.Ct. at 2332, 76 L.Ed.2d at 548-49. The case of United States v. McConney, No. 80-1012, is currently before this court en banc considering the issue. For purposes of this case, however, we are constrained to disagree with the trial court regardless of which standard applies.
If such a large portion of the subject organization’s activities are illegitimate so that the enterprise could be considered, in effect, wholly illegitimate, then there would certainly be cause to believe that evidence of a suspect’s association with that enterprise would aid in a RICO conviction. However, where there is no allegation that the enterprise is wholly illegitimate, as is true in this case, evidence of mere association would not necessarily aid in obtaining a conviction. Something more must be demonstrated; otherwise, the Fourth Amendment would offer little protection for those who are innocently associated with a legitimate enterprise, the affairs of which are being conducted by others through a pattern of racketeering activity. In this regard, we concur in the assessment of the Second Circuit in United States v. Scotto, 641 F.2d 47, 54 (2d Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981), that “simply committing predicate acts which are unrelated to the enterprise or one’s position within it would be insufficient” to establish a violation of § 1962(c). See also United States v. Brooklier, 685 F.2d 1208, 1216 (9th Cir.1982) (“The essence of a RICO conspiracy is not an agreement [794]*794to commit racketeering acts, but an agreement to conduct or participate in the affairs of an enterprise through a pattern of racketeering.”), cert. denied, -- U.S. --, 103 S.Ct. 1194, 1195, 75 L.Ed.2d 439 (1983). Similarly, probable cause to believe a suspect was associated with a particular enterprise would be insufficient, of itself, to support a warrant for the seizure of indicia of association. Accordingly, we hold that in the absence of a showing that such a large portion of the RICO enterprise’s activities are illegitimate so that the entire enterprise, in effect, becomes wholly illegitimate, the affidavit in support of a search warrant authorizing the seizure of indicia of membership or association must also provide probable cause to believe that the subject has conducted the affairs of the enterprise, at least in part, through a pattern of racketeering activity. We believe a contrary rule could lead to the seizure of “mere evidence” from any suspected member or associate of any enterprise with no nexus whatever between that evidence and criminal activity. Such a rule would offend the principle of Warden v. Hayden.
Examining the search warrants and their supporting affidavits in the present case, we must conclude that the warrants were issued without probable cause. All five affidavits are identical through paragraph 23, and contain voluminous detail about the indicia customarily kept by members and associates of the Hell’s Angels Motorcycle Club. The remaining paragraphs state facts varying with each defendant, tending to establish that the defendant is a member or associate of the Club, and that the indicia of membership previously described would be found at the defendant’s residence. Finally, each affidavit contains a paragraph stating that a federal grand jury has returned an indictment which charges the named defendant with associating with a RICO enterprise — the Hell’s Angel Motorcycle Club — for a specified period of time.
None of the affidavits contain a statement of probable cause to believe that any defendant had conducted the affairs of the Club through a pattern of racketeering activity, nor do the affidavits contain facts tending to support such a statement. The facts in the affidavits are limited to the establishment of association with the enterprise. These facts are insufficient to provide the requisite nexus between the association of the defendants with the enterprise and some form of criminal activity.
Moreover, the affidavits’ recitation of the RICO indictment is insufficient to establish probable cause. The warrants before us are substantially identical to those reviewed by this court in United States v. Chesher, 678 F.2d 1353 (9th Cir.1982). The search conducted in Chesher arose out of the same indictment involved in the present case and was a part of the same overall search and arrest plan executed by federal officers on June 13, 1979. In Chesher, we reviewed the affidavit and warrant for evidence of current membership or association with the Hell’s Angels Motorcycle Club, and found that the RICO indictment provided none. Here, we review the affidavit and warrant for evidence of a nexus between criminal activity and association with the Club. Again, we find no such evidence in the affidavit’s mere recitation of the indictment.
The function of the grand jury is to determine whether there is sufficient probable cause to require an accused to stand trial before a petit jury. United States v. Ellsworth, 647 F.2d at 957, 964 (9th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2008, 72 L.Ed.2d 465 (1982). Because that determination is so similar to the elements of probable cause for an arrest, an indictment “ ‘fair upon its face,’ and returned by a ‘properly constituted grand jury’ conclusively determines the existence of probable cause and requires issuance of an arrest warrant without further inquiry.” Gerstein v. Pugh, 420 U.S. 103, 117, 95 S.Ct. 854, 865 n. 19, 43 L.Ed.2d 54, 67 n. 19 (1975) (citing Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 131, 77 L.Ed. 283, 287 (1932)). The same cannot be said for a search warrant. The Fourth Amendment requires that warrants may issue only upon [795]*795a determination of probable cause by a “neutral and detached magistrate.” Steagald v. United States, 451 U.S. 204, 212, 101 S.Ct. 1642, 1647-48, 68 L.Ed.2d 38, 46 (1981). The magistrate must be provided with sufficient facts from which he may draw the inferences and form the conclusions necessary to a determination of probable cause. Giordenello v. United States, 357 U.S. 480, 485-86, 78 S.Ct. 1245, 1249-50, 2 L.Ed.2d 1503, 1509 (1958). The facts upon which the magistrate bases his probable cause determination must appear within the four corners of the warrant affidavit; the warrant cannot be supported by outside information. United States v. Martinez, 588 F.2d 1227, 1234 (9th Cir.1978); United States v. Anderson, 453 F.2d 174 (9th Cir.1971). For these reasons, this court held in Ellsworth that an indictment alone cannot supply probable cause to search. Ellsworth, 647 F.2d at 964 (“A Grand Jury is not a court, and its spectrum of responsibility does not include the duty of determining probable cause or lack thereof to search, nor the making of a decision as to whether the search warrant should issue.”).
Although Ellsworth allows the indictment to be considered along with other facts by a magistrate in determining probable cause, it is not, of itself, an adequate substitute for articulable facts in the warrant affidavit. As the Supreme Court reaffirmed in Illinois v. Gates, “[sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” -- U.S. at --, 103 S.Ct. at 2332, 76 L.Ed.2d at 549. The warrant affidavit’s mere recitation of the indictment is precisely that — the conclusion of another body, and a body whose function differs substantially from the magistrate’s constitutional duty to assess probable cause. See United States v. DeFalco, 509 F.Supp. 127, 137-39 (S.D.Fla.1981) (observing that the grand jury’s investigative role detracts from its neutrality). As we said in Chesher, if the government has evidence of criminal activity to present to the grand jury, there is nothing to prevent it from disclosing such evidence to the magistrate so that he can exercise independent judgment. United States v. Chesher, 678 F.2d at 1363 n. 9.
In the present case, the magistrate had no substantial basis for concluding that probable cause existed. As we discussed earlier, but for its reference to the indictment the affidavit furnished no basis whatsoever for believing the defendants had conducted the affairs of the Club through a pattern of racketeering activity. Thus, as contrasted to the affidavit in Ellsworth,3 the magistrate’s determination that probable cause existed was necessarily based on the indictment alone. Under Ellsworth, that is an impermissible basis.
The government argues that it alleged and had substantial proof that the Club was used as a vehicle to facilitate the conduct of racketeering activity. We search the affidavits and the record in vain, however, for any such proof. The record is replete with instances of individual criminal behavior by members and associates of the Club, but we find no connection between such individual activity and the conduct of the affairs of the enterprise as a whole. Because of the innocuous nature of the evidence seized (clothing, documents, photographs, etc.), the privacy interests that stand as the foundation of the Fourth Amendment are highly vulnerable here. The only protection for those interests when seizure of this type of evidence is sought is probable cause to support the search. After careful scrutiny of the affidavits supporting these indicia warrants, we conclude the probable cause requirement has not been satisfied. Accordingly, the evidence should have been suppressed.
III. Smith Issues
Although Smith was named in the original June 13, 1979 RICO indictment, he was [796]*796not a subject of the massive search and arrest plan described above because he had been previously arrested on state charges. Evidence seized concurrently with that arrest furnished the basis for Counts XVII and XVIII of the superseding federal indictment. Smith appeals from a conviction under 18 U.S.C. app. § 1202(a)(1) (unlawful possession of firearm by convicted felon), with which he was charged under Count XVIII of the superseding indictment.
On April 6, 1979, a group of local, state, and federal officers, armed with a valid arrest warrant but no search warrant, went to Smith’s reported address at 2717-77th Avenue, Oakland, California. At that address, the officers found two buildings a few yards apart on the same lot surrounded by a fence and sharing a common driveway. Only the front building bore address numbers.
When Smith could not be found in the front building, the officers proceeded to the building in back and knocked on the door. A known member of the Hell’s Angels, Raymond Baker, answered, holding a gun cleaning rod in his hand. When the officer sought entrance to search for Smith, Baker replied, “Okay, but I only want one of you to come inside.” A federal agent replied that the condition was “unacceptable,” after which Baker unlocked the door and permitted the agents to enter, saying, “Don’t get excited, I am cleaning my guns.” The rear building later turned out to be a separate residence owned by Baker.4
Smith was found in a back bedroom and was arrested. The officers seized four firearms that were within Smith’s immediate reach, and eighteen other firearms found in various parts of the house during the search for Smith. Smith was convicted for possession of the four firearms found near him during the arrest.
A. Search and Seizure
Smith urges that the firearms were seized in violation of the Fourth Amendment because the officers conducted an invalid warrantless search. Specifically, Smith contends that although Baker consented to a search, the consent was qualified to the extent of allowing in only one officer, and the limits of that consent were exceeded when other officers entered.
A specific exception to the Fourth Amendment’s warrant and probable cause requirements is that a search conducted pursuant to a valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973)); United States v. Henry, 615 F.2d 1223, 1230 (9th Cir.1980). As owner and permanent resident of the house, Baker clearly had authority to consent to a search of its contents. United States v. Dubrofsky, 581 F.2d 208, 212 (9th Cir.1978).
Smith maintains, however, that Baker’s consent was merely a qualified one and that the search exceeded the scope of the consent because more than one officer entered the house. While it is clear that the government must conform' to limitations placed upon the right granted to search, Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir.1977); United States v. Griffin, 530 F.2d 739, 744 (7th Cir.1976), Smith has cited no authority, and we have found none, in which a consent was qualified by the number of officers allowed to search, as opposed to the physical bounds of the area to which the consent was granted. See, e.g., United States v. Dichiarinte, 445 F.2d 126 (7th Cir.1971) (where defendant told police they could search his house for narcotics, police could not open and examine private papers found in the house).
[797]*797We are unpersuaded that a consent search may be validly qualified by the number of officers allowed to search, and we so hold. Once consent has been obtained from one with authority to give it, any expectation of privacy has been lost. We seriously doubt that the entry of additional officers would further diminish the consenter’s expectation of privacy, and, in the instant case, any remaining expectation of privacy was outweighed by the legitimate concern for the safety of a single officer conducting a search of a house known to contain firearms. Cf. United States v. White, 617 F.2d 1131, 1134 (5th Cir.1980) (motion to suppress denied because delay in search and search by agents not named in consent form were not related to the scope of the search).
Even if the limitation on the number of officers who could search was a valid qualification, the trial court found that by allowing entry of all the officers without protest, Baker had revoked his qualification. In United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978), we held that the question of whether the scope of consent had been exceeded was a factual one, to be determined on the basis of the totality of the circumstances. Id. at 764. In this regard, the trial judge’s finding will be upheld unless it is clearly erroneous, United States v. Lemon, 550 F.2d 467, 472 (9th Cir.1977); United States v. Page, 302 F.2d 81, 85 (9th Cir.1962) (en banc), and, on this record, we do not find such error. When the officers informed Baker of their refusal to accept his condition, Baker unlocked the door and permitted them all to enter without objection. These facts support the trial judge’s conclusion that an unqualified consent to search was given.
B. Stipulation to Prior Conviction
Early in this consolidated trial, the parties stipulated to Smith’s 1977 conviction of the felony of possession for sale of methamphetamine. Approximately two months later, the government sought to introduce the testimony of a police officer concerning the events and circumstances surrounding the conviction, including the possession by Smith of a loaded firearm. The trial judge ruled the evidence admissible, concluding it was relevant to prove the RICO charges. Smith contends that the admission of such evidence was erroneous, to which the government responds that a stipulation to an accused’s prior conviction does not preclude the later admission of facts underlying the conviction.
We agree with Smith that once a matter is stipulated, it is conclusively proven. United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976); Schlemmer v. Provident Life & Accident Ins. Co., 349 F.2d 682, 684 (9th Cir.1965). It does not follow, however, that when the fact of a conviction is stipulated, the circumstances underlying the conviction are forever immune from inquiry.5
Under Fed.R.Evid. 404(b), evidence of other crimes, wrongs, or acts may be admissible to prove such elements as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Smith was charged both with conspiracy to violate and substantive violations of the RICO statute. Those charges require proof of such elements as the existence of an enterprise, the association of the defendant with the enterprise, as well as the traditional requirements of a conspiracy. In addition, proof of the predicate acts required for establishing a pattern of racketeering activity under RICO is essential. See discussion infra, part C.
The district court’s decision to admit evidence is reviewed for an abuse of discretion. United States v. Cox, 633 F.2d 871, 874 (9th Cir.1980), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981). Given the broad elements of the offenses [798]*798with which Smith was charged, we cannot say the trial judge abused his discretion in finding that the circumstances surrounding Smith’s 1977 drug conviction were relevant to prove those charges.
C. Admission of Eighteen Firearms
Smith was convicted on Count XVIII — illegal possession of firearms — based on the four guns found within his reach at the time of his arrest. Smith asserts that the prejudicial effect of the admission into evidence of eighteen other firearms found within the house outweighed the probative value of the evidence, constituting prejudicial error under Fed.R.Evid. 403. We disagree.
This court will review a trial judge’s decision regarding the admission or exclusion of evidence under Rule 403 for abuse of discretion. United States v. Watkins, 600 F.2d 201, 204 (9th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). On the record before us, we do not find such an abuse. The firearms were relevant under Rule 404(b) as proof of the predicate acts required for establishing a pattern of racketeering activity under RICO. One of those predicate acts is “dealing in narcotic or other dangerous drugs.” 18 U.S.C. § 1961(1)(A). In United States v. Martin, 599 F.2d 880, 889 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979), we held that firearms may be relevant to show an accused’s involvement in the narcotics trade.
In any event, it is more probable than not that the admission of the eighteen firearms did not materially affect the verdict. See United States v. Valle-Valdez, 554 F.2d 911 (9th Cir.1977) (adopting the more-probable-than-not standard of determining harmlessness of nonconstitutional error); Fed.R.Evid. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected”); Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”). The firearms were admitted as evidence on the RICO counts, yet Smith was not convicted on those counts. We conclude that the prejudice resulting from the admission of this evidence, if any, was minimal.
D. Reinstatement of Previously Dismissed Indictment
On August 7, 1980, after the jury had returned a guilty verdict on the gun possession count against Smith and a mistrial was declared as to the other three counts, the government moved “for leave to dismiss the indictment.” The district court granted the motion, dismissing all four counts. Three days later, the government, upon realizing that all four counts had been dismissed, moved the court to vacate its prior order and to issue a new order dismissing all counts except the firearms count on which Smith had been convicted. The district court granted the motion and modified its order, reinstating Count XVIII.
Smith objected to sentencing on the grounds that the district court lost jurisdiction to reinstate the indictment when it dismissed all counts. The government responds that dismissal was based on an inadvertent mistake, in that its intent was to dismiss only those counts upon which a conviction had not been obtained. We hold that the district court had jurisdiction to reinstate the indictment and that it did not abuse its discretion in doing so.
We note that the Federal Rules of Criminal Procedure contain no counterpart to Fed.R.Civ.P. 60(b), which provides for relief from final judgments, orders, and other proceedings for, among other reasons, “mistake, inadvertence, surprise, or excusable neglect.” The Supreme Court, however, has recognized that “[e]very court must be presumed to exercise those powers belonging to it which are necessary for the promotion of public justice; and we do not doubt that this court possesses the power to reinstate any cause dismissed by mistake.” The Palmyra, 25 U.S. (12 Wheat.) 1, 10, 6 L.Ed. 531, 534 (1827).
Most early courts arbitrarily held the reinstatement of a mistakenly dismissed in[799]*799dictment to be a proper exercise of their inherent jurisdiction to correct errors only if it was done during the same term at which the dismissal was entered. E.g., United States v. Rossi, 39 F.2d 432, 433 (9th Cir.1930); Annot., 112 A.L.R. 386 (1938). More recently, this court has reviewed district courts’ correction of erroneous orders by treating them as responses to motions for reconsideration, which are timely presented if “filed within the original period for review.” United States v. Jones, 608 F.2d 386, 390 (9th Cir.1979) (quoting United States v. Healy, 376 U.S. 75, 78, 84 S.Ct. 553, 555, 11 L.Ed.2d 527, 531 (1964)). Accord United States v. Emens, 565 F.2d 1142, 1144-45 (9th Cir.1977).
In Emens, this court applied the foregoing principles to hold that a district court, during the time for appeal, holds jurisdiction to vacate its previous pretrial order dismissing an indictment. United States v. Emens, at 1145. Our decision in Emens is dispositive of this issue. As we said there, “the finality of the order of the District Court dismissing the indictment was stayed by the timely filing of a petition for rehearing, [and] a fortiori such order was stayed pending resolution of the petition.” Id. Although we are presented here with a post-trial dismissal and reinstatement of an indictment, we discern, on these facts,6 no basis in reason or justice for distinguishing Emens. We cannot conceive that Congress intended, by failing to provide a criminal counterpart to Fed.R.Civ.P. 60(b), to strip a court of its inherent jurisdiction to vacate or modify an order inadvertently made through mistake in a criminal proceeding. This is a matter within the trial judge’s discretion, subject only to review by this court for abuse thereof, and we are of the opinion that on the showing made before him, the trial judge properly reinstated the indictment.
E. Failure to Discharge Alternate Jurors
Smith’s final contention is that the district court erred in deciding to retain the alternate jurors after the jury retired to consider its verdict. See Fed.R.Crim.P. 24(c). Because Smith failed to preserve this issue through a timely objection below, we may review it only if it constitutes plain error. United States v. Perez, 491 F.2d 167, 173 (9th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974). We conclude that Smith has failed to establish the kind of “highly prejudicial error affecting substantial rights” required for plain error review. United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). The alternate jurors were properly sequestered in a separate hotel from the regular jurors, separate marshals were sworn and assigned to the regular and alternate jurors, and there was no contact whatever between the regular jurors and the alternates. On these facts, the trial judge’s failure to discharge the alternates under Rule 24(c), if prejudicial at all,7 was certainly not plain error.
Having concluded that none of Smith’s claims are meritorious, we AFFIRM his conviction. No. 80-1586.
[800]*800We REVERSE the convictions of Rubio, Elledge, Palomar, Passaro, and Stefanson. Nos. 80-1577, 80-1584, 80-1587, 80-1592, and 80-1631. The government will file notice with the district court within 30 days if it intends to reprosecute.
The motion of the appellee, United States of America, to stay issuance of the mandate pursuant to Rule 41(b) for a period of 30 days pending application for a writ of cer-tiorari is GRANTED.