FILED
NOT FOR PUBLICATION JUL 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30282
Plaintiff - Appellee, D.C. No. 2:08-cr-00035-BLW-1
v.
MEMORANDUM *
ROBERT EUGENE BREWSTER, AKA
Robert Brewster, AKA Ronald A.
Michalsµi, AKA Robert Eugene Brewster,
Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted July 12, 2010**
Portland, Oregon
Before: PREGERSON, WARDLAW and RAWLINSON, Circuit Judges.
Robert E. Brewster appeals his jury conviction for unlawful possession of a
firearm by a felon in violation of 18 U.S.C. yy 922(g)(1) and 924(a)(2), unlawful
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
possession of an unregistered short-barreled shotgun in violation of 26 U.S.C. yy
5841, 5861(d), 5871, and unlawful possession of a firearm by a fugitive from
justice in violation of 18 U.S.C. y 922(g)(2). Brewster claims that the district court
erroneously denied his motion to suppress evidence and his fourth motion for a
continuance of the trial, and asserts prosecutorial misconduct based on the
government's references during trial to his drug use and possession. We have
jurisdiction under 28 U.S.C. y 1291, and we affirm.
The district court did not err by denying Brewster's motion to suppress
because police officers in Idaho arrested him on the basis of a warrant for a
California state parole violation and did not obtain a warrant in Idaho, as required
by Idaho Code y 19-4513. The officers had probable cause to arrest Brewster on
the basis of the California state warrant, see Wong Sun v. United States, 371 U.S.
471, 479-80 (1963), and, therefore, the arrest met 'traditional standards of
reasonableness' despite the apparent violation of state law. United States v. Brobst,
558 F.3d 982, 989-90 (9th Cir. 2009) (citing Virginia v. Moore, 553 U.S. 164
(2008)).
Brewster argues that the district court erred in denying his fourth motion to
continue the trial, and that denial, along with restrictions set by the district court
and interference by U.S. Marshals and prison officials during his incarceration,
2
deprived him of his right to self-representation. We review a district court's denial
of a pro se defendant's motion to continue for an abuse of discretion, United States
v. Garrett, 179 F.3d 1143, 1144-45 (9th Cir. 1999), and 'find an abuse of
discretion only where the denial was 'arbitrary and unreasonable.'' United States
v. Sarno, 73 F.3d 1470, 1492 (9th Cir. 1995) (citation omitted). The district court
did not abuse its discretion by denying Brewster a continuance, United States v.
Mejia, 69 F.3d 309, 314 (9th Cir. 1995), nor did it violate Brewster's Sixth
Amendment right to self-representation. Sarno, 73 F.3d at 1491. First, the record
demonstrates that the district court ensured Brewster reasonable access to legal
research, appointed standby counsel and an investigator to assist in preparation of
his case, conducted a lengthy series of status conferences to monitor Brewster's
access to resources, and established a mechanism by which he could communicate
on an unmonitored phone line with witnesses in the prison conference room and
send and receive faxes. Brewster availed himself of these resources, filed over fifty
motions in district court, and called ten witnesses in his defense. Second, the
district court had previously granted three motions for continuance and had already
continued the case for several months. Brewster was not prejudiced because he had
less time to learn the Rules of Criminal Procedure and Evidence as a pro se
defendant. Although Brewster undoubtedly possessed less mastery of evidentiary
3
and procedural rules than a lawyer, he was appointed standby counsel, 'whose
presence is intended to steer a defendant through the basic procedures of trial.'
United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989) (internal quotation
marµs and citation omitted).
Brewster contends that the government committed prosecutorial misconduct
by repeatedly referencing evidence of drug possession, use, and possible
distribution during trial, in violation of Federal Rule of Evidence 404(b). We
disagree. The prosecutor's statements did not constitute plain error or materially
affect the verdict. United States v. Sanchez, 176 F.3d 1214, 1219, 1225 (9th Cir.
1999). Brewster himself first elicited evidence of his drug possession and possible
drug dealing while questioning his own witness, Detective Turner, and the district
court strucµ the prosecution's reference to his drug possession and use when
Brewster made the proper objection. The prosecution's reference to his prior drug
use and possession during the arrest did not maµe it 'more probable than not' that
the jury would reach a materially different verdict, Sanchez, 176 F.3d at 1225, and
the government did not argue that Brewster's drug use and possession was related
to his guilt of the offenses of conviction.
AFFIRMED.
4
FILED
U.S. v. Brewster, Case No. 09-30282 JUL 15 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur in the result.