DANIEL M. FRIEDMAN, of the United States Court of Appeals for the *

Federal Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

 

No. 96-3859

 

United States of America, *

 *

 Appellee, *

 *

 v. *

 * Appeal from the United 

Richard Beck, * States District Court

for * the Eastern

District of

 * Missouri 

Appellant. *

 

 

Submitted: May 20, 1997

 Filed: 

September 5, 1997

 

Before BEAM, FRIEDMAN , and LOKEN, Circuit Judges. *

 

FRIEDMAN, Circuit Judge.

The appellant Richard Beck challenges his conviction under 18 U.S.C. §

922(g) for a felon possessing a firearm, on the grounds that the district court

improperly (1) refused to quash a search warrant, and to suppress evidence

seized pursuant thereto, (2) permitted a non-admitted exhibit to go to the jury and

(3) admitted certain evidence. We affirm.
 The Honorable George F. Gunn, Jr., United States District Judge for the 1

Eastern District of Missouri.

2

I. 

A jury in the United States District Court for the Eastern District of Missouri

convicted Beck of one count of being a felon in possession of a firearm. The

district court sentenced him to 318 months imprisonment. 1

The indictment charged Beck with six counts of distribution of marijuana, in

violation of 18 U.S.C. § 841(a), and three counts of a felon in possession of a

firearm. The government dropped eight of the counts and went to trial only on a

single firearms count (Count IX).

At trial, the government introduced into evidence three firearms that had

been seized from Beck's home pursuant to a search warrant issued by a Missouri

state judge and proof that the three firearms had been transported in interstate or

foreign commerce. Beck stipulated to his prior felony convictions charged in

Count IX. In his appeal Beck does not challenge the sufficiency of the evidence

to establish these latter two elements of the offense.

Prior to trial, Beck filed separate motions to quash the search warrant and

to suppress the seized material. He contended that there was not probable

cause to justify the issuance of the warrant, that the warrant did not sufficiently

identify the articles to be seized, and that the officers executing the warrant

improperly seized his personal papers containing information about an unrelated

case involving him. After separate evidentiary hearings on each motion, the 
 The Honorable Mary Ann L. Medler, United States Magistrate Judge for 2

the Eastern District of Missouri.

3

magistrate judge, to whom pre-trial matters in this case had been assigned, 2

recommended that both motions be denied. She concluded that the facts "show

that there was a substantial basis for concluding that probable cause existed,"

and that "[t]here is no evidence before the court that one of the purposes of the

search was the seizure of defendant's legal papers." The district court adopted

the magistrate judge's recommendation and denied reconsideration.

II.

A. Beck contends that probable cause did not exist for the issuance of the

search warrant. The magistrate judge and the district court correctly rejected this

contention.

1. At the hearing on the motion to quash, the government presented the

testimony of Detective Farrar, a member of the Drug Enforcement Bureau of the

St. Louis County Police Department. Farrar stated that a confidential informant,

later identified as Luke Abkemeir, told him that Beck had marijuana and dilaudid

for sale. Farrar arranged a controlled purchase in which, after searching the

informant and his truck, Farrar gave him funds for the purchase, observed him

enter and leave Beck's home and then received from him marijuana he said he

had just purchased from Beck. The informant also stated that Beck had offered

to sell him a handgun. Farrar arranged at least four similar additional controlled

purchases of both firearms and marijuana, in which the informant emerged from

Beck's residence with guns and/or drugs that he stated he had just purchased

from Beck.

Farrar set forth these facts relating to the controlled purchases of drugs and 
4

firearms from Beck through the confidential informant over the preceding six

weeks in a lengthy and detailed affidavit he filed to support the statement in his

application for a search warrant that the identified premises (Beck's home) "is

being used for the purpose of secreting:

COMPONENTS FOR ILLEGAL EXPLOSIVE DEVICES, WEAPONS

MARIJUANA: A SCHEDULE I CONTROLLED SUBSTANCE

DILAUDID: A SCHEDULE II CONTROLLED SUBSTANCE

U.S. CURRENCY, DRUG PARAPHERNALIA, NOTES AND LEDGERS OF

ILLEGAL DRUG TRANSACTIONS AND DOCUMENTS RELATED

HOMICIDES"

The warrant used the identical language in specifying the subject matter of

the 

search.

In his return to the warrant, Farrar stated that the material he had seized

included marijuana, dilaudids, four handguns and "misc. papers (personal)." 

2. "The duty of the officer issuing a search warrant is to make a `practical,

common-sense decision' whether a reasonable person would have reason to

suspect that evidence would be discovered, based on the totality of the

circumstances." United States v. Peterson, 867 F.2d 1110, 1113 (8th Cir. 1989)

(quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). On appeal, the

reviewing court must determine if the issuing officer had a "substantial basis" for

concluding that probable cause existed. United States v. Jackson, 67 F.3d 1359,

1365 (8th Cir. 1995), cert. denied, 116 S. Ct. 1684 (1996). 

The affidavit on the basis of which the warrant was issued stated that

Detective Farrar had made several controlled purchases of firearms and drugs, in 
5

which the confidential informant had been searched and given money, had

entered Beck's house and had left it carrying firearms and drugs that he turned

over to Farrar and that he stated he had just purchased from Beck. Based on this

information, the Missouri state judge "would have reason to suspect" that firearms

and drugs "would be discovered" in the house in which the confidential informant

said he had made the purchases, and the judge had a "substantial basis" for

concluding that probable cause existed.

B. Beck argues that the warrant was impermissibly broad because it

authorized a search for "weapons," which he asserts could include "any item in

defendant's house which could have been used as a weapon, including kitchen

knives, baseball bats, golf clubs," etc. Because of the alleged breadth of the term

"weapons," Beck contends that the warrant did not satisfy the Fourth

Amendment's express requirement that the warrant "particularly describ[e] . . .

[the] things to be seized." U.S. Cont. amend. IV.

Whatever may be the scope of the term "weapons" in other contexts, it

plainly covered the firearms that were seized. "[T]he requirement that a search

warrant describe its objects with particularity is a standard of `practical accuracy'

rather than a hypertechnical one." United States v. Peters, 92 F.3d 768, 769-770

(8th Cir. 1996) (citation omitted). "`[T]he language must be sufficiently definite to

enable the searcher to reasonably ascertain and identify the things authorized to

be seized.'" United States v. Lowe, 50 F.3d 604, 607 (8th Cir.), cert. denied, 116

S. Ct. 260 (1995) (quoting United States v. Saunders, 957 F.2d 1488, 1491 (8th

Cir.), cert. denied, 506 U.S. 889 (1992)). Here the police officers could have had

no doubt that the warrant directed them to seize, as weapons, any firearms they

found in the premises to be searched.
6

C. Beck contends that the "participation" in the search of a federal agent

invalidated it. No federal agent was present during the search. Detective Farrar

testified at the suppression hearing, however, that he seized newspaper articles,

clippings, and other papers because some "other [FBI] agents wanted to look at

some of those particular files that [Beck] still had," and that Agent Coff "said that

he was interested and if there was any files there." Those papers were not

introduced in evidence in the present case.

Although the warrant authorized the search for and seizure of "notes and

ledgers of illegal drug transactions and documents related to homicides," these

papers do not appear to come within those categories. Beck's argument thus

really is not that the participation of federal agents invalidated the search, but that

the seizure of papers the warrant did not cover invalidated the entire search and

seizure. 

This court has held that the invalidity of part of a search warrant does not

require suppression of material seized pursuant to another and valid part of the

warrant. See United States v. Fitzgerald, 724 F.2d 633, 637 (1983) (en banc)

("[W]e hold that the infirmity of part of a warrant requires the suppression of

evidence seized pursuant to that part of the warrant . . . but does not require the

suppression of anything described in the valid portions of the warrant . . . ."), cert.

denied, 466 U.S. 950 (1984). There is no reason why this principle should not

also apply to sustain the seizure of property pursuant to a valid portion of a

search warrant even though other property may have been seized without

authorization in the warrant.

Beck makes the related argument that the police's rummaging through and 
7

seizing his private papers converted the search into a constitutionally

impermissible general search. "A flagrant disregard for the limitations of the

search warrant might make an otherwise valid search an impermissible general

search and thus require the suppression or return of all evidence seized during

the search." Marvin v. United States, 732 F.2d 669, 674-75 (8th Cir. 1984). The

seizure of Beck's personal papers, however, even if unauthorized by the warrant,

did not constitute such a "flagrant disregard" for the limitations of the warrant as

to require invalidation of the entire search.

D. Finally, Beck contends that the state police had no right to search for

weapons in his home because "[t]here is no Missouri law criminalizing the

possession of firearms . . . in any private dwelling, whether the occupant is or is

not a `convicted felon.'" Missouri law, however, does criminalize a convicted

felon's possession of a firearm. See Mo. Rev. Ann. Stat. § 571.070 (West 1995)

("A person commits the crime of unlawful possession of a concealable firearm if

he has any concealable firearm in his possession and: (1) He has . . . been

convicted of a dangerous 

felony . . . ."). 

III.

Government exhibit 10 consisted of the search warrant, the return, the

application for the warrant and the supporting affidavit. Beck contends that

although exhibit 10 was not received in evidence, the court sent it to the jury, and

that because the affidavit contained allegations that Beck was responsible for

bombings and homicides, the transmittal of this exhibit to the jury was plain error

that, because of its prejudicial effect, requires reversal of his conviction.

The record, however, does not establish the factual predicate of Beck's 
8

argument, i.e., it does not show that exhibit 10 was sent to the jury. 

After the court had instructed the jury, the following colloquy occurred:

THE COURT: I don't know as you offered your exhibits.

MR. MEHAN [the prosecutor]: I did it whenever I said -- with the admission

of my exhibits -- I would rest, but I formally do that again at this time.

THE COURT: Is there any objections to the exhibits?

MR. GAVRAS [Beck's counsel]: Well, the previous objections made, Your

Honor.

THE COURT: All right.

MR. GAVRAS: So far -- I would like to have a closer look at some of the

exhibits if I could before they're admitted. 

Also, Judge, I would like to formally, I don't know if I did or not, but -- I

believe it's B-1 was evidence that was identified by --

THE COURT: All right. Do you want to offer that?

MR. GAVRAS: I would like to offer it.

THE COURT: Any objection?

MR. MEHAN: No, Judge.

THE COURT: It will be received. Okay. We'll send the exhibits up later. 

Mrs. Kramer will take the instructions with her and the verdict form and then

we'll send up the exhibits.

(Trial tr. at 2-222-223)

The jury retired and the court stated:

The government's exhibits will be received then.

When you take those up, if you will tell the jury that we are not sending up

the guns or narcotics. Okay? Very good.
9

(Trial tr. 2-223) 

The index to that volume of the trial transcript lists 23 government exhibits

(as well as defendant's exhibits H through S and B-1) as "received" at page 223;

Exhibit 10, however, is not listed as having been received in evidence. 

Beck argues that because the court stated that "[t]he government's exhibits

will be received" and that "[w]hen you take those" the jury should be told that they

would not receive the firearms or narcotics, the court sent to the jury "All

government exhibits . . . except for `the guns' and `the narcotics.'" 

Nothing in the record supports Beck's contention that all the government's

exhibits, whether admitted or not, were sent to the jury. To the contrary, the

court's statements about sending the exhibits to the jury in the context shows that

the court was referring to the exhibits, both the government's and the defendant's,

that it had received into evidence just a moment before (together with exhibits

previously received). Nothing in the record indicates that any exhibits that had

not been received in evidence were sent to the jury. Beck himself asserts, as the

reporter's index shows, that government exhibit 10 had not been received in

evidence. The burden was on Beck to establish that exhibit 10 was sent to the

jury, and he has failed to do so.

IV.

Beck contends that the district court improperly permitted Detective Farrar

to testify about his purchases from Beck, through the confidential informant

Abkemeir that were charged in counts of the indictment that the government

dismissed before trial. He argues that this evidence constituted inadmissible

"other crimes" evidence in violation of Fed. R. Evid. 404 and hearsay in violation 
10

of Fed. R. Evid. 802. 

A. In his brief Beck states that his "entire defense was that Abkemeier (sic)

had planted the guns defendant was charged with possessing in Beck's residence

in retaliation for Beck's earlier refusal to bond him out. Thus, the case rose or fell

on Abkemeier's (sic) credibility as opposed to that of the defense witnesses." 

Beck explained his theory in his opening statement and, through crossexamination of the government's witnesses and through his own witnesses,

attempted to show that certain statements in the affidavit that Farrar said

Abkemeir had made to him, were untrue. Beck contended that the three guns

involved in count IX belonged to Abkemeir, not to him and that Abkemeir's

allegedly false statements to Farrar were relevant in deciding that question. In

rebuttal, the government called Abkemeir as a witness, who described his

firearms purchases from Beck and stated that he did not own or plant in Beck's

house the three firearms seized under the warrant.

It was Beck, and not the government, who raised the issue of Abkemeir's

credibility. Farrar's testimony regarding the events detailed in the affidavit was

proper because it was designed to refute Beck's contention. Although it may

have related to other crimes Beck had committed, it was not offered to show

Beck's propensity to commit the crime of which he was convicted, but to bolster

Abkemeir's credibility. "Federal Rule of Evidence 404(b) allows the use of

evidence about `other crimes, wrongs, or acts' if it has a bearing on any relevant

issue other than the defendant's propensity toward criminal activity." United

States v. Forcelle, 86 F.3d 838, 842 (8th Cir. 1996). The district court offered to

give a limiting instruction on the evidence, but Beck rejected it. The district court

did not abuse its discretion or commit legal error in admitting the evidence.
11

B. Beck's hearsay contention fares no better. To the extent Farrar

described what he did and observed in connection with his controlled purchases

of marijuana and firearms from Beck through Abkemeir, his testimony was not

hearsay at all. If his testimony that when Abkemeir turned over those items to

him, Abkemeir stated that he had just purchased them from Beck was hearsay, it

came within the hearsay exception in Rule 803(1) of the Federal Rules of

Evidence for "a statement describing or explaining an event or condition made

while the declarant was perceiving the event or condition, or immediately

thereafter." Abkemeir's statement explained how he possessed the marijuana

and firearms he turned over to Farrar and was made immediately after he had

purchased them from Beck. All the events were part of a single, continuous

event. Cf. United States v. Parker, 936 F.2d 950, 954 (7th Cir. 1991) (statement

of baggage handler to police that defendant told him that bag belonged to her

was admissible in trial on drug charges under present sense impression

exception to hearsay rule where there was sufficient contemporaneity between

statement of defendant to handler and statement by handler to police).

Finally, Farrar's testimony that at the outset Abkemeir told him that Beck

had drugs for sale and that, after the first controlled purchase of marijuana, Beck

had offered to sell him a firearm, was properly admitted as background

information explaining the reasons that led Farrar to arrange the controlled

purchases. See United States v. King, 36 F.3d 728, 732 (8th Cir. 1994)

(explaining that "[a]n out-of-court statement is not considered hearsay if it is

admitted not for its truth but for the limited purpose of explaining to a jury why a

police investigation was undertaken." Such non-hearsay statements may include

"background information laying the basis for the obtaining of the search warrant

and information which could have led to the request by the agent for the search 
12

warrant and the subsequent issuance [thereof]."), cert. denied, 115 S. Ct. 954

(1995). In any event, in view of the other strong evidence in the record supporting

Beck's guilt, any possible error in admitting these relatively minor items of

evidence was harmless.

CONCLUSION

The judgment of the district court is affirmed.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, 8th CIRCUIT