                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 22 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50187

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00301-GW-1

  v.
                                                 MEMORANDUM*
CALVIN CHARLES COLBERT, Jr.,
AKA Cal, AKA Calvin Colbert,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                      Argued and Submitted October 9, 2013
                              Pasadena, California

Before: PAEZ and HURWITZ, Circuit Judges, and ERICKSON, Chief District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
             The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for the District of North Dakota, sitting by designation.
      Calvin Colbert appeals his conviction and sentence for possession with

intent to distribute cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B)(iii), and

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

1.    The district court did not err when it denied Colbert’s motion to suppress the

evidence seized under the search warrant on the basis that Officer Gerald Beall’s

affidavit included alleged misstatements and omissions in violation of Franks v.

Delaware, 438 U.S. 154 (1978). Although Beall’s affidavit included ambiguous

statements that made the source of some of the observations in his affidavit

uncertain, the district court did not clearly err when it found that Beall was credible

and did not seek to mislead the magistrate judge by leaving attribution of the

observations ambiguous.

      As the district court noted, Beall was part of an investigative team that made

real-time reports of observations to Beall, some of which he included in his

affidavit. An affidavit need not specifically and accurately attribute each reported

observation. See United States v. Sitton, 968 F.2d 947, 955 (9th Cir. 1992).

Unlike the officer in United States v. Davis, 714 F.2d 896 (9th Cir. 1983), where




                                           2
false attribution violated Franks, Beall did not explicitly state in the affidavit that

he observed something he did not, in fact, observe.

2.    The district court did not err when it ruled that Beall’s pre-Miranda

questions, and Colbert’s responses, about weapons on Colbert’s body were

admissible under the public safety exception. See New York v. Quarles, 467 U.S.

649, 656, 658 (1984).

      Although Beall had subdued and handcuffed Colbert “a couple minutes

before” he posed the disputed questions, weapons and dangerous objects on

Colbert’s body still posed a danger to Beall, who was about to conduct a body

search. Beall’s questioning fits within the public safety exception because he

asked Colbert whether he had any weapons on his body. Colbert’s response

included unsolicited information about the location of the firearm. Spontaneous,

unsolicited information in response to a question that falls within the parameters of

the public safety exception is admissible. United States v. Carrillo, 16 F.3d 1046,

1050 (9th Cir. 1994).

3.    The district court did not abuse its discretion by admitting a photograph of a

text message from an individual named “Monae” on a cell phone the officers

seized from the hotel room where they arrested Colbert. At trial, Colbert testified

that he did not know anyone named Monae. The government sought to introduce


                                            3
the photograph as circumstantial impeachment evidence that Colbert, in fact, did

know Monae. After establishing that the phone belonged to Colbert, the

government called a witness to the stand to establish that she took the photograph

of the text message showing that the message was from a person whose name was

programmed into Colbert’s phone. In light of this evidence, the district court did

not err in concluding that there was sufficient authentication of the photograph as

required by Federal Rule of Evidence 901(a) to warrant its admission.

4.     The district court did not err when it ruled at an in limine hearing that it

would allow Colbert to call Beall as a witness only if Beall’s testimony was

relevant to Colbert’s case-in-chief, but not to offer it solely for purposes of

impeachment. After the government rested its case, Colbert made no attempt to

call Beall to testify. Colbert’s failure to attempt to call Beall after the

government’s case-in-chief is fatal to his argument on appeal. See Tennison v.

Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001).



AFFIRMED.




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