United States v. Jerry Buttner

FILED
NOT FOR PUBLICATION MAY 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10307
Plaintiff - Appellee, D.C. No. 4:08-cr-00404-SBA-1
v.
MEMORANDUM*
JERRY ERVIN BUTTNER,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted May 9, 2011**
San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
Defendant-Appellant Jerry Buttner appeals a judgment following a jury
verdict convicting him of unlawful possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). The district court imposed a 77-month sentence. Because the
parties are familiar with the factual and procedural history of this case, we repeat
only those facts necessary to resolve the issue raised on appeal. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Buttner’s sole argument on appeal is that the district court erroneously
admitted into evidence a firearm registration report generated by the Automated
Firearms System (AFS) database maintained by the California Department of
Justice. We disagree.
The AFS report falls under the public records exception to hearsay. See Fed.
R. Evid. 803(8). That exception allows for the admission of “the sundry sorts of
public documents for which no serious controversy ordinarily arises about their
truth, and it would be a great waste of time to have the person who created them
come to court and testify, such as birth certificates, death certificates, judgments,
licenses, and the like.” United States v. Orellana-Blanco, 294 F.3d 1143, 1150
(9th Cir. 2002). The firearms report was generated from data that the California
Department of Justice keeps “pursuant to duty imposed by [the California Penal
Code].” See Fed. R. Evid. 803(8). Specifically, the Penal Code requires firearms
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dealers to transmit basic identifying information about the firearm and its
purchaser to the California Department of Justice, which the Department stores in
the AFS database. See Cal. Penal Code §§ 12076(a)(1), 12077(b). This
“ministerial, objective, and nonevaluative” record-keeping raises no hearsay
concerns. See United States v. Wilmer, 799 F.2d 495, 501 (9th Cir. 1986) (citation
omitted).
The AFS report was self-authenticating under Federal Rule of Evidence
902(4). The report bore an official seal and was certified as genuine by a custodian
from the Antioch Police Department.
Finally, any error in admitting the firearms report was harmless given the
significant additional evidence of Buttner’s possession. Not only did the
government present evidence that a handgun was taken from Cebuano’s home
around the time Buttner stayed there and that Buttner possessed a gun at his sister’s
residence one week prior to his arrest, but at the time he was apprehended, police
officers witnessed Buttner reach into the grill where a handgun was secreted. The
question of Buttner’s possession is beyond dispute, and his conviction and
sentence are AFFIRMED.
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