UNITED STATES of America, Plaintiff-Appellee, v. John Edward SPENCER, Defendant-Appellant, 1 F.3d 742

ORDER The opinion filed December 16, 1992, slip op. 14547, and appearing at 981 F.2d 1083 (9th Cir.1992) is amended as follows: [Editor’s Note: Amendments have been incorporated into published opinion.] With these amendments, the panel has voted unanimously to deny the petition for rehearing. The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35. The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION POOLE, Circuit Judge: John Edward Spencer appeals his conviction for being a convicted felon in possession of a firearm. Spencer argues that the district court (1) erroneously denied him the opportunity to present evidence that another individual who owned the vehicle at issue in this case was found with a gun under the driver seat of another vehicle several days after Spencer’s arrest; (2) should have suppressed evidence obtained when the police stopped the car in which Spencer was a passenger and frisked him; and (3) improperly commented on the evidence presented at trial.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We affirm. FACTS On April 6, 1990, at approximately 1:00 A.M., Phoenix police officer Willie Collins stopped a motor vehicle operating without functioning headlights. Defendant Spencer was a passenger in the front seat of the car. When Officer Collins asked the driver for her license, the driver informed Officer Collins that she did not have one and that the car did not belong to her. She informed Officer Collins that the car belonged to an acquaintance named Jim Miller.

At about the same time, Officer Fred Lozier, pulling alongside the stopped vehicle, observed the defendant bend forward in his seat. Upon Officer Collins’s request for identification, Spencer presented a Maricopa County jail identification card. After Officer Lozier informed Officer Collins of what he had seen, Officer Collins took Spencer’s identification card and retreated to her patrol car to run a computer check on the defendant and on the car’s license plate.

The computer inquiry revealed that the defendant had previously been convicted of assault with a deadly weapon and that the license plate was not registered to the stopped vehicle. The computer did not reveal any outstanding warrants against Spencer. Officer Sprouse then arrived on the scene and informed Officer Collins that he had seen the same vehicle the night before being driven by a different person and adorned with a different license plate. After a short discussion, the three officers approached the vehicle and asked the driver and Spencer to step outside.

After Spencer exited the vehicle, Officer Lozier noticed that he was wearing a leather jacket and then patted Spencer down. The officer slid his hands underneath Spencer’s jacket and discovered an empty shoulder holster. Officer Lozier asked Spencer where the gun was and Spencer replied that he did not have one and was not permitted to carry one. Officer Collins then searched the front passenger area of the car. She found underneath the passenger side seat a fully loaded .44 caliber Sturm Ruger revolver.

After checking to see if the gun fit inside the holster worn by the defendant, the officers arrested Spencer on charges of carrying a concealed weapon. The police later determined that the car in fact belonged to Miller, who was arrested five days after Spencer on charges of automobile theft. At the time of his arrest the police found a handgun under the driver side seat of the car in which Miller had been traveling. At trial, the district court refused to allow Spencer to introduce evidence of Miller’s arrest and of the gun found in the car Miller had been driving.

The court did, however, allow the woman driver of the car in which Spencer had been a passenger to testify that Miller’s gun had been found by the police when they arrested him, and admitted evidence tending to show that the holster was not large enough to fit the Ruger found underneath Spencer’s car seat. During closing arguments, Spencer’s attorney asserted that Miller owned a gun similar to the one found in the car the night Spencer was arrested.

The district court sustained the prosecutor’s objection on the ground that defense counsel was arguing facts not in evidence, but did not ask the jury to disregard the comment. The district judge stated: “I think that is correct. I don’t recall that testimony. But again the jury has heard the evidence. Let’s proceed.” Spencer’s attorney did not object to the judge’s response to the prosecutor’s objection. Spencer was convicted of violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which prohibit convicted felons from being in possession of a firearm, and was sentenced to twenty-one months in federal prison.

Spencer filed a timely notice of appeal on January 15, 1991. DISCUSSION A. Suppression of evidence of Miller’s gun Spencer contends that the trial judge should have admitted police officers’ testimony and police reports detailing Miller’s arrest and the seizure of a gun from the car that Miller was driving.

Fed.R.Evid. 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We review the district court’s evidentiary decision under Rule 403 for an abuse of discretion. United States v. Hooton, 662 F.2d 628, 636 (9th Cir.), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1981).

We give the district courts “wide latitude” when they balance the prejudicial effect of proffered evidence against its probative value. United States v. Kinslow, 860 F.2d 963, 968 (9th Cir.1988). See also United States v. Layton, 855 F.2d 1388, 1402 (9th Cir.1988) (“considerable deference” given Rule 403 evidentiary decision), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989). Spencer disputes the district court’s reliance upon Rule 403 as a basis for excluding the arrest report made in Miller’s case, and the corroborating testimony of the police officers. Spencer’s argument is not persuasive.

He cites several mistaken identity cases involving the exclusion of testimony describing the identity of a suspect in a crime. See United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980); United States v. Moore, 556 F.2d 479, 485 (10th Cir.1977); United States v. Robinson, 544 F.2d 110, 112-13 (2d Cir.1976) cert. denied, 434 U.S. 1050, 98 S.Ct. 901, 54 L.Ed.2d 803 (1978); Holt v. United States, 342 F.2d 163, 164-65 (5th Cir.1965). We do not find these cases dispositive.

In Armstrong, the sole Ninth Circuit case cited by Spencer, we held that the defendant was prejudiced by the trial judge’s exclusion of testimony that a man other than the defendant had used “bait money” stolen during the bank robbery of which the defendant was accused. However, we also explained that this ruling cast no doubt on a district court’s freedom to “exclude cumulative evidence and to insure orderly presentation of a case.” 621 F.2d at 953. Spencer futilely contends that Fed.R.Evid. 404(

b) and 405(

b) dictate that the evidence of Miller’s arrest be admitted. Rule 405(

b) allows introduction of specific prior instances of conduct when that conduct is probative of character or a trait of character and the defendant’s character, or a character trait, is an essential element of his defense. Here Spencer has not raised character as an element of his defense; he claims that he did not know that the gun was under the seat. Rule 404(b), on the other hand, actually establishes an independent basis for the court’s exclusion of Spencer’s evidence. Spencer correctly argues that he, as well as the government, may invoke the provisions of Rule 404(b). See United States v.

Perkins, 937 F.2d 1397, 1400 (9th Cir.1991); United States v. McCourt, 925 F.2d 1229, 1230-36 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 121, 116 L.Ed.2d 89 (1991). Rule 404(b), however, is not an independent basis for admitting otherwise inadmissible evidence. Even evidence not barred under Rule 404(

b) must still survive scrutiny under other Rules. E.g., Perkins, 937 F.2d at 1401 (evidence was excludable under Rule 403 whether or not it was admissible under Rule 404(b)). In any event, Spencer’s evidence does not qualify for admission under Rule 404(b). Spencer argues that Miller’s “bad act” — hiding a gun under his car seat — established the identity of the person who hid the gun under Spencer’s seat: Miller. Spencer thus argues that the evidence qualified for admission under 404(

b) on “identity” grounds. We have held, however, that “[i]f the characteristics of both the prior offense and the charged offense are not in any way distinctive, but are similar to numerous other crimes committed by persons other than the defendant, no inference of identity can arise.” Perkins, 937 F.2d at 1400 (internal quotation marks omitted). That is exactly the situation here. Hiding a gun under a car seat is not a distinctive crime, and cannot be used to satisfy the “identity” exception to Rule 404(b). We find no abuse of discretion in declining to admit the evidence of the arrest reports.

We have previously held that Fed.R.Evid. 403 supports an evidentiary decision quite similar to this one. See Hooton, 662 F.2d at 636 (affirming exclusion of testimony about the level of gun trading typically engaged in by hobbyist collectors where defendant charged with dealing in firearms without a license). B.

The vehicle stop and the subsequent frisk and automobile search Spencer next argues that the police had no cause to stop the vehicle in which he was a passenger, unlawfully seized him by forcing him to remain while the officer took his identification card back to the police car for a computer check, and improperly subjected him to a “stop and frisk.” We review de novo the district court’s ruling on a motion to suppress evidence on these grounds. People of the Territory of Guam v. Ichiyasu, 838 F.2d 353, 355 (9th Cir.1988).

None of Spencer’s objections to the stop or to the subsequent warrant check and frisk are meritorious. There is no doubt that a broken headlight gives an officer cause to stop a motorist. See Delaware v. Prowse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Baker, 850 F.2d 1365, 1368 (9th Cir.1988). The detention while running a warrant check also was reasonable. To be justified, such a detention must be supported by a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v.

Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). “A valid stop can include the momentary restriction on a person’s freedom of movement in order to maintain the status quo while making an initial inquiry.” United States v. Patterson, 648 F.2d 625, 633 (9th Cir.1981). These criteria were met in this case. The driver had no operator’s license and Spencer presented a jail identification when the officer asked him to identify himself.

These facts could reasonably lead a police officer to suspect that the car did not belong to the driver and that the occupants might have been involved in criminal activities. See United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir.1985) (inferences or deductions apparent to trained law enforcement officers may be considered under the totality of the circumstances).

The police were also justified in believing that a firearm might be in the vehicle after they discovered the shoulder holster underneath Spencer’s jacket and Officer Lozier observed Spencer’s concealing movements in the automobile’s front seat after Officer Collins stopped the vehicle. Thus, the warrantless search of the stopped car was supported by probable cause. See, e.g., Baker, 850 F.2d at 1369 (police could search auto after finding ammunition on the defendant’s person). C.

The district judge’s comment to the jury The prosecutor objected that Spencer’s lawyer was outside the evidence during his closing argument. The district judge responded that he did not recall the evidence to which defense counsel had referred. Defense counsel did not object to the court’s statement; hence, we review it only for plain error. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989). “Plain error exists only in exceptional circumstances when a substantial right of a defendant is affected.” Id. (citing United States v.

Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982)). Judicial comments on the evidence are permissible. Sanchez-Lopez, 879 F.2d at 553 (citing Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698-99, 77 L.Ed. 1321 (1933)). Here, the district judge’s comments were entirely neutral. He simply stated that he did not recall the testimony about Miller’s gun referred to by Spencer’s counsel. Such a statement does not support a finding of plain error. In any event, the district judge also instructed the jury to decide the case based on the evidence as each of them remembered it.

This instruction, which indicated to the jurors that they are the sole judges of the facts, negated any adverse impact the mild comment may have had. See Sanchez-Lopez, 879 F.2d at 553. CONCLUSION We AFFIRM Spencer’s conviction. . Nor would this evidence qualify under Fed. R.Evid. 406, involving “habit or routine practice,” since proof of those attributes were not the basis of the offers. .

Our dissenting colleague accuses us of condoning the exclusion of relevant evidence and of tolerating a standard that allows prosecutors "inordinate leeway” to introduce evidence harmful to the defendant while preventing defendants from presenting evidence tending to establish innocence. Judge Reinhardt confuses arguments with facts, for we do no such thing. The key issue in this case is whether Spencer knew that the Ruger was under the seat. The outcome of the case does not necessarily turn on the question who owned the Ruger.

A jury would draw inferences about the presence of the Ruger in light of the police officers' observation of Spencer's furtive motions in the car. The district court simply concluded that the risk of confusing the issues and wasting time outweighed the likely value of any inferences that could conceivably be drawn from the subsequent discovery of a different gun under a different seat in a different car (albeit a car owned by the same person who owned the car in which Spencer was a passenger).

As to the dissent's objection that we have deprived Spencer of his constitutional right to present exculpatory evidence, we think it clear that Fed.R.Evid. 403 presents no constitutional problems. The balancing procedure it requires is ordinarily thought to meet the demands of due process. Judge Reinhardt’s assertion that Spencer’s constitutional rights were violated by its application reminds us of the defense lawyer's aphorism that "due process is what my client was denied.”