Unpublished Disposition, 855 F.2d 863 (9th Cir. 1988)

MEMORANDUM^* 

In related cases, Odelia Rodriguez Celaya ("Celaya") and Jim Ted Carrillo ("Carrillo") appeal from convictions for conspiracy to import 50 kilograms or more of marijuana into the United States, in violation of 18 U.S.C. § 2, and 21 U.S.C. §§ 952(a), 960(a) (1), 960(b) (2), 963, and conspiracy to possess for distribution over 1000 pounds of marijuana, in violation of 18 U.S.C. § 2, and 21 U.S.C. §§ 841(a) (1), 841(b) (6), 846. We affirm.

BACKGROUND

In August of 1984, a Drug Enforcement Administration agent began an investigation of a drug smuggling ring masterminded by Miguel Torres ("Torres"). This operation used vans to transport marijuana from Mexico to Arizona. The United States eventually filed an indictment against Torres and 21 other persons it claimed were co-conspirators. Celaya and Carrillo were among the alleged co-conspirators. The government reached plea agreements with all of those indicted, except Celaya, Carrillo and another person. Accordingly, the case against these three proceeded to trial.

At trial, two co-conspirators testified to Celaya's involvement in the conspiracy. Maria Jiminez ("Jiminez") testified that she had driven vans containing marijuana to Celaya's home. On one occasion, she gave Celaya the keys to a loaded van. She also stated that she once transferred a bale of marijuana from her van to the trunk of Celaya's car.

Katie Castellanos ("Castellanos") testified that her sister, her stepson, and Celaya brought a van containing marijuana to Castellanos' house, unloaded it, and kept it there for six days. Castellanos also stated that Celaya acted as a "scout" on a marijuana smuggling trip.

Celaya denied that she had assisted in transporting marijuana. She admitted to being at the scene of criminal activity, but denied participation in the activity.

Other testimony implicated Carrillo. A neighbor, who had telephoned Tuscon police with a confidential tip, testified that she saw marijuana being unloaded at Carrillo's home. She and her daughters reported vans arriving at odd times of the night and unloading green trash bags at Carrillo's residence. They noted that a heavy smell of marijuana was present during this activity.

Jiminez testified that she picked up vans from Carrillo's home, drove them to Mexico to be filled with marijuana, and then returned them to Carrillo's home. Her boyfriend corroborated her testimony, noting that once he had baby-sat Jiminez' children while Jiminez transported marijuana to Carrillo's home.

In defense, Carrillo explained that he and Torres had grown up together in the same neighborhood. He claimed that he simply performed mechanical work on Torres' vans and did not know that the vans were part of a drug smuggling operation. To support his assertion of ignorance, Carrillo sought to call Torres to the witness stand. However, at a hearing outside the presence of the jury, the court determined that if called, Torres would invoke his fifth amendment privilege to refuse to answer all relevant questions. The court thus did not allow Carrillo to ask Torres specific questions.

After a jury trial, Celaya and Carrillo were convicted of conspiracy to import marijuana and conspiracy to possess marijuana for distribution. They timely appeal to this court.

DISCUSSION

A defendant's sixth amendment right "to compulsory process to secure the attendance of a witness does not include the right to compel the witness to waive his [f]ifth [a]mendment privilege." United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.), cert. denied, 439 U.S. 1005 (1978). In determining whether a witness may claim his fifth amendment privilege, "it need only be evident from the implication of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S. 479, 486 (1951).

In the present case, Carrillo argues that the trial court erred in sustaining Torres' invocation of his fifth amendment privilege. First, he maintains that the court incorrectly allowed Torres to make a blanket refusal to answer questions. Next, he avers that Torres had no fifth amendment privilege to assert because a plea agreement effectively precluded further criminal liability. Resolution of these issues involves mixed questions of law and fact, necessitating de novo review. See United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

Generally, a fifth amendment claim must "be raised in response to specific questions" so that "a blanket refusal to answer any questions is unacceptable." United States v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977) (citations omitted), cert. denied, 435 U.S. 923 (1978). The propounding of specific questions is necessary to ensure effective appellate review of the propriety of the claimed privilege. See United States v. Moore, 682 F.2d 853, 856 n. 1 (9th Cir. 1982); Pierce, 561 F.2d at 741.

In United States v. Tsui, 646 F.2d 365, 367-68 (9th Cir. 1981), cert. denied, 455 U.S. 991 (1982), this court recognized that an exception to the requirement of specific questions exists when " [a] trial court ..., based on its knowledge of the case and of the testimony expected from the witness, can conclude that the witness could 'legitimately refuse to answer essentially all relevant questions.' " Id. at 368 (quoting United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980)).

The present case fits squarely within the Tsui exception. By the time Carrillo sought to call Torres as a witness, the trial court had heard three days of pretrial evidentiary motions and all of the government's case-in-chief. The court's comments at the hearing to compel Torres' testimony demonstrate the court's in depth knowledge of the broad scope of Torres' potential criminal liability.

In addition, the transcript of the hearing includes the exact questions Carrillo intended to ask and the responses he expected from Torres. Aware of the scope of Carrillo's questions, the trial court noted that such questioning would subject Torres to extensive cross-examination concerning his relationship with Carrillo.

The record adequately documents both the trial court's special knowledge of the case and the expected testimony of Torres. Under these circumstances, the court could accept Torres' blanket refusal to testify.

Carrillo maintains that Torres' plea bargain agreement protected Torres from prosecution based on disclosures that may have resulted from his testimony. Of course, a witness has no fifth amendment privilege if his answers could not "possibly expose him to a criminal charge." Ullman v. United States, 350 U.S. 422, 431 (1956) (quoting Hale v. Henkel, 201 U.S. 43, 67 (1906)).

This is not the situation here. At the time of the hearing to compel Torres' testimony, Torres and the government had reached a plea agreement under which Torres would plead guilty to one count of a thirteen count indictment and receive a fifteen year sentence. Also, Torres' wife, who was included in eight counts, would receive a three year sentence, but only serve six months in actual custody.

The trial judge, however, had not yet formally accepted this agreement.¹  Accordingly, the dismissal of the remaining charges against Torres was conditioned upon final approval by the trial court. Thus, Torres retained a fifth amendment claim as there was no guarantee that the trial court would accept the plea agreement. See United States v. Valencia, 656 F.2d 412, 416 (9th Cir.), cert. denied, 454 U.S. 877 (1981).

Furthermore, the terms of the plea agreement did not bind state authorities. The state had previously begun its own investigation, and incriminating statements by Torres could have subjected him to state prosecution. See id. Hence, the district court properly concluded that Torres retained his fifth amendment privilege.

Celaya and Carrillo raise similar objections to the jury instructions. We review for an abuse of discretion a trial court's formulation of jury instructions. United States v. Washington, 797 F.2d 1461, 1476 (9th Cir. 1986). A defendant has a right to receive a jury instruction as to his theory of the case if his theory "has a basis in law and in the record." United States v. Hayes, 794 F.2d 1348, 1350-51 (9th Cir. 1986), cert. denied, 107 S. Ct. 1289 (1987). However, failure to give a requested instruction does not constitute error "if the other instructions, when viewed in their entirety, cover [the defendant's] theory." United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987).

Carrillo contends that the court's failure to give a "mere presence" instruction denied him his right to have the jury instructed on his theory of the case. At trial, Carrillo admitted knowing that Torres was involved in illegal activities but denied participating in any schemes as a co-conspirator.

It is settled that "mere knowledge of the existence of a conspiracy or mere association with a conspirator is insufficient to sustain a [conspiracy] conviction." United States v. Ryan, 548 F.2d 782, 792 (9th Cir. 1976), cert. denied, 430 U.S. 965 (1977); see United States v. Basurto, 497 F.2d 781, 783 (9th Cir. 1974).

In its charge to the jury, the court used the Ninth Circuit's model jury instruction for conspiracy. See Manual of Model Jury Instructions for the Ninth Circuit, ch. 5, Sec. 501A (1985). This instruction states that a defendant is liable for conspiracy if he "has an understanding of the unlawful nature of the plan and knowingly joins in that plan on one occasion." Id. (emphasis added). Furthermore, to be convicted, a defendant must join the conspiracy "knowing of the unlawful plan and intending to help carry it out." Id. (emphasis added).

The court also gave an instruction on what is meant by "knowingly" at the request of the government. This too was a model Ninth Circuit jury instruction. See Id. at ch. 5, Sec. 5.08. The instruction states that " [a]n act is done knowingly if the defendant realized what he or she was doing and did not act through ignorance, mistake or accident." Id.

Viewed as a whole, these instructions required the jury to find more than "mere knowledge" to convict. The jury needed to find that Carrillo knowingly joined the conspiracy, and that he joined with the intent of helping the conspiracy to accomplish its unlawful plan.

Celaya maintains that the court's refusal to instruct the jury that "mere presence" at scene of the crime is insufficient to convict constituted a failure to instruct the jury on her theory of the case. At trial, Celaya admitted to being in the company of conspirators, one of whom was her husband, and to being at the scene of criminal activity, but denied involvement in the conspiracy.

Celaya correctly asserts that knowledge of the commission of a crime coupled with presence at the scene of the crime does not suffice to establish participation in a conspiracy. See United States v. Shapiro, 669 F.2d 593, 595 (9th Cir. 1982); United States v. Weaver, 594 F.2d 1272, 1274 (9th Cir. 1979).

However, the court's instructions on conspiracy adequately covered this point.²  As previously noted, the conspiracy instruction required a finding that each defendant knowingly joined in the unlawful plan of the conspiracy and intended to help carry out that plan. Furthermore, the conspiracy instruction informed the jury that to find a conspiracy "it is not enough that [the conspirators] met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find beyond a reasonable doubt that there was a joint plan...." The jury was thus obligated to find more than mere presence at the scene of wrongdoing to convict Celaya.

AFFIRMED.