Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1989)

MEMORANDUM^* 

Defendant appeals his conviction for a single count of "transporting an illegal alien" and "aiding and abetting" in violation of 8 U.S.C. § 1324(a) (1) (B) and 18 U.S.C. § 2. We affirm.

Defendant first contends that the district court erred in failing to dismiss the superseding indictment because the prosecutor failed to inform the grand jury that Ramos had given a sworn statement exculpating him, and because the testimony before the grand jury consisted of hearsay. We disagree that this constitutes misconduct. First, it is well settled that an indictment may be based on hearsay. Costello v. United States, 350 U.S. 359 (1956); United States v. Buffington, 815 F.2d 1292, 1304 (9th Cir. 1987). Second, a prosecutor has no duty to present exculpatory evidence to the grand jury and failure to do so does not invalidate the indictment. United States v. Busher, 817 F.2d 1409, 1411 (9th Cir. 1987); Buffington, 815 F.2d at 1304. Furthermore, we note that Ramos' sworn statement was not necessarily exculpatory. Ramos denied that defendant smuggled him over the border, but defendant was ultimately indicted only for transporting an illegal alien within the United States, not for smuggling him into the country. Because Ramos did not deny that defendant handed him car keys in the parking lot, his sworn statement did not necessarily exculpate defendant from the charge of transporting an illegal alien. In sum, the district court did not err in refusing to dismiss the superseding indictment.

We also believe that any misconduct before the grand jury would have been rendered harmless by the petit jury's guilty verdict under the harmless error rule of U.S. v. Mechanik, 475 U.S. 66 (1986).

Appellant raises two challenges to the trial court's instructions to the jury.¹  First, appellant contends that the district court erred in failing to instruct the jury that an aider and abettor cannot also be the principal, since there was evidence at trial which suggested that defendant could have been either. We disagree. As part of its aiding and abetting instruction, the district court instructed the jury as follows:

You, of course, may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instruction was committed by some person or persons and that the defendant participated in its commission.

RT III at 26 (emphasis supplied). This language adequately instructed the jury that the principal and the aider and abettor could not be the same person. The instruction on this point was certainly not plain error.

Second, appellant argues that the district court erred by not providing a "specific unanimity" instruction to the jury. We disagree. Although we have occasionally held the failure to give a specific unanimity instruction to be plain error in cases involving factual patterns that were sufficiently complex to create a "genuine possibility" of juror confusion, United States v. Gilley, 836 F.2d 1206, 1211 (9th Cir. 1988), we know of no authority requiring a specific unanimity instruction in a case such as this involving a straightforward count combining principal and aider and abettor liability. In contrast to the complex indictments and factual issues at stake in Gilley and United States v. Payseno, 782 F.2d 832 (9th Cir. 1986), the evidence and legal theories in this case were reasonably simple. In light of the trial court's general unanimity instruction, which was coupled with a careful instruction on the elements of the crimes and an admonition that the jury could only convict if all the elements were found, we cannot say it was plain error to refuse a more specific unanimity instruction. We express no opinion on whether a general unanimity charge would have sufficed under ordinary standards of appellate review.

AFFIRMED.