Unpublished Disposition, 878 F.2d 388 (9th Cir. 1989)

MEMORANDUM^* 

After a joint trial, appellants James Wallace and Kelvin Kim Williams were convicted of conspiracy to manufacture PCP, see 21 U.S.C. §§ 841(a) (1), 846 (1982), manufacture of PCP, see 21 U.S.C. § 841(a) (1) (1982), and possession of PCC with intent to manufacture PCP, see 21 U.S.C. § 841(a) (1) (1982). A third codefendant, Alvin Upson, was acquitted on all counts. On appeal, both Williams and Wallace raise numerous claims of error. We affirm.

Williams and Wallace first contend that the district court erred in denying their respective motions for severance.¹  Each appellant argues that severance was necessary due to antagonistic defenses and spillover evidence. Wallace claims, in addition, that the joint trial barred the presentation in his defense of the exculpatory testimony of Williams. We review the district court's denial of a severance motion for abuse of discretion. United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986).

Ordinarily, defendants jointly indicated should be jointly tried. See id. at 1553. If, however, codefendants' defenses are so antagonistic as to be mutually exclusive--that is, acquittal of one defendant will preclude acquittal of the other--then severance is necessary. See id. at 1554; United States v. Ramirez, 710 F.2d 535, 546 (9th Cir. 1983). In the instant case, Wallace and Williams argue that their defenses and that of codefendant Upson were impermissibly antagonistic. This claim, however, is belied by Upson's testimony at trial. Upson testified that he did not know what was going on in the shed, that he rented it to an individual named Charles Wilson, and that he knew Wallace because Wallace had purchased a number of his bobtail cats. Further, although Deputy Chew testified that Upson told him on the night of the arrests that the shed was rented by Wallace and Williams, Upson expressly denied making such a statement at trial. Thus, crediting Upson's story did not preclude acquittal of Wallace or Williams. Indeed, all three codefendants could have been exonerated had the jury believed that Charles Wilson was the only culpable party. Severance was therefore not required due to antagonistic defenses.

To determine whether severance is required due to the prejudicial effect of spillover evidence, we focus on "whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in the light of its volume and limited admissibility." Ramirez, 710 F.2d at 546 (citations omitted). Severance is not necessary simply because the evidence is stronger against one codefendant than against another. See United States v. Marcello, 731 F.2d 1354, 1360 (9th Cir. 1984).

The possibility of prejudice in the present case was not strong enough to necessitate severance. Much of the evidence introduced was at least potentially relevant to all three defendants, because the jury was free to conclude that a conspiracy existed and that each co-conspirator was therefore vicariously liable for all the acts of the other co-conspirators taken in furtherance of that conspiracy. See United States v. Basey, 613 F.2d 198, 202 (9th Cir. 1979), cert. denied, 446 U.S. 919 (1980). Further, the district judge instructed the jury that it should determine each defendant's guilt or innocence individually, considering only the evidence applicable to that defendant. The jury apparently followed this instruction as it acquitted Upson while convicting Wallace and Williams. Finally, although three defendants were tried, the trial was not so long and complex that the likelihood of jury confusion was high. Refusing to grant severance on this ground was not an abuse of discretion.

Wallace's third ground for arguing that severance was appropriate is that separate trials would have allowed him to present the exculpatory testimony of Williams in his defense. Since Williams refused to take the stand at his own trial, his testimony was not available in a joint forum. "When the reason for severance is the need for a codefendant's testimony, [a] defendant must show that he would call the codefendant at a severed trial, that the codefendant would in fact testify, and that the testimony would be favorable to the moving party." United States v. Jenkins, 785 F.2d 1387, 1393 (9th Cir.), cert. denied, 479 U.S. 855 (1986). Wallace has clearly failed to meet this heavy burden. First, Wallace never described the nature of the exculpatory testimony he intended to elicit from Williams. See id. at 1394 (a mere assertion that a codefendant's testimony would be favorable is insufficient). Further, Williams never unequivocally promised to testify, but instead agreed to appear at Wallace's trial only after his own case was completed. Such a conditional offer of testimony is sufficient reason, in itself, to deny Wallace's severance request. See, e.g., United States v. Little, 753 F.2d 1420, 1446 (9th Cir. 1984).

Both Williams and Wallace argue that the evidence was insufficient to support their convictions for conspiracy to manufacture PCP and actual manufacture of over a kilogram of a substance containing a detectable amount of PCP. When reviewing the sufficiency of the evidence, appellate courts must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citation omitted).

According to Williams and Wallace, the evidence adduced at trial proved only that they were associates, not that they were co-conspirators. In order to establish the existence of a conspiracy, the government had to prove: "(1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime." United States v. Meyers, 847 F.2d 1408, 1412-13 (9th Cir. 1988) (citation omitted). "A conspiracy may be proven by circumstantial evidence that the defendants acted together with a common goal." United States v. Disla, 805 F.2d 1340, 1348 (9th Cir. 1986). Finally, " [o]nce existence of a conspiracy has been established, evidence of only a slight connection to the conspiracy is necessary in order to convict any one defendant of knowing participation in it." United States v. Berberian, 851 F.2d 236, 238 (9th Cir. 1988), cert. denied, 109 S. Ct. 1567 (1989).

In the present case, a large amount of circumstantial evidence exists implicating both Wallace and Williams in a conspiracy to manufacture PCP.²  In addition, Wallace's attempt to offer an innocent explanation of events could easily have been disbelieved by the jury as his account was often inconsistent and without corroboration. Given these circumstances, we cannot conclude that the jurors who convicted Williams and Wallace of conspiracy acted irrationally.

2. Manufacture of Over a Kilogram of a Substance Containing

a Measurable Amount of PCP

Appellants' only objection to their conviction on this count is that the government failed to prove that any of the substances the two men manufactured that contained a measurable amount of PCP weighed over one kilogram. However, a chemist testified at trial that he detected PCP in the chemical sludge found in three buckets in the laboratory. The combined weight of these buckets was 134 pounds, substantially in excess of the one kilogram (2.2 pound) requirement. The government did not need to establish the actual amount of PCP found in this sludge as long as there was a "detectable" amount present. The evidence of weight was therefore sufficient.

After several prospective jurors had been selected as members of the petit jury but before the full panel had been selected and sworn, one of appellants' codefendants, Beverly Ann Hobbs, pled guilty and was thereafter absent from the trial. Appellants immediately asked the district court to dismiss the venire on the ground that it might speculate regarding Hobbs' absence, conclude that she had pled guilty, and impermissibly impute her admission of guilt to the remaining defendants. The district judge, however, refused to dismiss the venire.³  Instead, he instructed the jury that it should not speculate regarding Hobbs' absence nor consider her absence when determining the guilt or innocence of the remaining defendants. This admonition was repeated in the district court's final instructions to the jury.

The district judge handled the situation in an entirely proper manner. The instruction it gave is functionally identical to the model instruction promulgated by this circuit to cover just such an occurrence. See Manual of Model Jury Instructions for the Ninth Circuit Sec. 2.11 (1985). Further, although in this case the venire was never told of Hobbs' guilty plea, this circuit has refused to find reversible error even in more extreme cases where such information was disclosed. See United States v. Washabaugh, 442 F.2d 1127, 1129 (9th Cir. 1971) (where defendants are closely identified with one another better practice is not to disclose guilty plea, but not reversible error to do so); Jones, 425 F.2d 1048, 1053 (9th Cir.) ("plain and nonargumentative statement [disclosing guilty plea] is proper"), cert. denied, 400 U.S. 823 (1970).

Williams claims that the 9-month delay between his arrest and the commencement of his trial constitutes a violation of his sixth amendment right to a speedy trial. When reviewing a speedy trial claim, " [t]he district court's findings of historical fact concerning the reasons for the ... delay are reviewed under the clearly erroneous standard." United States v. Layton, 855 F.2d 1388, 1411 (9th Cir. 1988) (citation omitted), cert. denied, 109 S. Ct. 1178 (1989). In contrast, the district court's application of law to the facts is reviewed de novo. Id. The Supreme Court has adopted a functional test for analyzing speedy trial questions that involves the weighing of four primary factors: (1) the length of the delay; (2) the reasons for it; (3) the defendant's assertion of the right to a speedy trial; and (4) the prejudice to the defendant caused by the delay. See United States v. Solomon, 753 F.2d 1522, 1526 (9th Cir. 1985) (citing Barker v. Wingo, 407 U.S. 514, 522 (1972)). No single factor is sufficient to establish a violation. Id. (citation omitted).

The 9-month delay in the present case "is not long enough to weigh heavily against the government." United States v. Moore, 653 F.2d 384, 388-89 (9th Cir.) (10 1/2-month delay), cert. denied, 454 U.S. 1102 (1981). Further, the majority of the delay is not attributable to the government, but was instead caused by transfer of the case and the filing of defense motions. In Williams' favor, he did demand at one point to proceed to trial immediately, invoking his speedy trial rights. Further, Williams can claim prejudice due to his incarceration during the delay and the disruption of his life caused by unresolved criminal charges. See, e.g., Solomon, 753 F.2d at 1527. He cannot, however, successfully argue that he was prejudiced for purposes of speedy trial analysis by the rejoinder of Wallace. See id. (holding that the joinder of a codefendant was not "related to the passage of time" and did not impair the original defendant's right to a fair trial). Finally, Williams has pointed to no evidence that the delay hampered his ability to put on a defense.

Although Williams may have suffered some personal prejudice, the delay in this case was neither inordinately long nor due to government malfeasance. We find no violation of Williams' sixth amendment rights.

Wallace contends that the district court erred in failing to suppress evidence gleaned from the search of the shed that housed the PCP laboratory. The district court concluded that Wallace lacked standing to challenge the search because he forfeited any expectation of privacy he had in the property when he abandoned it. See United States v. Anderson, 663 F.2d 934, 938 (9th Cir. 1981) (" [i]f a person has voluntarily abandoned property, he has no standing to complain of its search or seizure" (citations omitted)). A district court's determination that property has been abandoned is a factual finding subject to reversal only for clear error. United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986).

When determining whether particular property has been abandoned, courts consider "the totality of circumstances, and two important factors are denial of ownership and physical relinquishment of the property." Id. In the instant case, the district judge concluded that Wallace abandoned the shed when he fled the premises at high speed upon the approach of the police. See Section F1, infra (discussing evidence of flight in detail). This view of the facts was further supported by Wallace's subsequent disclaimer of any ownership interest in the premises. In these circumstances, we decline to hold the district court's finding of abandonment clearly erroneous. Thus, Wallace's fourth amendment rights were not implicated in the search of the shed.

Wallace alleges error in two separate jury instructions given by the district court in the present case. This court reviews jury instructions for abuse of discretion. See Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988). If a challenged instruction was not objected to at trial, however, review on appeal is only for plain error. United States v. Ramos, 861 F.2d 228, 230 (9th Cir. 1988).

Among the district court's final instructions to the jury was an instruction on flight, given over Wallace's objection. Although " [e]vidence of flight is generally admissible as evidence of consciousness of guilt and of guilt itself," United States v. Harris, 792 F.2d 866, 869 (9th Cir. 1986), such a flight instruction is appropriate "only if there is evidence sufficient to support a chain of unbroken inferences from the defendant's behavior to the defendant's guilt of the crime charged." United States v. Silverman, 861 F.2d 571, 581 (9th Cir. 1988) (citation omitted). Specifically, this circuit has held that four separate inferences must be justified: "(1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness to guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged." Id. at 581 (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)).

In the instant case, Wallace argues that there was insufficient evidence to support the first inference--that his conduct was consistent with flight. He claims that the only evidence before the jury on the issue was his denial of knowledge that the police were present. However, although no direct evidence that Williams and Wallace fled in response to the presence of the police was introduced, circumstantial evidence existed from which intent to flee could be inferred. Moments after the police parked their marked patrol cars at a neighboring house and proceeded toward the Arapaho Way property, Williams and Wallace left the scene at high speed. Testimony indicated that they were traveling as fast as 50 miles per hour while still in the dirt driveway leading up to the property. Indeed, appellants were unable safely to sustain this speed, overturning their vehicle in a ditch less than a mile from the laboratory.

Although Wallace testified that his erratic driving was due to the involuntary ingestion of a drug, the jury need not have believed his story. Further, the government did not need to prove flight beyond a reasonable doubt before the jury could consider it. See United States v. Hernandez-Miranda, 601 F.2d 1104, 1107 (9th Cir. 1979); see also Myers, 550 F.2d at 1050 (flight instruction proper if evidence is sufficient to furnish "reasonable support" for all four of the necessary inferences). Finally, the jury was not instructed that flight had been definitively established. Rather, it was simply told that it could consider flight, if proven, to whatever extent it wished. Under these circumstances, the evidence presented was sufficient to justify the instruction that was given.

In its instructions to the jury, the district court stated that proof of specific intent was necessary before the defendants could be convicted. After the court defined the term for the jury's benefit, it discussed separately the elements of each crime charged. Wallace does not challenge the wording of the specific intent instruction. Rather, he argues that use of a general instruction was improper and that the district court instead should have instructed the jury separately as to each element of each offense that required specific intent. Since Wallace did not make this objection at trial, review is only for plain error. See Ramos, 861 F.2d at 230.

We have reviewed the district court's instructions and do not find them misleading. The specific intent instruction clearly applied to the knowledge requirement of each offense. When a different type of knowledge was required, the district judge explained the difference to the jury. We see no plain error here.

During trial, a hand-drawn map of the Arapaho Way property and its environs was developed and referred to by several witnesses. Although introduced into evidence, the map was inadvertently lost and was therefore not available for counsel's use during summation or for the jury's use during deliberations. Wallace moved for mistrial and new trial based on the destruction of the exhibit, but the district court denied both motions. This decision is reviewed for abuse of discretion. See Segal, 852 F.2d at 1155 (mistrial); United States v. Aguon, 851 F.2d 1158, 1170 (9th Cir. 1988) (new trial) (en banc).

Wallace has not shown that he was substantially prejudiced by the exhibit's absence. Although the map might have been useful to the jury as a convenient summary of the testimony it heard, the jury was aware of that testimony and did have the benefit of the map prior to deliberation. Compare United States v. Scott, 789 F.2d 795, 799-800 (9th Cir. 1986) (temporary loss of photographs so that defendant could not use them in his testimony not prejudicial error where contents of pictures had been testified to and jury actually had a chance to see them). The district court therefore did not abuse its discretion by concluding that the loss of the exhibit mandated neither mistrial nor new trial.

AFFIRMED.