Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1987)

MEMORANDUM^** 

Appellant Luis Fernando Gomez (Gomez) appeals from his conviction following a jury trial for (1) conspiracy to possess cocaine in violation of 21 U.S.C. § 846 and (2) possession with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Gomez seeks reversal on the following grounds:

One. There was insufficient evidence to support a conviction of conspiracy because the government failed to prove that the accused was a knowing participant.

Two. The government improperly vouched for the credibility of a witness through the testimony of two officers from the Drug Enforcement Agency and in its closing argument.

Three. It was misconduct for the trial judge to direct the prosecutor to ask certain questions and to argue that defense counsel's argument was based on speculation.

We discuss each of Gomez's contentions and the facts pertinent thereto under separate headings. Because we conclude that none of these contentions is meritorious, we affirm.

Sufficiency of the Evidence

Gomez claims that the government failed to prove that he was a knowing participant in the charged conspiracy by clear and unequivocal evidence. Gomez argues in his closing brief that " [a] line of cases exist [sic] stating that the intent element in conspiracy must be established by clear, not equivocal evidence." Reply Brief for Appellant at 2. Gomez refers us to three cases that place this burden on the government. Direct Sales Co. v. United States, 319 U.S. 703 (1943), Miller v. United States, 382 F.2d 583 (9th Cir. 1967), cert. denied, 390 U.S. 984 (1968), and United States v. Federico, 658 F.2d 1337 (9th Cir. 1981), overruled on other grounds, United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc). Gomez is correct that these cases stand for the principle that in a conspiracy case, "evidence of knowledge must be clear, not equivocal." Direct Sales Co., 319 U.S. at 711 (citation omitted). Each of these cases, however, is concerned with the problem confronting the government when knowing participation must be proved solely by circumstantial evidence. Thus, in Direct Sales Co., the Supreme Court observed that "charges of conspiracy are not to be made out by piling inference upon inference." Id. In Direct Sales Co., there was no direct evidence of any meeting during which a representative of the defendant agreed to commit a crime. Id. at 714. The Supreme Court affirmed the judgment in Direct Sales Co., however, based on its conclusion that the circumstances showed "a tacit understanding, created by a long course of conduct and executed in the same way." Id.

In Miller, we applied Direct Sales Co 's "clear, not equivocal" limitation on the use of circumstantial evidence to prove knowing participation in a conspiracy where the only evidence presented by the government was that a woman went to the home of a known narcotics dealer and was a passenger in his car when it was observed to make several stops after entering Arizona from the Nogales Port of Entry. We reversed in Miller because we concluded that, under the circumstantial evidence presented by the government to show knowing participation, "two valid inferences [were] possible":

(1) that Mrs. Joseph knowingly and intentionally participated in the plan of Miller, Cardenas-Vega and others to illegally import heroin, or (2) that Mrs. Joseph, totally unaware of her companion's activities, merely went along for the ride. Where both inferences are equally valid, the defendant is entitled to the one which favors her.

Miller, 382 F.2d at 587 (citations omitted). "It follows that with regard to Mrs. Joseph, the prosecution failed to prove facts which, if believed, would show guilt beyond a reasonable doubt." Id. (emphasis added).

We also applied the "clear, not equivocal" test for the use of inferences in proving knowing participation in Federico. In a divided opinion, we found the circumstances sufficient to sustain a conviction although " [n]o direct evidence linked Federico to the plan to procure the cocaine and distribute it to Gilbert." Id. at 1341 (footnote omitted). In the matter before this court, there was direct evidence of Gomez's knowing participation in a conspiracy to possess cocaine.

A government informer testified that on March 25, 1987, Carlos SanClemente-Bejarano (SanClemente) asked Gomez if he could furnish a hundred kilograms of cocaine for sale to a customer in Hawaii. Gomez agreed to do so. On April 2, 1987, Gomez drove to the informer's apartment in a red car with a black top. He told SanClemente he could provide him with 20 kilograms of heroin that day and an additional 20 to 30 kilograms the next day. He stated he would provide 10 kilograms by noon and the remaining amount would be delivered that afternoon.

SanClemente left the apartment with Gomez. SanClemente returned alone and told the informer that he had 10 kilograms of heroin in his possession. SanClemente also advised the informer that Gomez would return in an hour and one half to pick up his money for the 10 kilograms. Undercover officers met SanClemente at the informer's apartment. SanClemente was arrested when he produced 10 kilograms of heroin from the trunk of the red car with the black top. One hour after SanClemente was arrested, Gomez and Jose Osmar drove into the same parking lot.

SanClemente testified as a defense witness. He testified that Dario, a Japanese man from Colombia, and Jose Osmar agreed to supply cocaine for the Hawaiian customers. SanClemente testified further that Gomez was not told about the cocaine transaction.

The jury believed the informer-witness' testimony that Gomez agreed to furnish cocaine to SanClemente. Thus, the government's evidence clearly and unequivocally demonstrated Gomez' guilt beyond a reasonable doubt.

We must uphold a conviction if the evidence, when viewed in the light most favorable to the government, would support a finding by any rational trier of fact that the defendant was guilty beyond a reasonable doubt of each essential element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Penagos, 823 F.2d 346, 347 (9th Cir. 1987).

It is "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319 (emphasis added). It is the province of the jury to make this determination and " [o]nce a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Id. (emphasis in original) (footnote omitted).

Viewing the evidence in the light most favorable to the government, we conclude that, based on the informer's testimony, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (emphasis in original) (citation omitted).

Gomez argues that the prosecutor impermissibly vouched for the credibility of the informer-witness by presenting evidence of two officers for the Drug Enforcement Administration that she had been "truthful."

Evidence of the truthful character of a witness is admissible "only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. " Fed.R.Evid. 608(a) (2) (emphasis added). The record shows that the informer-witness' character for truthfulness was first attacked during the defense counsel's opening statement. Counsel argued that "she had not been fully frank with the agents," and that "she had a need to create cases to justify her continued freedom."

Prior to cross-examination of the informer-witness, Gomez's defense counsel advised the court that he planned to ask her questions concerning her alleged addiction to cocaine, that her boyfriend was in prison on a drug-related charge, that her brother was dealing in narcotics, and her motives for acting as an informer, in order to attack her credibility. In support of his offer of proof, defense counsel advised the court that he would request a jury instruction concerning the necessity to weigh an informant's testimony with greater care. The district court denied the government's in limine motion to preclude cross-examination concerning these matters.

During cross-examination, Gomez's attorney questioned the informer-witness concerning her imprisoned boyfriend, her alleged use of cocaine, and whether her brother was involved with her in the sale of cocaine. During the direct examination of Drug Enforcement Administration Agent Paul Clayton (Agent Clayton), the witness testified that information received from informants is verified for accuracy. Agent Clayton testified that he confirmed the accuracy of the information he received from her concerning SanClemente's New York phone number and the name of her cocaine source in a separate state prosecution. After being sworn by a state judge to tell the truth, the informer-witness stated that the information she furnished Agent Clayton was true. Gomez's counsel objected to this testimony. In response to the objection, the court proposed the giving of a cautionary instruction that the testimony was not received for the truth of the matter asserted but to establish the officer's state of mind concerning the officer's belief in the accuracy of the informer's information. Gomez's trial counsel replied that he had "no objection as long as he ties it to this case." R.T. June 11, 1987 at 252. The jury was admonished that the testimony was received for the officer's state of mind "as regards his belief in this particular informant ... solely, and not for the truth of that which he has testified to." Id. at 252-253.

In a subsequent colloquy, Gomez's counsel advised the court that he had no objection to Agent Clayton's testimony concerning what he did to verify the information he received on the case "insofar as it affects his state of mind." Defense counsel also advised the court that he had "no objection to this witness, Mr. Clayton, being asked by this U.S. Attorney what his opinion is of the witness for truthfulness based on his experience with her." R.T. June 12, 1987 at 313. Later, defense counsel informed the court: "If he is asked a question, 'You have been working with her since October. In your opinion has she always been honest with you in the performance of her duties,' and he says 'yes,' I don't think that is vouching." Id. at 319.

The prosecutor then inquired whether the following questions to Agent Clayton would raise an objection:

Agent Clayton, have you been working with [the informer-witness] since October of 1986?

Based upon that, do you have an opinion as to the truthfulness of [the informer-witness]?

And what is that opinion?

Gomez's counsel replied:

Mr. May: One modification:

Her truthfulness with you.

The Court: Okay.

Mr. May: Otherwise, it is vouching.

No objection to those three questions.

The Court: No objection?

Mr. May: If the agent confines his answers I would have no objection.

Id. at 321.

Following this discussion, counsel stipulated that the court inform the jurors that they should disregard Agent Clayton's testimony concerning the information he received about a cocaine arrest and investigation connected with Juan's garage. Prior to the submission of the case to the jury, the court discussed that this stipulation had not been read. Gomez's counsel was asked if the stipulation should be read to the jury. He replied: "I would say forget it, your Honor. That is perfectly acceptable to me."

When Agent Clayton resumed the stand, he was asked the previously approved questions concerning his opinion about the informer-witness' truthfulness without objection. United States Customs Service Investigator Serge S. Duarte also testified that he had a favorable opinion of her truthfulness without objection.

This record demonstrates that there was no error in permitting the officers to testify concerning their opinion about the informer-witness' truthfulness. The evidence was admissible under F.R.Evid. 608(a) because the informer-witness' character for truthfulness had been attacked. Furthermore, defense counsel advised the court that such testimony was admissible and gave his prior approval to the form of the questions.

Gomez contends that the government impermissibly vouched for the informer-witness' character during closing argument. Gomez argues that the prosecutor's statement "she testified as truthfully as she could" was improper argument. No objection was made to the statement. When placed in context, the prosecutor's statement was not an expression of his personal opinion of the credibility of the informer-witness in violation of United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980).

In comparing the testimony of the informer-witness with the evidence presented by SanClemente, the government pointed out that her testimony was corroborated by the testimony of Drug Enforcement Administration Agent Clayton and United States Customs Investigator Duarte. The prosecutor then argued:

[The informer-witness], despite the fact that she didn't speak English, despite the fact she got a bit confused during the cross-examination of Mr. May, she testified truthfully as well as she could.

Read in context, the prosecutor's argument was directed at attempting to explain the witness' courtroom demeanor and the fact that she testified as "truthfully" and "as well as she could" considering her inability to speak English. The prosecutor did not suggest, that he had information, not presented to the jury, that demonstrated to his personal satisfaction that she told the truth. The prosecutor's comments, however inartful, were a comment on facts known to the jury.

III

ALLEGED JUDICIAL MISCONDUCT

Gomez asserts that the district court "went beyond the bounds of impartiality" in directing the prosecutor to inquire into certain subjects and to argue that the defense argument was speculative. Reply Brief for Appellant at 6.

A. Direction to the Prosecutor to Elicit Certain Evidence

During the cross-examination of SanClemente concerning a telephone call to Gomez after the witness arrived in Los Angeles, defense counsel interposed a series of objections. After sustaining these objections, the court stated as follows:

I will sustain the objection. Determine the specifics of how this subject came up. Who was going to collect some money? What was he doing back in New York, and how he happens to fly out here just to collect some money from a person he hardly knows. Find that out, will you, please.

R.T. June 16, 1987 at 744.

Counsel objected to the court's statement. After a sidebar discussion in which Gomez's attorney informed the court that the court had misstated the evidence in stating that SanClemente had come to Los Angeles to collect a debt, the court instructed the jury as follows:

Ladies and gentlemen, I will remind you, first of all, that any questions I may ask or suggest in no way have any bearing on the case. Only it is eliciting testimony that may or may not be of use to you. All right. I suggest no view on my own part whatsoever.

On occasion, the Court can become impatient and want to get the testimony elicited, perhaps a little quicker. But there is no suggestion whatsoever regarding my view, and I stress that. You are the fact finders, not the Court.

Id. at 749.

After the jury was excused, Gomez's counsel requested that the trial court make a further statement to the jury. The court agreed. Counsel agreed on the text of the court's statement. When asked if he had any further requests concerning the court's direction to the prosecutor to inquire on certain matters, defense counsel replied: "No, your Honor. No, your Honor. We think that would take care of it." R.T. June 17, 1987 at 793.

The next morning, the court made the following statement to the jury:

Let me commence by saying that yesterday, Mr. SanClemente, during Mr. SanClemente's cross-examination, the Court interrupted Mr. Dunlavey's questioning and instructed him to determine specifics of how the subject of SanClemente traveling from New York to California came up, who was going to collect some money, what he was doing back in New York, and how he happened to fly to Los Angeles just to collect some money from a person he hardly knows.

You should understand that the Court's comments do not suggest that Mr. SanClemente had not already testified as to those topics, nor does the Court suggest that it has made a determination as to Mr. SanClemente's credibility. Most assuredly, I have not. That is not my determination any way. It is yours. All right. I want to make that very, very clear.

As I said to all of you, you must listen to all of the testimony. Sometimes during a case, the Court can become a bit impatient and want to move things along. And I am afraid I interjected myself in that sense. All right. I hope it is not a frequent failing, but it is a sometime failing.

Continuing: That decision, that is, the decision re Mr. SanClemente's credibility is exclusively within the province of the jury. As the trier of fact, you have heard Mr. SanClemente's answers on direct examination, and upon review of the record, it appears that Mr. SanClemente has answered questions as to the events leading up to his coming to California.

The Assistant United States Attorney has the right to probe further in to that area on cross-examination. Nothing that the Court has said is meant to imply what facts you should find in this case, nor any comment upon the believability of any witness.

I assidiously avoid that. I try to. All right. Please, you are the triers of fact. You will understand. I am sure.

Id. at 795-96.

The record does not support Gomez's contention that the court's direction to the prosecutor to elicit certain testimony was advocacy. To paraphrase Brendon Sullivan, a trial judge is not a potted plant. We explained a trial court's duty during the presentation of evidence as follows in United States v. Mostella, 802 F.2d 358 (9th Cir. 1986):

It is well established that a trial judge is more than a moderator or umpire. It is entirely proper for him to participate in the examination of witnesses for the purpose of clarifying the evidence, confining counsel to evidentiary rulings, controlling the orderly presentation of the evidence, and preventing undue repetition of testimony.

Id. at 361 (citations omitted).

The trial judge's direction to the prosecutor to explore specific subject matter during his cross-examination was a proper exercise of the duty to clarify the evidence and to control the proceedings by attempting to reduce the necessity for further objections by opposing counsel. When apprised that he misstated the evidence, the trial judge took prompt steps to clarify the matter for the jury by reading a special instruction that had been approved by Gomez's lawyer.

B. Direction to the Prosecutor to Rebut Defense Argument

During his argument to the jury, defense counsel referred to his client as a mere "gofer." When Gomez's attorney finished his remarks, counsel were called to the sidebar. The court then stated to defense counsel that there was no evidence to support the argument that Gomez was a "gofer." The court also commented that counsel had "speculated so grossly" that the trial judge almost "stepped in" but refrained from doing so because " [i]t could have, conceivably, been so fatal to [the] defense, that I did not do so."

The court then admonished the prosecutor not to comment on the defendant's failure to take the stand. The prosecutor was also told that simply because the court permitted counsel to speculate, without interruption, the government was not precluded from telling the jury: "Ladies and Gentlemen, you just heard Mr. May's speculation and nothing more." R.T. June 18 and 19, 1987 at 1074. The prosecutor replied that " [p]rior to the court requesting the attorneys to approach the sidebar, I definitely intended to argue the--the entire argument was an invitation to the jury to speculate." Id. at 1078.

The district court's comments do not demonstrate partiality. In fact, the court refrained from interrupting what appeared to be improper or misleading argument to avoid prejudice to the defendant. The record does not support the argument that the trial judge's conduct was improper or that he was biased against the accused.

AFFIRMED.