Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

MEMORANDUM^** 

Hernandez-Leon appeals his conviction for conspiracy to distribute and distribution of cocaine. He alleges that he was denied his right to a fair trial due to ineffective assistance of counsel, failure of the court to grant a continuance and failure to rule on a motion in limine that certain evidence was inadmissible. He also challenges the sufficiency of the evidence. We affirm the conviction.

Hernandez-Leon accompanied Seijo-Borgo to sell cocaine to Palmer, an informant. After dropping Seijo-Borgo off, Hernandez-Leon drove Seijo-Borgo's car to the scene of the transaction and waited while the sale took place. Upon completion of the sale, Seijo-Borgo and others were arrested. Cocaine was found in the package exchanged, in the sock of a co-conspirator, Wing, and in the glove compartment of the car. Hernandez-Leon was arrested although no cocaine or money was found in his possession. Seijo-Borgo and a fourth co-conspirator, Lewis, both later identified Hernandez-Leon as the source of the cocaine.

Seijo-Borgo and Wing pleaded guilty. Separate trials were held for Hernandez-Leon and Lewis, and both were convicted. Many of the same witnesses testified at the two trials. However, all the transcripts from the Lewis trial were not ready by the time the Hernandez-Leon trial commenced. Hernandez-Leon's attorney requested a continuance and the court and government counsel agreed to delay the testimony of the witnesses whose transcripts had not been received.

At trial, Seijo-Borgo and Wing testified that a conspiracy existed. Seijo-Borgo further testified that Hernandez-Leon was the source of the cocaine. Other witnesses testified that Hernandez-Leon had made threatening phone calls regarding overdue drug debts, and that this transaction was intended to raise funds with which to pay drug debts. Hernandez-Leon did not testify.

Hernandez-Leon first argues that he received ineffective assistance of counsel. A claim of ineffective assistance is properly brought as a collateral attack on a conviction under 28 U.S.C. § 2255. United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987). A conviction will be overturned on direct appeal for ineffective assistance only if counsel was so inadequate that allowing representation to continue was plain error. Id., citing United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978). Our review of the record does not reveal a lack of competence of this magnitude nor do we express any opinion on the merits of any collateral attack made in the future.

Hernandez-Leon next argues that he did not receive a fair trial because his request for a continuance was denied. We reverse the denial of a continuance only if it constitutes clear abuse of discretion. United States v. Mitchell, 744 F.2d 701, 704-05 (9th Cir. 1984). Here the court agreed to delay the testimony of witnesses whose trial transcripts he had not yet received. After reading the transcripts, Hernandez-Leon's attorney said he was able to go ahead. A statement from the defendant's attorney that he is ready for trial weighs heavily against finding that the court abused its discretion by allowing the trial to proceed. Morris v. Slappy, 461 U.S. 1, 12 (1983). We find no abuse of discretion here.

Hernandez-Leon next argues that the court erred by admitting evidence of a threat he made to Wing after Wing testified. He argues that this evidence was highly prejudicial and inadmissible. Decisions regarding the admissibility of evidence lie within the trial court's discretion. United States v. Jackson, 845 F.2d 880, 884 (9th Cir.), cert. denied, 109 S. Ct. 149 (1988). Here, the threat was made in the presence of Seijo-Borgo, who had yet to testify. Such conduct is admissible to show consciousness of guilt. United States v. Ochs, 595 F.2d 1247, 1260 (2d Cir.), cert. denied, 444 U.S. 955 (1979) (attempt to bribe police officer to change testimony admissible as evidence of consciousness of guilt). The trial court did not abuse its discretion in allowing this evidence to be admitted.

Hernandez-Leon next argues that the court erred by failing to rule that evidence of a prior conviction was not admissible under Fed.R.Evid. 609 and 404. He argues that although he did not testify, and evidence was never admitted, the court's failure to rule cast a "cloud of uncertainty" over the trial. If a defendant does not testify, the harm from an in limine ruling regarding admissibility of impeachment evidence under Rule 609 is wholly speculative and the court's ruling is not reviewable. Luce v. United States, 469 U.S. 38, 40-43 (1984); United States v. Behanna, 814 F.2d 1318, 1321 (9th Cir. 1987). An argument that the defendant might have chosen to testify if the ruling had been different is irrelevant. Luce, 469 U.S. at 42. By the same reasoning, under Rule 404(b), evidence that was never presented during trial cannot have been prejudicial. We find no reversible error here.

Finally, Hernandez-Leon argues that there was insufficient evidence to convict him of conspiracy because he was a mere bystander. On a claim of insufficiency, we review the evidence in the light most favorable to the government. United States v. Luttrell, 889 F.2d 806, 809 (9th Cir. 1989). We must confirm the conviction if any rational jury could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Luttrell, 889 F.2d at 809. The elements of conspiracy are "an agreement to engage in criminal activity, one or more overt acts taken to implement the agreement, and the requisite intent to commit the substantive crime." Id. We have held that once the evidence establishes that a conspiracy exists, "only a slight connection to the conspiracy is necessary to convict a defendant of knowing participation in it." United States v. Guzman, 849 F.2d 447, 448 (9th Cir. 1988). Two witnesses testified that a conspiracy existed. Seijo-Borgo testified that Hernandez-Leon was the source of the cocaine and intended it to be used in this transaction. A rational jury could have found the necessary "slight connection" to convict Hernandez-Leon.

The judgment of the district court is

AFFIRMED.