Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1990)

MEMORANDUM^* 

Defendant Steven Wear appeals his conviction on conspiracy to distribute cocaine charges. We affirm.

DISCUSSION

The admission of testimony of prior drug sales between Wear, Wahlstrom and Rothouse was not error. Those prior drug transactions were direct evidence of the conspiracy. As such, the prior drug transactions are not 404(b) prior uncharged misconduct evidence because they constitute part of the conspiracy itself. Further, the prior drug sales were highly probative of the conspiracy and their admission did not violate Federal Rule of Evidence 403. The court's limiting instruction at the close of trial with regard to the prior acts limited the jury's use of this testimony, and was not error. See United States v. Marabelles, 724 F.2d 1374, 1382-83 (9th Cir. 1984).

There was sufficient evidence to conclude that Wear was involved in the conspiracy. An uncorroborated accomplice's testimony, as was used here, is enough to sustain a conviction unless the testimony is incredible or unsubstantial on its face. United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987).

Wear's acquittal on the distribution of cocaine charge does not constitute a finding that Wear did not perform other overt acts in furtherance of the conspiracy to distribute cocaine. See United States v. Guzman, 849 F.2d 447, 449 (9th Cir. 1988).

The judge's restriction of Wear's cross-examination of Wahlstrom and Rothouse regarding their other sources of cocaine did not violate Wear's confrontation clause rights because the jury would not have received a significantly different impression of Wahlstrom's credibility from further testimony. Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986). Further, the restriction of cross-examination did not violate United States v. Brady, 561 F.2d 1319 (9th Cir. 1977), because Wear's counsel was allowed to cross-examine both Wahlstrom and Rothouse as to their prior drug dealings with other sources. Only the name of Kirkpatrick, who had previously supplied drugs to Wahlstrom, was kept from the jury. Thus, Wear did present his defense theory that Wahlstrom framed him to prevent injury from his real source of drugs.

The prosecution's failure to give the names of Kirkpatrick and Johnny Wu, a caller on Wahlstrom's answering machine tape, to the defense did not violate Brady v. Maryland, 373 U.S. 83, 87 (1967), because there is no showing that Kirkpatrick or Wu could provide exculpatory evidence and no Brady v. Maryland violation occurs if the evidence is disclosed at a time when it is still of value to the defense, as it was here. United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988).

The delay in playing the rest of Wahlstrom's answer machine messages did not unduly restrict Wear's right of cross-examination under United States v. Brady, nor did it violate Brady v. Maryland as the delay was not material to guilt or punishment.

A new trial was not required here because the disclosure of the withdrawal of the 851 information at trial would not have affected the outcome of the trial. See Bagley v. Lumpkin, 473 U.S. 667, 682 (1985).

AFFIRMED.