Unpublished Disposition, 911 F.2d 739 (9th Cir. 1988)

MEMORANDUM^* 

Jonathan New appeals his conviction of conspiracy to distribute cocaine. Jack Fred McFarland appeals his conviction of conspiracy to distribute, distribution of, and use of a communication facility to distribute cocaine. We affirm.

FACTS

In late December 1987, a confidential informant told Drug Enforcement Administration agent Greg Gassett that Jack Fred McFarland, a prisoner in state custody in Washington, had claimed he could arrange for Patrick Grady, a cocaine dealer, to deliver large quantities of cocaine to anyone whom McFarland recommended. At Gassett's direction, the informant told McFarland that he knew someone who was interested in buying kilogram quantities of cocaine. McFarland told the informant to tell his "contact" to visit Grady, who was also in state custody. Gassett, using the name "Greg Greene," visited Grady on January 2, 1988, and told him that he was interested in procuring two kilograms of cocaine. Grady promised to set up the deal.

McFarland called Gassett within hours of the agent's first meeting with Grady. McFarland told Gassett that Gassett could distribute some of the cocaine to several of McFarland's customers. McFarland gave Gassett the telephone number of a customer named "Jon." The number was subscribed to by Jonathan New. Gassett and McFarland agreed to split any profit Gassett made on the sale of the cocaine.

During the month of January 1988, Gassett met with Grady at the jail four times and had numerous phone conversations with McFarland and Grady to finalize the two-kilogram transaction. Gassett called New on January 7 and again on January 14, to discuss the possible sale of a full kilogram of cocaine. Gassett told New that he was McFarland's associate. New mentioned that he had talked to McFarland's girlfriend, Terrie Raphael, about obtaining a kilogram, and that he had supplied heroin to Raphael to be delivered to McFarland. On January 30, Gassett obtained six ounces of cocaine from Ronald Sierra, the brother-in-law of Mike Santos, Grady's source. On February 1, 1988, Gassett obtained one kilogram from Sierra. Raphael took Gassett to New's home on February 1, where New agreed to buy a kilogram and have the money at his house on February 4.

McFarland, New, Grady, Sierra, Raphael, Santos, and Gary Tripp, a go-between, were arrested on February 4, 1988. A subsequent search of New's home produced McFarland's phone number, a drug ledger, and a letter written to "Jack" and referring to "Terrie Raphael." A search of McFarland's jail cell produced Gassett's phone number and New's name and phone number, along with correspondence from Grady.

PROCEDURE

All seven coconspirators were charged in a superseding indictment on March 17, 1988. New and McFarland were charged with one count of conspiracy to distribute cocaine under 21 U.S.C. § 846 (1982). McFarland was also charged with two counts of distribution of cocaine under 21 U.S.C. § 841(a) (1) (1982) and 18 U.S.C. § 2, as well as six counts of unlawful use of the telephone and mails to facilitate the conspiracy to distribute cocaine, under 21 U.S.C. § 843(b) (1982). A jury found New and McFarland guilty of all charges on July 7, 1988. McFarland was sentenced to twenty years imprisonment and four years supervised release. New was sentenced to ten years imprisonment.

DISCUSSION

New asserts that the district court erred when it revoked his bail without a hearing and placed him in custody on the first day of trial. The court's stated reason for the revocation was to ensure that New would get medical treatment for his methadone withdrawal.

This question is moot. New "has been convicted and sentenced to prison. The question whether he was entitled to be free from governmental restraint during his trial is now quite moot. Therefore, addressing the merits ... would merely produce an advisory opinion." United States v. Halliburton, 870 F.2d 557, 562 (9th Cir.), cert. denied, 109 S. Ct. 3227 (1989). New alleges no prejudice from the bail revocation that would justify appellate review. See id. at 558.

New contends that on the second day of his trial, during which the jury was selected, he was unable to participate or assist his counsel because of tranquilizers administered to him by jail medical personnel. New alleges he therefore was deprived of his constitutional right to a fair trial.

On the first day of trial, during which the court heard pretrial motions, New's counsel asked the court to waive New's presence for the afternoon because New was ill. New was on a methadone maintenance program and had not obtained his dose that morning. His withdrawal symptoms included vomiting blood. The court responded by revoking New's bail for the stated purpose of ensuring medical treatment. Later that afternoon, the court reported that New had been seen by medical personnel and would appear the next day. The court continued the trial until New could attend.

The next morning, June 28, 1988, New was brought into court. His counsel indicated that New's condition had not improved and moved for a severance. The marshal stated that there was no medical opinion as to whether New could stand trial, and that he had been given medication to calm him. The prosecution asked that the defense present proof of New's condition and of his medical needs, and after discussion of New's methadone needs the court proceeded to select the jury.

After the jury selection, New's counsel reported that he had spoken to the jail medical technician. The technician had indicated that New's symptoms resulted from methadone withdrawal, and that New had been given tranquilizing drugs the afternoon and night of the day before, and again that morning. New's counsel moved for severance, stating that his client was unable to participate in the trial. The court responded:

The Court has observed the witness from the moment he came in the courtroom. He appears to the Court to be alert. He comes and goes for no visible reason to the Court. He seems alert at certain times. I think he is in a situation that he can continue with the trial. He's still in the custody of the marshals pending all recesses. The motion is denied.

The next day, June 29, New's counsel again raised the issue of New's state of health, asking for a recess and a transportation order to get New to a doctor for a medical report. The court denied the request. The prosecutor then pointed out that New's doctor was willing to come to the jail after hours. No medical report whether New was able to participate at trial was ever presented to the court.

New claims on appeal that he was denied his right to be present at all the stages of his trial. Because he was physically present, despite his alleged inability to participate, his claim is close to a contention that he was not competent to stand trial, at least on June 28, 1988.

Fed. R. Crim. P. 43(a) provides that a defendant "shall be present ... at every stage of the trial including the impaneling of the jury." See United States v. Bordallo, 857 F.2d 519, 522 (9th Cir. 1988), cert. denied, 110 S. Ct. 71 (1989). If New's condition was such that he was not "present" on the 28th, that might constitute a violation of due process. See id. at 523. "However, even if the error amounted to a due process violation, the 'violation of a defendant's due process right to be present at all stages of trial is subject ... to the harmless error rule.' " Id. (quoting United States v. Frazin, 780 F.2d 1461, 1469 (9th Cir.), cert. denied, 479 U.S. 844 (1986)). New does not indicate what, if any, prejudice resulted from his alleged inability to participate. The court's denial of a severance motion was not an abuse of discretion. See United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987) (denial of severance motion reviewed for abuse of discretion; defendant must show clear prejudice and violation of substantive right), cert. denied, 109 S. Ct. 513 (1988).

If the district court's ruling is construed as a finding that New was competent to stand trial, we will reverse that determination only if it is clearly erroneous. Guam v. Taitano, 849 F.2d 431, 432 (9th Cir. 1988). The court concluded from its own observation that New was alert and able to participate in the proceedings. There was no medical evidence to the contrary before the court. The decision to proceed was not clearly erroneous.

New alleges that he was entitled to an instruction that if the jury found that he conspired only with Agent Gassett, he could not be guilty of conspiracy. He also requested an instruction stating that evidence that a defendant discussed the purchase of cocaine, or agreed to buy cocaine, from a government agent is not alone sufficient to establish a conspiracy to distribute cocaine or the defendant's membership in the conspiracy.

If a defendant's proposed instruction concerning his theory of the case is supported by law and has some foundation in the evidence, failure to give the instruction is reversible error. United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir. 1984). The evidence supporting the proposed instruction " 'may be weak, insufficient, inconsistent or of doubtful credibility.' " Id. at 1200 n. 7 (emphasis deleted) (quoting United States v. Sielaff, 615 F.2d 402, 403 (7th Cir. 1979), cert. denied, 446 U.S. 940 (1980)).

The taped transcripts of New's telephone conversations with Gassett include evidence that New asked "did Terry [sic] [Raphael] tell you that I'm interested in a, in a kilo of the white"; New had talked to Raphael about Gassett's drug transactions; he understood references to Jack (McFarland) and Pat (Grady); and he had had prior dealings with both ("There there [sic] both pretty straight business men usually."). Evidence seized from New's home included a letter from New to McFarland during the time frame of the conspiracy in which New mentioned Raphael. The only evidence that New had not conspired with any other members of the conspiracy was his denial at trial that he had ever agreed to become part of any "drug selling organization." Under these circumstances, there was no evidentiary foundation for the proposed instruction concerning conspiracy with only a government agent. See United States v. Wagner, 834 F.2d 1474, 1485-88 (9th Cir. 1987) (trial court may refuse to give instruction on defendant's theory of case where only the "merest scintilla of evidence" exists to support it, even where defendant testified at trial).

This denial that he ever entered into any agreement to distribute drugs is also the basis of New's argument that he was merely discussing the purchase of cocaine for personal use with no intent to distribute, and therefore was entitled to an instruction that agreeing to buy cocaine from a government agent is not sufficient to show involvement in a conspiracy to distribute. It is true that the mere purchase of a controlled substance is not enough to show a conspiracy. United States v. Bailey, 607 F.2d 237, 245 (9th Cir. 1979), cert. denied, 445 U.S. 934 (1980). As stated above, however, there was ample evidence that New was aware of the involvement of a number of the other conspirators in the distribution scheme.

In his January 14 telephone conversation with Gassett, New also referred to apparent plans of his own to distribute the cocaine to unknown others, stating "if I can get ... my business associates together and give them a days notice or something like that and then we can probably handle a kilo"; "it wouldn't take more than three or four phone calls ... to get rid of a pound at that price.... And if it turns out to be ... ether based Peruvian flake then I'm sure my people would take all of it."

Finally, the amount of cocaine involved--one or two kilograms--is inconsistent with personal use. See United States v. Savinovich, 845 F.2d 834, 838 (9th Cir.) (intent to distribute may be inferred from amount of drugs seized), cert. denied, 109 S. Ct. 369 (1988); United States v. Manzella, 791 F.2d 1263, 1265 (7th Cir. 1986) (kilo of cocaine is large quantity requiring large number of people to get it to market, illustrating necessity for conspiracy). The district court did not abuse its discretion by refusing to give the "mere customer" instruction.

D. Admission of evidence seized from New's home

New objects to the admission of testimony from Tacoma police officers William Foster and Karen Kelly related to a search of New's home in September, 1987, three months before the charged conspiracy began. The district court admitted the testimony under Fed.R.Evid. 404(b) as evidence of other crimes or bad acts. The court properly instructed the jury that the evidence could be considered only to show New's state of mind.

We review the district court's decision to admit evidence of other crimes for an abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987). New argues that the evidence did not meet the fourth requirement for admission under the test set forth in United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982): "the prior criminal conduct must be introduced to prove an element of the charged offense that is a material issue in the case." Id. at 1110.

Scales and guns are probative of an intent to distribute drugs, rather than merely to possess them for personal use. Savinovich, 845 F.2d at 837. A central issue at trial was whether New merely planned to buy cocaine for personal use, or participated in the conspiracy to distribute. The district court did not abuse its discretion in admitting the evidence.

New also argues that the probative value of the evidence was outweighed by its prejudicial effect. This court reviews the balancing of probative value and prejudicial effect for an abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989). The evidence was not so unfairly prejudicial that its admission was reversible error despite its probative value. See United states v. Kinslow, 860 F.2d 963, 968 (9th Cir. 1988), cert. denied, 110 S. Ct. 96 (1989). The district court acted within its discretion.

New objects that he improperly was denied a suppression hearing to determine the constitutionality of the September 1987 search. New never expressly requested a suppression hearing. On the first day of trial, he moved for exclusion of all evidence of the search of his home, in part on the ground that the search was without a warrant in violation of the fourth amendment. He repeated that objection in court, stating "I think that before this evidence is offered in this case I have a right to have the Court review the propriety of the search to determine whether or not the evidence was obtained legally and, therefore, would be admissible on Fourth Amendment grounds." Although New had notice five days before trial that the government intended to introduce evidence related to the search, he claimed that he was not notified that the evidence would be used. His later objections to the evidence were premised not on fourth amendment grounds but on the evidentiary grounds discussed above.

If we view New's objection to the search as a motion to suppress, it was not sufficient to require an evidentiary hearing. It is within the district court's reasoned discretion whether an evidentiary hearing is appropriate, and one is required only "if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in issue." United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986). New's written objection was vague to the point of omitting the date of the search challenged.

After the government rested its case, New attempted to introduce the testimony of William Parkhurst, a Tacoma police sergeant, regarding a burglary of New's residence following the 1987 search. New claimed that the burglary showed that the drug paraphernalia and arms seized during the search belonged to someone else, who burgled his residence to get them back. The district court ordered a proffer of the proposed testimony outside the presence of the jury. Parkhurst testified that a man found within the fenced area of New's home was detained and then released, and that items in the man's vehicle (none of which were drug paraphernalia) were taken into safekeeping. Following the prosecution's objection to the testimony, the court excluded it as irrelevant.

We review decisions regarding the relevance of evidence for an abuse of discretion. Kessi, 868 F.2d at 1107. The relevance of this testimony is questionable. A burglary of New's home does not tend to show that the drug paraphernalia and arms belonged to someone else. No abuse of discretion occurred.

New contends that the district court should not have admitted as coconspirator statements evidence of telephone conversations between McFarland and Gassett about New. The conversations occurred on January 2, 8, 10, 14 and 16, 1988. At trial, New objected only to the January 2 call made before Gassett's first conversation with new on January 7, on the ground that it occurred before New could have been a member of the conspiracy. He also made a general objection to the reliability of McFarland's statements. For the first time, New now argues that the statements were improperly admitted because the government failed to establish that New ever became a member of the conspiracy.

This court will not review evidentiary disputes not brought to the attention of the district court, unless they constitute plain error affecting substantial rights. Fed.R.Evid. 103(d). No error appears here. To admit coconspirator's statements, the government must establish by a preponderance of the evidence that a conspiracy existed and that the defendant was connected to it. United States v. Zavala-Serra, 853 F.2d 1512, 1514 (9th Cir. 1988) (decision that conspiracy exists reviewed for clear error). There was more than enough evidence before the district court without the challenged conversations to show New's involvement in the conspiracy by a preponderance of the evidence.

In his conversations with Gassett, Grady had identified Gary Tripp as a go-between who arranged cocaine transactions for him. Tripp was arrested for his role in the conspiracy and pled guilty. He testified at the end of the government's case. New claims Tripp's testimony violated Fed.R.Evid. 403 because it was more prejudicial than probative. We review the district court's balancing under Rule 403 for an abuse of discretion. Kessi, 868 F.2d at 1107.

Tripp testified that a few months before the charged conspiracy began, he went to the house of a man named Elmer to buy heroin for Grady and was waiting for the drug to arrive. New arrived and went into the house with Elmer. New left after five or ten minutes, and Elmer immediately gave Tripp the heroin. New objected to Tripp's testimony as unduly prejudicial.

The evidence tended to show New's involvement, with some of the coconspirators, in the distribution of heroin shortly before the conspiracy began. It was therefore relevant to the heavily contested issue whether he intended to distribute cocaine. The district court did not exceed the "wide latitude" it had to admit the evidence. Kinslow, 860 F.2d at 968.

New challenges the prosecutor's remarks in her closing argument to the jury that " [t]hese defendants ... didn't care whether the cocaine ended up in the hands of high school students ... or whether it ended up in the hands of people who were addicted to cocaine or on their way to be addicted to cocaine." New objected at trial. We review for an abuse of discretion the district court's decision to allow the comments. United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir. 1986).

There was evidence at trial that high school students were among those identified as potential customers in the drug records seized from Ronald Sierra's home. It was not an abuse of discretion to allow the prosecutor's reference to this in closing. Prosecutors may strike "hard blows" in closing arguments based on the testimony and its inferences. United States v. Birges, 723 F.2d 666, 671-72 (9th Cir.), cert. denied, 469 U.S. 863 (1984).

New also moved for a mistrial on the basis of the prosecutor's statement that a conviction would be one of the victories with which "we will, in fact, win the war on drugs." This court reviews the denial of the motion for an abuse of discretion. United States v. Segal, 852 F.2d 1152, 1155 (9th Cir. 1988). This undramatic reference to efforts to combat the drug problem was not improper, and no abuse of discretion appears in the decision not to grant a mistrial. See United States v. Dominguez, 835 F.2d 694, 700 (7th Cir. 1987) ("A prosecutor may stress to the jury the seriousness of drug charges and comment on the gravity of this country's drug problem ... [and] the threat of drugs to our society as a whole.")

Finally, New argues that there was insufficient evidence to support his membership in the conspiracy. The evidence is sufficient if, 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. United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988). A rational jury could have found New's guilt beyond a reasonable doubt on this record. Nor did the cumulative effect of prejudicial errors at New's trial make it unfair. See United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988).

McFarland contends that the district court judge erred in refusing to give three proposed instructions.

McFarland first claims the judge should have given his proposed instruction on multiple conspiracies, which provided that if he was unaware of "the essential features and scope of the overall conspiracy and [of its] common goal" he could not be considered a member of the single, overall conspiracy. The evidence clearly establishes that McFarland was aware of the scope and goal of the conspiracy to distribute cocaine. In the absence of evidence supporting multiple conspiracies, the judge did not err in refusing the instruction. See United States v. Linn, 880 F.2d 209, 218 (9th Cir. 1989).

McFarland next assigns as error the failure of the district court to give an instruction on the rule that if the jury found that he "conspired" only with Gassett, a government agent, it could not find him guilty of conspiracy. See de Bright, 742 F.2d at 1197, 1200. There was no basis in the evidence for this theory. Even in the portions of the reporter's transcript cited by McFarland, there is evidence that Gassett and McFarland discussed the involvement of at least one other person, Grady.

Finally, McFarland objects to the district court's failure to give an instruction that the government must show beyond a reasonable doubt that he knew or had reason to know the scope of the criminal enterprise, and that his benefits depended on the success of the entire venture. The district court did instruct the jury "you must find that [McFarland] joined the conspiracy; and did so knowing of the plan to distribute cocaine and intending to help carry that plan out." The rejected instruction appears to be not a distinct theory of the case but a modification of the language describing the elements of a conspiracy. McFarland cannot insist upon particular language as long as the district court's instructions were fair and adequate. United States v. Soulard, 730 F.2d 1292, 1303 (9th Cir. 1984). To the extent that McFarland's proposed instruction suggests that he must have anticipated a benefit from the conspiracy, it is inaccurate. See United States v. Noah, 475 F.2d 688, 697 (9th Cir.) (defendant may be guilty of conspiracy without profiting from or having any financial stake in conspiracy), cert. denied, 414 U.S. 1095 (1973).

McFarland objects to statements made by the prosecutor in her closing argument about the cocaine ending up in the hands of high school students. As discussed above at page 15, the references to the eventual destination of the cocaine were based on the evidence and it was not an abuse of discretion to allow them.

After both the prosecution and the defense rested their cases, McFarland joined in a motion for a judgment of acquittal. The motion claimed that the government had failed to connect the cocaine exhibits that Gassett testified he obtained from Sierra, and on which Gassett performed a field test, with the substance that the DEA chemist retrieved from the DEA evidence vaults for later testing. McFarland claims that as a result the evidence that Gassett had received cocaine was insufficient.

This court reviews the denial of a motion for judgment of acquittal under Fed. R. Crim. P. 29 "to determine whether, viewing the evidence in the light most favorable to the Government, there was substantial relevant evidence produced from which the jury reasonably could have found the defendant guilty beyond a reasonable doubt." United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988). Agent Gassett testified that the cocaine introduced at trial was the cocaine he received from Sierra and tested in the field. The DEA chemist also testified that he tested the substances introduced at trial and that there was no evidence of tampering. There was ample evidence from which a reasonable jury could have found beyond a reasonable doubt that the substance introduced at trial was the cocaine Gassett received from Sierra.

CONCLUSION

New's and McFarland's convictions are AFFIRMED.