Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 911 F.2d 739 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Juanita MEDRANO, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jose Quintena LOPEZ, Defendant-Appellant.

Nos. 89-30296, 89-30297.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 6, 1990.* Decided Aug. 22, 1990.

Before EUGENE A. WRIGHT, BEEZER and TROTT, Circuit Judges.


MEMORANDUM** 

A jury convicted defendants Medrano and Lopez of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b) (1) (B), and possession with intent to distribute 500 or more grams of cocaine, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B). They appeal these convictions.

I. MEDRANO'S REQUESTED INSTRUCTION ON DURESS

Medrano claims she was entitled to an instruction on her defense of duress. "For an instruction on a particular defense to go to the jury, the defendant must present sufficient evidence to raise triable issues of fact on the elements of that defense." United States v. Charmley, 764 F.2d 675, 676 (9th Cir. 1985). The three elements of duress are: (1) an immediate threat of death or serious bodily harm; (2) a well-grounded fear that the threat will be carried out; and (3) lack of a reasonable opportunity to escape the threatened harm. United States v. Beltran-Rios, 878 F.2d 1208, 1213 (9th Cir. 1989).

Medrano failed to make a prima facie case on the first element of the duress defense. In discussing her role in the drug transactions, she testified that she was "scared" for herself and her unborn child because she had seen Montoya, a co-defendant, with weapons, she "knew what he was into," and she "knew he was dangerous." [Medrano ER 6 at 123, 124, 139] She also said that Montoya "could have killed me" or "could have beat me up." [Id. at 127]

She failed to present, however, any evidence or testimony that Montoya threatened her with immediate death or serious bodily harm in forcing her to commit the specific offense for which she was convicted. In fact, she testified that she put this deal together as a "favor" to repay Montoya for cocaine she had received from him, and that she did not see him carrying a weapon on the day of the crime. [RT 130, 133]

Because she failed to raise a triable issue on an element of the defense, she was not entitled to a jury instruction on duress.

In response to the government's motion in limine, the court excluded evidence of a 1974 kidnapping conviction of David Palmer, a government informant, under Fed.R.Evid. 609(b).

Lopez1  does not argue on appeal that the court erred in excluding the prior conviction under Rule 609(b). Instead, he argues that Rule 609(b) is inapplicable because he was seeking to introduce evidence of Palmer's lies to DEA agents about the conviction, not evidence of the conviction itself. [Lopez Blue Brief at 6] He argues that the exclusion of this evidence, which may have impeached the informant's credibility, violated his Sixth Amendment right to confrontation.2 

"A trial court's limitation on the scope of cross-examination and its evidentiary rulings are reviewed for abuse of discretion." United States v. Whitworth, 856 F.2d 1268, 1283 (9th Cir. 1988), cert. denied, 109 S. Ct. 1541 (1989). In applying the Sixth Amendment, " [t]he trial court does not abuse its discretion [in restricting cross-examination] as long as the jury receives sufficient information to appraise the biases and motivations of the witness." United States v. Feldman, 788 F.2d 544, 554 (9th Cir. 1986), cert. denied, 479 U.S. 1067 (1987); see also United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir. 1982). The right to cross-examine adverse witnesses is especially important when the testimony of a key government witness is at issue. United States v. Lopez, 885 F.2d 1428, 1438 (9th Cir. 1989), cert. denied, 110 S. Ct. 748 (1990).

We do not reach the issue whether the court abused its discretion in refusing to admit the evidence of Palmer's prior conviction because we find that any error was harmless beyond a reasonable doubt. See Coleman v. McCormick, 874 F.2d 1280, 1288-89 (9th Cir.) (en banc) (in evaluating errors of constitutional magnitude, the government must show that they were harmless beyond a reasonable doubt), cert. denied, 110 S. Ct. 349 (1989). The evidence presented to the jury presented by witnesses other than Palmer indicates that (1) Lopez at first appeared in the hotel parking lot, and then quickly departed [RT at 72-74] because he recognized police surveillance [RT at 131, 142]; (2) he was then seen by DEA agents carrying a white plastic bag like the one containing cocaine later found in the trunk of his car [RT at 100-02]; (3) the trunk of the car was later opened using keys taken from his pants pocket [RT at 79-81]; and (4) after his arrest, he admitted that he had received the cocaine from a friend [RT at 106-08]. The evidence of guilt was overwhelming.3 

We also find that any error as to Medrano was harmless beyond a reasonable doubt.

AFFIRMED.

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 1

Medrano's brief adopts Lopez's argument

 2

Lopez makes only a constitutional argument. He does not argue that the prior act of lying by Palmer is a specific instance of conduct that may be admissible under Rule 608(b). We therefore do not discuss that issue

 3

Moreover, Palmer was questioned at trial as to his credibility and bias. He testified on cross-examination that he had used drugs in violation of his agreement with DEA agents [RT at 57-58] and that he was paid based on the quality of information he supplied to those agents. [RT at 56-57]

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