Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

MEMORANDUM^* 

Randall Evan Radcliff appeals his conviction and sentence for possessing with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1). He assigns three errors: (1) the district court refused to give his requested jury instruction on "mere presence"; (2) the court permitted, over his timely objection, testimony that he had refused to speak with police; and (3) the prosecutor improperly vouched for the credibility of Roberta Ellis, the chief government witness.

Radcliff also challenges his sentence on the grounds that the district court erred in refusing to reduce his offense level for acceptance of responsibility, and in increasing his offense level for possession of a firearm and for management of criminal activity. We affirm the conviction and sentence.

Upon executing a search warrant, police officers found Radcliff and his codefendant, Roberta Ellis, sleeping in the living room of an apartment listed in the names of Ellis and Kim Priestley.

After reading the search warrant to Radcliff and Ellis, Detective Lewis attempted to interview Ellis, but Radcliff told Ellis not to say anything and Ellis complied. Radcliff also refused Lewis's request to interview him.

A search of the downstairs rooms of the apartment revealed three baggies of cocaine, some cash, a computer, a pager, a cellular telephone, a magazine entitled "Cocaine, Consumer's Handbook", and a driver's license bearing Radcliff's picture but the name of Kenneth Williams. In a kitchen drawer, police found a list of names and pager numbers in Radcliff's handwriting. A shotgun, two rifles, three pistols, and ammunition were found in a downstairs closet.

A search of an upstairs bedroom revealed a set of scales with cocaine residue, a baggie of cocaine, a razor blade, three bottles of Manitol, one bottle of petroleum ether, and some cut-up magazines. The bedroom closet contained a loaded shotgun, a 740-gram cake of cocaine, a safe holding over $17,000 in currency, and Radcliff's driver's license (bearing a different address than the apartment being searched).

Radcliff and Ellis were indicted on one count each of possession with intent to distribute over 500 grams of cocaine, in violation of 21 U.S.C. § 841(a) (1); and use of a firearm in connection with a drug trafficking charge, in violation of 18 U.S.C. § 924(c) (1).

Ellis pleaded guilty to the lesser charge of simple possession of cocaine, pursuant to a plea agreement with the government in which she agreed to testify against Radcliff. Ellis's testimony formed the heart of the prosecution's case. At Radcliff's trial, Ellis testified that she lived in the apartment between September and November of 1988. Radcliff stayed with her "when he came down." Ellis said she was unemployed and paid for the apartment with proceeds from the sale of drugs. She said Radcliff was also unemployed during this period and got money from selling drugs.

Ellis said she had observed Radcliff sell cocaine and had assisted him. Ellis also testified that Radcliff owned the gun in the bedroom closet and used it for hunting and for target practice. She said that some of the guns found in the downstairs closet also belonged to Radcliff and that she had observed Radcliff holding the shotgun found in the downstairs closet.

A jury found Radcliff guilty of the possession charge but not guilty of the firearm charge. Following a sentencing hearing, Radcliff was sentenced to 168 months imprisonment plus four years supervised release.

During closing argument, Radcliff's counsel argued to the jury that Radcliff was merely present at Ellis and Priestley's apartment, but did not possess the cocaine. Radcliff's counsel requested the following instruction:

Presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that the defendant committed the crime, unless you find beyond a reasonable doubt that Randy Radcliff was a participant and not merely a knowing spectator.

Whether this court reviews the denial of a requested jury instruction de novo or for an abuse of discretion, see United States v. Knott, 894 F.2d 1119, 1121 (9th Cir. 1990) (citing conflicting cases), we find no reversible error in this case. The district court has considerable latitude in tailoring jury instructions. United States v. Sotelo-Murillo, 887 F.2d 176, 182 (9th Cir. 1989). Jury instructions are reviewed as a whole, and it is not error for the court to reject a proposed instruction if the other instructions, viewed in their entirety, cover the defendant's theory. United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987).

Radcliff's proposed jury instruction on mere presence correctly states the law. "Mere presence" is a recognized defense to a charge of possession of contraband. United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1988); United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985) ("Mere proximity to contraband, presence on property where it is found, and association with a person or persons having control of it are all insufficient to establish constructive possession.")

There is no error in refusing the instruction, however, unless there is "some foundation in the evidence" to support giving a mere presence instruction. Sotelo-Murillo, 887 F.2d at 178 (citations omitted); United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984).

Radcliff points to the following evidence as showing that he was merely present at the scene of the crime and did not possess the cocaine: (1) the apartment was listed by the Springfield Utility Board in the names of Ellis and Priestley; (2) a rental receipt indicated that Ellis had paid the rent for the month of November, 1988; and (3) Radcliff's driver's license bore an address different from that of the apartment being searched.

Other evidence, however, tended strongly to prove that Radcliff's involvement in the cocaine sales scheme went well beyond mere presence. Most notably, police found Radcliff's driver's license underneath a quantity of more than $17,000 in cash in a safe in the upstairs bedroom closet, next to the 740-gram cake of cocaine; and a coded list of names and pager numbers in Radcliff's handwriting. Because this physical evidence tended strongly to prove that Radcliff's involvement went beyond mere presence at the scene, it supplies evidence the lack of which would call for the "mere presence" instruction. In other words, what was found in the apartment showed that Radcliff was not merely present, and the negative evidence showed nothing. Thus, there was no evidence upon which a mere presence instruction could be based.

Radcliff contends for the first time on appeal that the district court erred in permitting the prosecutor to elicit evidence from a police witness that Radcliff declined to permit a police officer to interview him at the time of the search. He argues that this evidence was sufficiently prejudicial so as to constitute plain error. "Plain error is highly prejudicial error affecting substantial rights." United States v. Castro, 887 F.2d 988, 992-93 (9th Cir. 1989). Reversal is required only "to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." Id. at 993 (citations omitted).

At trial, Officer Richard Lewis testified on direct examination that, upon executing the search warrant, he attempted to interview Radcliff. The following dialogue occurred at trial:

Q. Just backing up a little bit, when you first entered the apartment, what did you see?

A. Mr. Radcliff and Roberta Ellis were seated on the couch. They had been handcuffed by the SWAT team, which is the normal procedure....

Q. And what did you do after making--you went upstairs?

A. After my initial interview, I read the search warrant to Mr. Radcliff and Mr. Ellis or Miss Ellis, excuse me. At that point I attempted to interview Mr. Radcliff. He advised me that he didn't want to speak to me at that time.

"The standard for determining if there has been an impermissible comment on a defendant's right to remain silent at the time of his arrest ... is 'whether the statement was manifestly intended or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to [talk].' " United States v. Vera, 701 F.2d 1349, 1362 (11th Cir. 1983), (quoting United States v. Deardon, 546 F.2d 622, 625 (5th Cir.), cert. denied, 434 U.S. 902 (1977)).

Here, however, the prosecutor's question to Lewis cannot be construed as demonstrating a manifest intent to comment upon Radcliff's refusal to be interviewed by Lewis. As Radcliff's brief acknowledges, Detective Lewis's comment was unexpected and nonresponsive to the prosecutor's question whether Lewis went upstairs. Moreover, Lewis's statement was the only time Radcliff's refusal to be interviewed was mentioned, and the prosecutor did not draw attention to the statement by commenting upon it. Defense counsel chose to make no reference to the matter at the time. Accordingly, there was no plain error.

Radcliff contends that the prosecutor improperly vouched for Ellis's credibility by referring to her plea agreement and stating that Ellis testified truthfully, as she had agreed to do.

Because Radcliff did not object to the incidents of vouching, we review only for plain error. United States v. Lew, 875 F.2d 219, 223 (9th Cir. 1989). "Reversal for plain error occurs only in the exceptional situation where it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." United States v. Paris, 827 F.2d 395, 398 (9th Cir. 1987).

"The government may not vouch for the credibility of its witnesses...." United States v. Simtob, 901 F.2d 799, 805 (9th Cir. 1990). "Prosecutorial vouching may occur when the prosecutor either (1) 'place [s] the prestige of the government behind the witness' through personal assurances of the witness's veracity, or (2) suggests that 'information not presented to the jury supports the witness's testimony.' " United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir. 1988) (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)).

The first instance of alleged prosecutorial vouching occurred during the prosecutor's opening statement:

You will hear [Ellis] testify. She has already pled guilty. The government entered into an agreement with her by which she pled guilty to a different count, ... and in return for the Government dismissing these charges, she agreed to testify truthfully, not on behalf of the Government, but to testify truthfully about what she knows about the defendant's activity and about the defendant's distribution of cocaine.

The prosecutor's reference, during her opening statement, to the requirement of truthfulness in Ellis's plea agreement constituted improper vouching. United States v. Shaw, 829 F.2d 714, 716-17 (9th Cir. 1987) (opening statement reference to truthfulness requirement in an accomplice's plea agreement constituted improper vouching), cert. denied, 485 U.S. 1022 (1988). A timely warning from the court could have cured the error, but the defense chose not to call further attention to it.

The second instance of alleged prosecutorial vouching occurred during the prosecutor's direct examination of Ellis:

Q. And that agreement was that you would plead guilty to a crime of simple possession of cocaine and in return for that, you would testify truthfully at the trial here today?

A. Yes.

The prosecutor's reference to the requirement of truthfulness in Ellis's plea agreement during her direct examination of Ellis, before Ellis's credibility was attacked, also constituted improper vouching. See Lew, 875 F.2d at 223-24 (prosecutor's elicitation of testimony, on direct examination, of witnesses' agreements to testify truthfully constituted improper vouching); Wallace, 848 F.2d at 1473-74 (same). But again counsel chose to ignore it.

The final instances of alleged vouching occurred during the prosecutor's closing and rebuttal arguments. In her closing argument, the prosecutor stated:

But the fact of the matter is, [Ellis] had to testify truthfully. She was under oath, and she understood that. And she did testify truthfully.

In her rebuttal argument, the prosecutor stated:

[Ellis] has already entered into a plea. What was this deal with the Government? The deal was what, testify truthfully. She didn't come here to tell you that Randy is pure as the driven snow. She didn't come here to tell you anything but the truth.

The prosecutor's statement during closing argument constituted improper vouching based on the preceding analysis because Radcliff's counsel had not attacked Ellis's credibility.

The prosecutor's references to the plea agreement in her rebuttal argument was invited by defense counsel's closing argument. Radcliff's counsel attacked Ellis's credibility because of the plea agreement: "She's got a reason to lie because it's going to make a difference in what kind of sentence she gets." "References to truthfulness requirements in plea agreements do not constitute vouching when made in response to attacks on the witness's credibility because of the plea agreement." Wallace, 848 F.2d at 1474, citing Shaw, 829 F.2d at 716.

Because Radcliff's counsel failed to object to the incidents of vouching, we conclude that the improper vouching, viewed in the context of the entire record, does not amount to plain error.

Radcliff contends that the district court erred in not reducing his base offense level by two points for acceptance of responsibility. This contention lacks merit.

Whether a defendant has accepted responsibility for a crime is a question of fact which this court reviews for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). The district court's determination will not be disturbed "unless it is without foundation." United States v. Smith, No. 89-50321, slip op. 6051, 6052 (9th Cir. June 12, 1990) (quoting U.S.S.G. Sec. 3E1.1, Application Note 5).

A defendant is entitled to an offense-level reduction " [i]f [he] clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct...." U.S.S.G. Sec. 3E1.1. The defendant has the burden of showing acceptance of responsibility. United States v. Howard, 894 F.2d 1085, 1090 n. 4 (9th Cir. 1990).

Radcliff contends that the following statement he made at the sentencing hearing just before the district court imposed sentence indicates an acceptance of responsibility:

[T]his really wasn't the way the deal was made out to appear. I admit that I was selling drugs, but I wasn't selling drugs to manage people or control people or to be a big drug king pin, or anything like that, it was--I was just trying to survive. I think I got caught up in the same way a lot of other people got caught up in it. It's a fact that so many people bring to your attention that you can make money off of it, and they expose you to it.... I know it was against the law, I know it was wrong.

Radcliff made this statement after his counsel had objected to the court's failure to reduce his sentence for acceptance of responsibility, and after the court had ruled on the objection. Radcliff's counsel did not renew her objection after Radcliff made the above statement.

Radcliff's statement does not "clearly demonstrate [ ] a recognition and affirmative acceptance of personal responsibility for his criminal conduct...." U.S.S.G. Sec. 3E1.1. On the contrary, his statement conveys that he believes he is not responsible for his conduct because he "was just trying to survive" and "got caught up in the same way a lot of other people got caught up in [selling drugs]." Cf. United States v. Kane, 887 F.2d 568, 573-74 (5th Cir. 1989) (no acceptance of responsibility where defendant indicated that he used poor judgment by getting involved in selling drugs but continued to contest his responsibility on appeal), cert. denied, --- U.S. ----, 110 S. Ct. 1159 (1990).

Radcliff contends that the district court erred in increasing his base offense level by two points for possession of a firearm during the commission of a drug offense, and that the increase for possession of a firearm violates due process.

This court reviews the district court's factual finding that the defendant possessed a firearm during the commission of a drug offense for clear error. United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir. 1989). Radcliff's due process challenge to U.S.S.G. Sec. 2D1.1(b) (1) is reviewed de novo. See id.

Guidelines section 2D1.1(b) (1) calls for a two-point increase in a defendant's base offense level " ' [i]f a dangerous weapon (including a firearm) was possessed during commission of the offense.' " United States v. Willis, 899 F.2d 873, 875 (9th Cir. 1990) (quoting U.S.S.G. Sec. 2D1.1(b) (1)). However, if the court finds that " 'it is clearly improbable that the weapon was connected with the offense' ", then enhancement is not appropriate. Restrepo, 884 F.2d at 1296 (quoting U.S.S.G. Sec. 2D1.1, Advisory Note 3).

The district court rejected Radcliff's objection to the two-point increase for possession of a firearm because

[a]ccording to the guidelines, the presence of weapons should be used unless it is, quote, 'clearly improbable that the weapon was connected.' In this case there were several weapons found in the home. One had defendant's fingerprints on it, one was stacked next to or under the cocaine.

Radcliff contends that it was clearly improbable that the firearms found in the apartment were connected with the drug trafficking offense because the jury acquitted him of the firearm count.

Radcliff's argument misses the point. The Guidelines do not require that a connection be shown between the possession of the firearms and the drug trafficking offense; all that is required is that the weapon be possessed during the commission of the offense. Restrepo, 884 F.2d at 1296. Moreover, the district court may increase a defendant's base offense level for possession of a firearm even where the defendant is acquitted of a charge of using a firearm in connection with a drug trafficking offense. See United States v. Juarez-Ortega, 866 F.2d 747, 748-49 (5th Cir. 1989).

During the search, police found a loaded shotgun next to the cocaine in the bedroom closet. Ellis testified that the shotgun belonged to Radcliff. A policeman testified that this shotgun was a "riot shotgun, a police-type shotgun." This court has previously upheld an increase under U.S.S.G. Sec. 2D1.1(b) (1) where a loaded firearm was found in a bedroom closet with several ounces of methamphetamine. United States v. Gillock, 886 F.2d 220, 222-23 (9th Cir. 1989). Radcliff's possession of this shotgun, standing alone, is sufficient to affirm the district court's two-point increase in Radcliff's base offense level for possession of a firearm.

In addition to the shotgun, police found numerous other weapons in a closet underneath a stairwell, including a shotgun, two rifles, three pistols, and ammunition. The district court thus did not clearly err in adding two points to Radcliff's base offense level for possession of a firearm.

Radcliff also contends that U.S.S.G. Sec. 2E1.1(b) (1) violates due process because it presumes that a weapon is connected with a drug trafficking offense upon proof of defendant's possession of the weapon, and then shifts to the defendant the burden of disproving the connection under a clearly improbable standard. We rejected this argument in Restrepo:

[T]he language of the Guidelines does not require that a connection be shown. Rather, it requires only that the weapon be possessed during commission of the offense. The Commentary [stating that enhancement is not appropriate if it is 'clearly improbable' that the weapon was connected with the offense], therefore, creates an exception to the terms of the Guidelines, not a presumption that a connection existed. The Due Process Clause does not require that the government prove the absence of every possible exception or mitigating circumstance.

884 F.2d at 1296 (emphasis in original) (citations omitted). Accordingly, Radcliff's due process challenge is rejected.

Finally, Radcliff contends that the district court erred in increasing his base offense level by two points for his role as a manager in a criminal activity.

We review the district court's factual determination that a defendant was the manager of a criminal activity pursuant to U.S.S.G. Sec. 3B1.1 for clear error. United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir. 1990).

Section 3B1.1(c) directs the district court to increase a defendant's offense level by two points if it finds that the defendant was a manager in criminal activity. "Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others." U.S.S.G. Sec. 3B1.1, Application Note 3.

Radcliff contends that Ellis's trial testimony was insufficient to establish that Radcliff was a manager; instead, he claims that the testimony showed that Radcliff and Ellis were equally involved in the criminal activity. This contention is belied by the record. Ellis testified that when she sold cocaine for Radcliff, she obtained the cocaine from him and gave him the proceeds from the sale. This tended to prove that Radcliff was the manager of the cocaine sales activity. Accordingly, we reject Radcliff's contention that the district court erred in increasing Radcliff's base offense level for management of a criminal activity.

AFFIRMED.