Unpublished Disposition, 914 F.2d 264 (9th Cir. 1989)

MEMORANDUM^* 

This consolidated appeal involves the jury convictions of Israel Marcellus Talley ("Talley"), Irvin Joseph Ray ("Ray"), Parnell Colvin ("Colvin"), and Amanuel Devon Brooks ("Brooks") on several drug trafficking counts. The appellants-defendants raise numerous issues on appeal. We affirm.

Ray challenges the denial of his motion to suppress, contending his post-arrest statement to Special Agent Andrew Bland was not voluntary and his arrest warrant was not based upon probable cause.

First, upon considering the totality of the circumstances, we agree with the district court that Ray's post-arrest statement was "given freely and voluntarily after advice of rights and a waiver of those rights." Ray was advised of his Miranda rights, both in the car in which he was transported and in the interrogation room. Ray ultimately signed the advice of rights form. It was Ray who inquired whether his comments might help him. No promises or guarantees were made, as Ray was informed the final decision on any leniency was with the U.S. Attorney and the federal judge. See, e.g., United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988).

Second, Ray argues his post-arrest statement was the fruit of an illegal arrest because his arrest warrant affidavit lacked a sufficient basis for probable cause. Upon review of the affidavit, we find the magistrate had a substantial basis to conclude probable cause supported the arrest warrant. Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (substantial basis standard); see also United States v. Castillo, 866 F.2d 1071, 1076 (9th Cir. 1988) (noting a magistrate's finding of probable cause is afforded deference and will not be reversed unless shown to be clearly erroneous). The affiant, FBI Special Agent Bland, noted an Anti-Gang Task Force investigation was focusing on a crack cocaine distribution scheme operating largely out of the Springwood Apartment complex in Kent. The affidavit was based on statements from an unidentified cooperating witness, listed as "CW-1," who continued contact with Bland and purchased crack cocaine from some of the defendants. Hearsay statements may be considered in assessing an affidavit. Castillo, 866 F.2d at 1077-78. CW-1 was introduced to each of the defendants and was told of Ray's involvement in the distribution of crack cocaine. CW-1 saw each of the defendants conduct crack distribution transactions. Finally, Ray was noted to have been in CW-1's presence on many occasions.

Brooks challenges the district court's denial of his motion to suppress evidence obtained from the apartment of his girlfriend, Melissa Delinco ("Delinco"), contending that her consent to the search was coerced. Ray incorporates by reference this argument.

Under the totality of the circumstances, and viewing the evidence in the light most favorable to the district court, Brooks has not established the voluntary consent finding was clearly erroneous. See id. at 1082. Delinco testified at the suppression hearing that she was the lessee of record for the apartment and that Brooks and Ray also lived there. Both Delinco and the agents testified she was not under arrest. Delinco was advised of her rights, which were explained to her, and she was asked to sign a consent form for the search, which she ultimately did. The agents told her she was not obligated to sign the consent form. She was also told in the absence of consent the agents would attempt to obtain a search warrant. Finally, any promises by the agents that any evidence would not be attributed to Delinco did not make her consent involuntary. Cf. United States v. Ceballos, 812 F.2d 42, 51 (2d Cir. 1987).

Talley argues the trial court abused its discretion in admitting evidence of gang membership, pursuant to Fed.R.Evid. 403. The defendants' motions in limine and at trial to exclude this evidence were denied. On appeal, Ray, Brooks and Colvin also incorporate by reference this argument.

Codefendant Johnson testified at trial that he, Talley and Ray had been members of the same gang. At least as to Talley and Ray, there was no abuse of discretion as the gang membership evidence relating to them was relevant to show prior association and was probative on whether the conspiracy existed. See, e.g., United States v. Harrell, 737 F.2d 971, 978 (11th Cir. 1984) ("While an inference of conspiracy can never rest solely on ties of friendship or kin, such associations comprise one factor of many which may be considered in ascertaining the existence of a conspiracy."), cert. denied, 469 U.S. 1164 and 470 U.S. 1027 (1985); see also, United States v. Layton, 855 F.2d 1388, 1402 (9th Cir. 1988) ("Rule 403 precludes only unfair prejudice.") (emphasis in original), cert. denied, 109 S. Ct. 1178 (1989).

In contrast, there was no evidence linking Colvin or Brooks to gangs. We need not determine whether any probative value of the gang evidence as to them was substantially outweighed by unfair prejudice since any abuse of discretion in admitting this evidence has not been shown to be more than harmless error. See United States v. Shirley, 884 F.2d 1130, 1132 (9th Cir. 1989) (noting when an abuse of discretion is shown, the admission of the evidence must also be shown to constitute more than harmless error); see also Fed.R.Evid. 103(a); Fed. R. Crim. P. 52(a). Counsel for both Colvin and Brooks, in their opening statements and closing arguments, disavowed any evidentiary gang connection to their clients. Further, at trial, the defense brought out their own references to gang membership. Under these circumstances, any error in admitting the evidence was harmless.

Finally, it was not an abuse of discretion to admit the ages of juveniles selling cocaine on behalf of the conspiracy.

Colvin challenges the denial of his pretrial motion to be severed from trial with his codefendants, pursuant to Fed. R. Crim. P. 14. At oral argument, Colvin conceded appellate review of this issue is improper since he failed to comply with the requirement that he renew his motion to sever at the close of trial evidence. See, e.g., United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046 (1988).

Colvin challenges the constitutionality of his convictions on Counts II through IX. He contends that the indictment was based on two theories of culpability (coconspirator and aiding and abetting) but the jury was only instructed on one theory (coconspirator).

Although Colvin did not raise this issue before the district court, we decide to consider this argument for the first time on appeal. See United States v. Solis, 841 F.2d 307, 309 (9th Cir. 1988).

Turning to the merits, we have established that " [w]hether specified or not, [18 U.S.C.] Sec. 2(b) [aiding and abetting liability] is considered embodied in full in every federal indictment." United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986) (emphasis in original), cert. denied, 479 U.S. 1038 (1987). Further, " [w]here a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt." United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988), cert. denied, 109 S. Ct. 812 (1989). Based upon these authorities, we conclude that Colvin did not receive improper notice of the charges in the indictment, and thus he was not convicted on an offense that was not alleged in the indictment. United States v. Miller, 471 U.S. 130, 134-35, 142 (1985).

Ray argues that the jury should not have been permitted to convict him under a Pinkerton theory because he played a relatively minor role in the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 647-48 (1946). Brooks, Colvin, and Talley also incorporate by reference this argument.

The acts of Ray, and other codefendants relying on this theory, as supported by the evidence, are not so attenuated as to implicate due process concerns or to suggest the Pinkerton theory was improper in this case. See, e.g., United States v. Johnson, 886 F.2d 1120, 1123 (9th Cir. 1989), cert. denied, 110 S. Ct. 1830 (1990); United States v. Alvarez, 755 F.2d 830, 850 & n. 26 (11th Cir.), cert. denied, 474 U.S. 905 (1985). As we have previously noted, " [a] co-conspirator is vicariously liable for the acts of another co-conspirator even though he may not have directly participated in those acts, his role in the crime was minor, or the evidence against a co-defendant more damaging." United States v. Gagnon, 721 F.2d 672, 676 (9th Cir. 1983) (emphasis added), rev'd on other grounds, 470 U.S. 522 (1985) (per curiam).

On count II, Ray contends he was deprived of his right to a unanimous verdict, U.S. Const. art. III, Sec. 2, amend. VI, by instruction 14, predicated on "either" an aiding and abetting "or" conspiracy theory. Brooks and Colvin also incorporate by reference this argument. Ray's contention is that the disjunctive instruction left open the possibility that some but not all of the jurors found liability under one but not the other theory. Where, as here, an objection to the instruction is not raised at trial, as required by Fed. R. Crim. P. 30, review is for plain error. See, e.g., United States v. Bryan, 868 F.2d 1032, 1038-39 (9th Cir.) (noting reversal of a conviction for plain error is an exceptional remedy), cert. denied, 110 S. Ct. 167 (1989); Fed. R. Crim. P. 52(b).

Ray has not established plain error. The concerns noted in United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.), modifying, 698 F.2d 375 (1983), are not present here. See generally United States v. Anguiano, 873 F.2d 1314, 1319-21 (9th Cir.) (noting situations of a "genuine possibility of juror confusion"), cert. denied, 110 S. Ct. 416 (1989). Further, there is no contention that the jury indicated any possibility of confusion to the trial judge. Cf. id. at 1319; Bryan, 868 F.2d at 1039.

Colvin contends the evidence was insufficient to convict him on the conspiracy count, challenging the proof of a slight connection linking Colvin to the conspiracy.

In viewing the evidence in the light most favorable to the Government, Jackson v. Virginia, 443 U.S. 307, 319 (1979), we conclude the requisite "slight connection" with the conspiracy was adequately established. See, e.g., United States v. Hernandez, 876 F.2d 774, 779 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989); see also United States v. Weaver, 594 F.2d 1272, 1274 (9th Cir. 1979). O'Cain testified that the cocaine she purchased from Colvin on one occasion was distinctive because it had bubbles, signifying that it came from the coconspirator Smith brothers. Further, a cocaine transaction notebook found in the apartment of Larry Smith and Mickey Frederick Turner contained the initials PC, which were attributed to Colvin. While coconspirator Johnson testified Colvin "wasn't part of our crew," he also testified on Colvin's involvement in cocaine transactions with him and coconspirator Turner.

Colvin contends the proof of the conspiracy at trial was inconsistent with that charged in the indictment, resulting in constructive amendment of the indictment. Talley also incorporates by reference this argument.

We conclude the indictment here was not constructively amended by proof at trial nor did a variance result. See, e.g., United States v. Pisello, 877 F.2d 762, 765 (9th Cir. 1989); see also United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984). Colvin's argument on this issue is essentially the same as the one that he raised under his sufficiency of the evidence challenge. The jury was correctly instructed that a defendant was to be found not guilty if the jury concluded he was not a member of the conspiracy charged.

Colvin contends the trial court abused its discretion in admitting the rebuttal witness testimony of Marsha Murphy and John F. Nelson, concerning the prior statements of Barnes, as prior consistent statements supporting her trial testimony pursuant to Fed.R.Evid. 801(d) (1) (B). See, e.g., United States v. Miller, 874 F.2d 1255, 1271 (9th Cir. 1989).

The trial court acted within its discretion in admitting the rebuttal testimony of Murphy and Nelson. Colvin argues that Barnes had a fabrication motive at the time she made her prior statements because they did not get along and she wanted him out of the apartment. This was not a powerful motive to fabricate and the prior consistent statements did have considerable probative force apart from mere repetition. Id. at 1274.

Talley contends alleged prosecutorial misconduct resulted in reversible error when the Government stated, in its rebuttal argument, that the defense had an equal right to call other original codefendants of the prosecution but didn't. Ray and Colvin also incorporate by reference this argument.

Talley contends the Government rebuttal was a knowing misrepresentation because the prosecutor allegedly coerced one of the pleading codefendants, Anthony Lee Smith, and his counsel not to allow Smith to be interviewed by other codefendants before the trial, thereby denying the codefendants who proceeded to trial access to this potential witness. The trial court denied the motion for mistrial based on this alleged prosecutorial misconduct, concluding the prosecutor's statement was not a misrepresentation. Talley's proffer of a curative instruction was also ultimately denied.¹ 

We conclude the "allegedly improper behavior, considered in the context of the entire trial, including the conduct of the defense counsel," did not affect the jury's ability to judge the evidence fairly. United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986). The Government's rebuttal did not exceed permissible bounds. See United States v. Feldman, 853 F.2d 648, 665 (9th Cir. 1988), cert. denied, 109 S. Ct. 1164 (1989). As noted in the next section, the district court's finding that no misstatement of fact was made was not erroneous. "In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." United States v. Young, 470 U.S. 1, 12 (1985). The challenged rebuttal argument was expressly made in response to Talley's closing argument. See, e.g., United States v. Lopez, 803 F.2d 969, 972 (9th Cir. 1986) (noting "where the defendant opens the door to an argument, it may be 'fair advocacy' for the prosecution to enter") (citation omitted), cert. denied, 481 U.S. 1030 (1987). Further, it is permissible to note the failure of the defense to present exculpatory evidence where those comments, as here, do not implicate the defendant's right not to testify. Id. at 973; see also Castillo, 866 F.2d at 1083.

Related to the last issue, Brooks contends the Government denied him access to interview Anthony Lee Smith before trial. On appeal, Ray and Talley also incorporate by reference this argument.

Brooks' motion to compel an interview of Smith without the presence of the prosecution was denied. At the hearing on this motion, the district court ordered the marshals to bring Smith to Seattle for an interview if the defendants going to trial wanted to proceed with an interview. However, the court noted it would not order Smith to exclude the prosecutor if Smith voluntarily decided to condition an interview on the prosecutor's presence. An interview was arranged for December 21. After the interview was not held, a subsequent motion to dismiss the indictment or to exclude the testimony of Anthony Smith was denied on January 3, 1989.

Generally, both sides have the right to interview witnesses before trial as a witness does not belong to the Government or the defense. United States v. Cook, 608 F.2d 1175, 1180 (9th Cir. 1979), cert. denied, 444 U.S. 1034 (1980). This right of access coexists with the right of the witness to voluntarily decline an interview. United States v. Black, 767 F.2d 1334, 1338 (9th Cir.), cert. denied, 474 U.S. 1022 (1985). We have noted potential abuses which may arise when conduct is taken that "has the purpose or effect of discouraging witnesses from cooperating with the counsel of an accused." United States v. Rich, 580 F.2d 929, 934 (9th Cir.), cert. denied, 439 U.S. 935 (1978). See also Gregory v. United States, 369 F.2d 185, 187-89 (D.C. Cir. 1966).

Brooks does not contend the Government explicitly advised Smith not to be interviewed by other codefendants, but alleges the Government dissuaded any interview through implicit coercion because sentencing was pending and Smith had an obligation to cooperate with the Government under the terms of the plea agreement. No denial of access was charged against any of the four remaining codefendants who pled guilty. We conclude Brooks failed to make an adequate showing of what Smith's expected testimony would be and of its significance to the defense. Cf. United States v. Crenshaw, 698 F.2d 1060, 1066 (9th Cir. 1983) (on a motion for a subpoena to produce a witness the defendant must show the witness is necessary to an adequate defense). Absent such a sufficient showing, a fishing expedition on this issue would be unwarranted. This is particularly so where, as here, the defense had information concerning Smith's proposed testimony.

The analysis of Brooks' argument can be bifurcated into two parts concerning the two separate motions. On the first motion to compel an interview, the record does not establish denial of access. Brooks subpoenaed Michael Nance ("Nance"), Smith's attorney, for a hearing on this matter. Nance testified that the prosecutor expressed a strong interest in being present with any defense counsel conducting a witness interview but the prosecutor did not threaten or promise Nance anything. Nance's December 1, 1988 letter on the subject to defense counsel expressly noted the prosecutor "has neither threatened nor promised anything to us, just stated his preference." Further, the letter noted Nance was "open to the possibility of [Smith] being interviewed informally in Seattle, as long as [the prosecutor] Mr. Hamilton has advance notice...." On these facts, defense counsels' access to interview Smith was not impermissibly denied.

On the second motion to dismiss the indictment or in the alternative to exclude the trial testimony of Anthony Smith, the declaration of Ralph Hurvitz, defense counsel for Ray, alleged that Nance indicated the prosecutor "did not think that speaking with defense counsel was wise," although the prosecutor noted the ultimate decision to be interviewed was left to Smith. We have serious concerns with this statement under Black and Gregory. However, even assuming arguendo denial of access to Smith occurred, reversal is not warranted without a showing of prejudice. See United States v. Kahan & Lessin Co., 695 F.2d 1122, 1124 (9th Cir. 1982) (per curiam). Since the Government never called Anthony Smith to testify, Brooks effectively obtained the alternative relief he sought in his second motion. On these facts, no sufficient showing of prejudice to mandate reversal has been made.

Talley contends the sentencing court failed to apply the more lenient good time credit provisions which predated the Sentencing Guidelines instead of the stricter good time provisions under the Guidelines. Compare 18 U.S.C. § 3624(b) (1988) (Sentencing Guidelines) with 18 U.S.C. § 4161 (repealed). Ray and Colvin also incorporate by reference this argument.

We have already applied the Sentencing Guideline good time credit provision to three original codefendants in this district court action who were sentenced while the Guidelines were deemed unconstitutional. United States v. Turner, 898 F.2d 705, 709 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990). That case and its rationale control here as well.

Colvin argues the application of the mandatory minimum sentence under 21 U.S.C. § 841(b) (1) (B) violates the Due Process and Equal Protection Clauses and the Eighth Amendment prohibition against cruel and unusual punishment. Ray, Brooks and Talley also incorporate by reference this argument.

Although this issue is raised on appeal for the first time, we exercise our discretion to consider it. See, e.g., United States v. Greger, 716 F.2d 1275, 1277 (9th Cir. 1983), cert. denied, 465 U.S. 1007 (1984).

On the merits, Colvin asserts the Constitution is violated because the evidence established he was only involved with a small quantity of cocaine and played a minimal role in the conspiracy. Under the facts presented, Colvin has not shown the statute as applied is irrational or the sentence imposed disproportionate to the crime committed. Similar arguments have been considered and rejected and the quantity-based classification scheme under the statute has repeatedly been found to be rational and reasonable.²  While Colvin argues it is an open question whether equal protection and due process guarantees are violated where one is a minor or peripheral participant, United States v. Zavala-Serra, 853 F.2d 1512, 1517 (9th Cir. 1988), we are persuaded by at least one other court which has considered the question and found no such constitutional infirmity. See, e.g., United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir.), cert. denied, 486 U.S. 1058 (1988).

AFFIRMED.