Unpublished Disposition, 917 F.2d 29 (9th Cir. 1988)

Nos. 89-10488, to 89-10490.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and DAVID R. THOMPSON, Circuit Judges, and MUECKE,^*  District Judge.

MEMORANDUM^** 

A jury found defendants Willie Myers, Geraldine Gordon and Roy Lee James guilty of conspiracy to distribute phencyclidine in violation of 21 U.S.C. §§ 841(a) (1) and 846. These defendants were also found guilty of six substantive counts of distribution of a substance (PCP) containing phencyclidine in violation of 21 U.S.C. § 841(a) (1). On appeal, Myers challenges his convictions of conspiracy, as charged in count 1, and the three substantive counts charged in counts 3, 4 and 5. James challenges his conviction of conspiracy and his conviction of substantive counts 6, 7 and 8. Gordon challenges her conviction of the six substantive counts. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

CONSPIRACY

The defendants argue there was insufficient evidence to support their conspiracy convictions. We disagree.

Myers, Gordon and James all spoke on the telephone with the informant, Caraveo, concerning distribution and sale of PCP. They received telephone calls at the same telephone number. The defendants also discussed the distribution and sale of PCP in meetings with Caraveo, Agent Benton, and Agent Landrum. Myers boasted that he manufactured the PCP. The defendants participated in sales of PCP. On October 31, 1988, Gordon delivered PCP and completed a sale arranged by James (count 3). James made additional sales on November 7 and November 16 (counts 4 and 5). Myers made additional sales on November 21, December 12 and December 13 (counts 6, 7 and 8).

There was sufficient evidence from which a rational jury could find that an agreement to distribute PCP existed among the three defendants, that all three of them committed overt acts to implement the agreement, and that all three had the requisite intent to commit the substantive crimes charged. See United States v. Litteral, 910 F.2d 547 (9th Cir. 1990).

SUBSTANTIVE COUNTS

a. Counts 6, 7 and 8

James does not contest his convictions on counts 3, 4 and 5. He challenges his convictions on counts 6, 7 and 8, the sales completed by Myers. James argues Myers had excluded him from participating in any PCP sales before the occurrence of the events described in counts 6, 7 and 8, and that Myers acted on his own, independent of James.

The jury rejected this argument and so do we. As we have noted, there was sufficient evidence for the jury to find all three defendants guilty of conspiracy. A member of a conspiracy is liable for the substantive offenses of his coconspirators unless his coconspirators' acts occur after he has withdrawn. See United States v. Monroe, 552 F.2d 860, 864 (9th Cir.), cert. denied, 431 U.S. 972 (1977). Cf. Marino v. United States, 91 F.2d 691, 698 (9th Cir.), cert. denied, 302 U.S. 764 (1937) (noting that the overt acts of two members of a conspiracy are "admissible against all the conspirators ... unless [the two members] withdrew from the conspiracy by affirmative action").

"Withdrawal from a conspiracy requires a disavowal of the conspiracy or an affirmative action that would have defeated the purpose of the conspiracy, or 'definite, decisive and positive' steps to show that the conspirator's disassociation from the conspiracy is sufficient." United States v. Loya, 807 F.2d 1483, 1493 (9th Cir. 1987) (quoting United States v. Smith, 623 F.2d 627, 631 (9th Cir. 1980)).

None of these elements was shown by the evidence. No conspirator disavowed the conspiracy. Myers tried to cut James out, but the evidence suggests he did so in an attempt to garner more of the proceeds from the conspiracy for himself. The record reflects that after this attempt, Caraveo called Myers' residence and James answered and spoke briefly with Caraveo. This evidence, although circumstantial, is sufficient for a rational jury to find that Myers never communicated to James any intent to disassociate himself from the conspiracy. Indeed, there was no evidence that any of the defendants did anything, or communicated anything, to any other defendant to indicate their disassociation from the conspiracy, or to defeat the purpose of the conspiracy.

We conclude that James remained a member of the conspiracy throughout the occurrence of the substantive acts charged in counts 6, 7 and 8. Thus, James is responsible for these acts. Monroe, 552 F.2d at 864.

We reject James' argument that even if the conspiracy continued through the acts encompassed by counts 6, 7 and 8, Myers acted outside the scope of the conspiracy in completing those acts. A rational jury could have found that the substantive offenses charged in counts 6, 7 and 8 were (1) "committed in furtherance of the conspiracy; (2) the offense [s] fell within the scope of the unlawful project; and (3) the offense [s] could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement." United States v. Thomas, 887 F.2d 1341, 1345 (9th Cir. 1989) (quoting United States v. Douglass, 780 F.2d 1472, 1475-76 (9th Cir. 1986)).

b. Jury Instructions

On appeal, James argues that the district court committed reversible error by the reasonable doubt instruction it gave to the jury. James did not object to the reasonable doubt instruction at the time of trial. Thus, we review his challenge on appeal for plain error. See United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986).

"To determine whether 'plain error' occurred in this case, we inquire whether the alleged error was highly prejudicial and whether the error affected the substantial rights of the defendant. There must be a high probability that the error materially affected the verdict." United States v. Bryan, 868 F.2d 1032, 1038-39 (9th Cir.) (citation omitted), cert. denied, 110 S. Ct. 167 (1989). Reviewing the reasonable doubt instruction by the plain error standard, we reject James' argument. In view of the overwhelming evidence of James' guilt, the instruction which James challenges, while perhaps erroneous, was not so prejudicial that there is a high probability that the error materially affected the verdict. See id.

We also reject James' argument that the district court erred by instructing the jury that "punishment ... is for the court to decide," and that the jury could "not consider punishment in deciding whether the government has proved its case against an accused beyond a reasonable doubt." James' argument is foreclosed by United States v. Wilson, 506 F.2d 521, 522-23 (9th Cir. 1974).

Finally, James argues the district court erred in giving the jury a Pinkerton instruction. We reject this argument for the reasons stated hereafter in part 3 in the resolution of Gordon's similar challenge to the district court's Pinkerton instruction.

c. Sentencing

James argues his mandatory minimum sentence of ten years violates the eighth amendment's prohibition of cruel and unusual punishment. We disagree.

James was sentenced pursuant to 28 U.S.C. § 841(b) (1) (A). We have upheld this particular section against eighth amendment challenges. United States v. Contreras, 895 F.2d 1241, 1243 (9th Cir. 1990). See also United States v. Hoyt, 879 F.2d 505, 512-14 (9th Cir. 1989), modified, 888 F.2d 1257 (9th Cir. 1989). Although James' sentence was for distribution of PCP rather than cocaine, analyzing James' cruel and unusual punishment argument for proportionality as to his PCP offense, as we did for the defendant's cocaine offense in Hoyt, we conclude that James' sentence satisfies the test for proportionality set out by Solem v. Helm, 463 U.S. 277 (1983). Under Solem, we consider "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Solem, 463 U.S. at 292; Hoyt, 879 F.2d at 512-13.

The evidence shows that James knowingly participated in an illegal scheme to sell PCP, a highly dangerous drug. Additionally, he participated in three distributions of the drug and helped negotiate the price for another, larger distribution. Even indulging James' argument that he "may have had 'the lowest possible role' in the narcotics conspiracy does not diminish the level of culpability which attended his own acts." United States v. Klein, 860 F.2d 1489, 1497 (9th Cir. 1988); see also United States v. Savinovich, 845 F.2d 834, 837-40 (9th Cir.), cert. denied, 488 U.S. 943 (1988). Considering the gravity of his offenses, James' penalty is not unduely harsh.

In our proportionality analysis, we also consider whether the sentences imposed on other criminal defendants charged with similar offenses under section 841(b) (1) (A) and under other federal statutes impose similar or harsher penalties for other serious federal charges. They do. See Contreras, 895 F.2d at 1242-1243; Hoyt, 879 F.2d at 513; Klein, 860 F.2d at 1498.

Finally, we note that statutes in state jurisdictions provide similar mandatory minimum sentences. See, e.g., Ala.Code Sec. 13A-12-231(8) (d) (mandatory minimum life sentence without parole for the distribution of 56 grams or more of PCP); Del.Code Ann. tit. 16, Sec. 4753A(a) (6) (C) (mandatory minimum of fifteen years imprisonment and a $400,000 fine for the distribution of 100 grams or more of PCP); Fla.Stat.Ann. Sec. 893.135(1) (d) (3) (mandatory minimum of fifteen years imprisonment and a $250,000 fine for bringing into the state 400 grams or more of PCP); R.I.Gen.Laws Sec. 21-28-4.01.2(A) (3), (B) (mandatory minimum of twenty years imprisonment for the distribution of more than ten grams of PCP or 1,000 tablets containing a detectable amount of PCP).

We conclude that James' ten-year mandatory minimum sentence for his PCP offenses under 28 U.S.C. § 841(b) (1) (A) does not violate the cruel and unusual punishment prohibition of the eighth amendment.

At oral argument, James argued that his sentence should not have been computed based on the events charged in counts 6, 7 and 8, because information contained in his presentence report supported his contention that he had withdrawn from the conspiracy before the substantive offenses charged in counts 6, 7 and 8 occurred. James cited United States v. Turner, 898 F.2d 705, 712-13 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990), as authority for this argument.

Turner is of no help to James. There, the sentencing court improperly relied on events to which the defendant had not pleaded guilty, and which he and the government agreed had occurred after he had withdrawn from the conspiracy. Id. at 713. Here, James was convicted of the substantive offenses charged by counts 6, 7 and 8. Moreover, although James contends he withdrew from the conspiracy prior to the events charged by counts 6, 7 and 8, the government disputes this contention and the evidence at trial established that James was a continuing and knowing participant in the conspiracy throughout all six substantive offenses charged.

James' reliance on United States v. North, 900 F.2d 131 (8th Cir. 1990), modified, 908 F.2d 253 (8th Cir. 1990), is also misplaced. In North, there were two separate conspiracies. The Eighth Circuit held it was improper for the sentencing court to have attributed to the defendant eight ounces of cocaine possessed by his coconspirator for distribution in a separate conspiracy of which the defendant was not a member. North, 900 F.2d at 133-34. Here, there was but one conspiracy and James was a member of it.

a. Counts 3, 4 and 5

Myers does not contest his convictions on counts 6, 7 and 8. He challenges his convictions on counts 3, 4 and 5, the sales which were completed by James, and in one instance, Gordon. Myers argues that he, Gordon and James acted independently, and as a result he should have been found guilty only of the sales in which he directly participated, counts 6, 7 and 8. In support of this contention he argues that there were two occasions in which he disagreed with Caraveo concerning price, and told Caraveo to speak with Gordon on the first occasion and with James on the second. We view this evidence as ambiguous at best. Other evidence establishes that Myers was the "cooker" and that he left to Gordon and James the task of negotiating the sales price of the PCP on the group's behalf.

Myers' argument also fails to account for the fact that the evidence showed that the conspiracy existed at the time of the events described by counts 3, 4 and 5 and continued throughout the events described by 6, 7 and 8. The fact that Myers tried to cut James out after the first three sales (counts 3, 4 and 5) is irrelevant to his responsibility as a coconspirator for offenses committed during the life of the conspiracy. See Monroe, 552 F.2d at 864; United States v. Thomas, 887 F.2d 1341, 1344 (9th Cir. 1989).

b. Ineffective Assistance of Counsel Claim

Myers contends that his convictions of the conspiracy count, and of substantive counts 3, 4 and 5, should be set aside because his counsel was ineffective and he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668 (1984). Myers argues his trial counsel was ineffective because he (1) failed to move for severance of his trial, (2) entered into a stipulation as to the quantity and analysis of the PCP, (3) failed to object to testimony of a police officer that the officer had surveilled Myers in the past, (4) failed to object to the prosecutor's statements to the jury during closing argument in which James contends the prosecutor "vouched" for the testimony of Agent Benton, (5) failed to object to the district court's comment that a jury question referred to Myers as the alleged manufacturer of the PCP, (6) failed to offer a credible defense, and (7) failed to challenge the enhancement of Myers' sentence. We reject these arguments.

(1) Severance

"The general rule is that persons jointly indicted should be jointly tried." United States v. Smith, 893 F.2d 1573, 1581 (9th Cir. 1990). Myers has not shown that a severance under Fed. R. Crim. P. 14 would have prevented clear, manifest, or undue prejudice to him. See Smith, 893 F.2d at 1581. Although the defenses of Myers' codefendants may have been antagonistic to his own, " [a]ntagonism between defenses is not enough, even if the defendants seek to blame one another. Rather, it must be shown on the facts of the individual case, that the defenses 'are antagonistic to the point of being mutually exclusive.' " United States v. Ramirez, 710 F.2d 535, 546 (9th Cir. 1983) (citation omitted) (quoting United States v. Marable, 574 F.2d 224, 231 (5th Cir. 1978)). Myers has not made this showing.

We have also considered Myers' argument that he was prejudiced by codefendant Johnson's testimony that she was merely present as Myers' girlfriend and was surprised and upset to learn of his involvement in the manufacture and sale of PCP. In light of other overwhelming evidence of Myers' guilt, Johnson's testimony was merely cumulative. Myers has not shown that this testimony "led to violation of his substantive rights." See Ramirez, 710 F.2d at 547.

(2) Stipulation

Myers' trial counsel's decision to enter into the stipulation concerning the PCP was a tactical choice. Although Myers maintains this was a questionable tactic, a " [c]ounsel's stipulation to evidentiary facts does not necessarily demonstrate incompetency of counsel." United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir. 1987). Moreover, " [m]ere criticism of a trial tactic is not sufficient to support a charge of ineffective representation." Id. Here, there was ample strategic reason for defense counsel to keep the PCP out of the courtroom. He accomplished this by the stipulation. The fact that the substance was PCP was obvious; there was no point in pursuing further chemical analysis.

(3) Prior Surveillance

While it is true that Myers' counsel failed to object during testimony by North Las Vegas Police Officer Robert Tanner that Tanner had previously conducted a surveillance of Myers, Myers has not shown this testimony to have been prejudicial. The testimony merely established that at one time the Las Vegas police had Myers under surveillance. There was no testimony as to when Myers was under surveillance, what it was for, or the results of the surveillance. There was other overwhelming evidence of Myers' guilt, as we have heretofore recounted. Given these circumstances, Myers' counsel's failure to object to Tanner's testimony did not affect the outcome of the trial. See United States v. Feldman, 853 F.2d 648, 665-66 (9th Cir. 1988), cert. denied, 109 S. Ct. 1164 (1989).

(4) "Vouching"

We assume, without deciding, that the prosecutor's statements to the jury concerning the testimony of Agent Linda Benton were improper. See United States v. Wallace, 848 F.2d 1464, 1474 n. 16 (9th Cir. 1988) (noting that it was improper for the prosecutor to vouch for a government witness by stating that the witness "could have gilded the lily, she could really have buried [the defendant] ..., but she didn't do that, she told the truth."). Even so, had Myers' counsel objected, and had the court given a curative instruction, there is no reasonable probability that the jury's decision with respect to Myers' guilt would have been different. The prosecutor's comments were made in response "to defense counsel's attacks, thus rendering it unlikely that the jury was led astray." United States v. Young, 470 U.S. 1, 12 (1985). Moreover, the prosecutor's statements pertained almost exclusively to the witness Benton's testimony concerning Johnson, not Myers. The jury acquitted Johnson, a circumstance which reinforces our "conclusion that the prosecutor's remarks did not undermine the jury's ability to view the evidence independently and fairly," and did not affect the outcome of Myers' case. See Young, 470 U.S. at 18 n. 15.

(5) Court's Comment to Jury

During deliberations, the jury asked the court whether a person can be "considered guilty of distribution if they're involved in manufacture of an illegal substance only, not a physical transportation." The court replied that the question "seems to involve primarily one of the defendants, and I take it--and you can indicate to the contrary--the alleged manufacturer of this substance, who, I suppose is Willie Myers, and you're asking with respect to a question that seems to relate primarily to that defendant."

This comment by the court was not improper given the context in which it was made. The trial court was not expressing any opinion as to Myers' guilt or innocence. It merely pointed out what was perfectly obvious: that the jury's question pertained to Myers. The court referred to Myers as "the alleged manufacturer." This was a recital of an allegation the government sought to prove. In addition, evidence during the trial, including Myers' own statements, established that Myers did indeed manufacture the PCP. No evidence to the contrary was presented.

(6) Lack of Defense

Myers' contention that his counsel's representation was deficient because he did not put forth any defense fails for lack of any substantial basis. Myers "never suggests what that defense might have been," and "assumes that witnesses or evidence could have been found." United States v. Appoloney, 761 F.2d 520, 525 (9th Cir.), cert. denied, 474 U.S. 949 (1985).

(7) Sentencing Enhancement

Myers argues that his counsel should have opposed enhancement of his sentence based upon the allegation that he was the leader and organizer of the conspiracy, and based upon two prior felony convictions. Myers fails to show, however, how his counsel could have established, in light of the overwhelming evidence, that he was not the leader or organizer of the conspiracy. Myers bragged that he manufactured the PCP and that Gordon and James delivered it on his behalf.

Myers also fails to show how his trial counsel could have attacked enhancement of his sentence based on the two prior felony convictions. He suggests this might have been attempted, but fails to show how it could have been accomplished.

a. The Pinkerton Instruction

Gordon, as well as James, contends that the district court committed reversible error by giving a Pinkerton instruction. We disagree. The district court may properly give a Pinkerton instruction provided that the government offers "some evidence showing that the [conspirator] knowingly joined with others to accomplish an illegal purpose, and that the conspirator knew the essentials of the conspiracy." United States v. Mills, 704 F.2d 1553, 1566 (11th Cir. 1983), cert. denied, 467 U.S. 1243 (1984) (citations omitted). In the present case, the district court had before it ample evidence of both Gordon's and James' knowing participation in the conspiracy. Thus, the district court did not err by giving the Pinkerton instruction. The contention that the Pinkerton instruction violated the defendants' rights to due process lacks merit. While it has been noted "that the doctrine of vicarious guilt may have due process limitations," United States v. Johnson, 730 F.2d 683, 690 n. 8 (11th Cir.), cert. denied, 469 U.S. 857, 867 (1984), "attributing the acts of [Myers, Gordon and James to one another] is not so attenuated that such due process concerns would apply here." Id.

Gordon also argues that the district court erred in failing to instruct the jury that her criminal responsibility was limited to those acts committed "during the course and in furtherance of the conspiracy." The instruction the court gave limited Gordon's criminal responsibility to acts committed "pursuant to the conspiracy."

While the Supreme Court has used the words "in furtherance of," see, e.g., Nye & Nissen v. United States, 336 U.S. 613, 618 (1949); Pinkerton v. United States, 328 U.S. 640, 647 (1946), the use of the words "pursuant to" is not error. Webster defines "pursuant to" as (1) "in the course of carrying out," (2) "in conformance to or agreement with," or (3) "according to." Webster's Third New International Dictionary, 1848 (1986). Each of these meanings is sufficient to convey to the average juror that a defendant may not be convicted under Pinkerton unless the defendant's coconspirators' actions are sufficiently related to the conspiracy. The practical difference between "pursuant to" and "in furtherance of" is minimal, if existent at all.

b. Specificity of Instructions

We also reject Gordon's contention that the jury instructions were inadequate because they failed to specify that a defendant named in a particular count knowingly distributed PCP. See Manual of Model Criminal Jury Instructions for the Ninth Circuit Sec. 8.05E (1989). The court instructed the jury that before the jury could find a defendant vicariously liable of a particular substantive offense, the jury had to "find beyond a reasonable doubt ... that the offense defined in the substantive count was committed pursuant to the conspiracy." Each conspirator was specifically named in counts 3 through 8. Each was also named as a coconspirator in count 1. We conclude that the jury could not have been confused or misled by the court's instructions. We also note that in another case in relation to an insufficiency of the evidence claim, we commented that an identical instruction was "a valid Pinkerton instruction." United States v. Vasquez, 858 F.2d 1387, 1393 & n. 3 (9th Cir. 1988), cert. denied, 109 S. Ct. 847, 1161 (1989).

c. Court's Remarks to Jury

We reject Gordon's argument that the district court committed reversible error by remarks made to the jury during the second reading of the instructions. Gordon made no objection to these remarks. As a result, our review is for plain error. Having considered the remarks under the plain error standard, we conclude that the court's comments did not constitute prejudicial error requiring reversal. See Bryan, 868 F.2d at 1038-39.

CONCLUSION

The convictions of all defendants, and the challenged sentences, are AFFIRMED.