Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

MEMORANDUM^* 

Piyaporn Wongphaisankiat appeals her convictions for conspiracy and possession with intent to distribute heroin. She claims the district court abused its discretion by allowing certain expert testimony, and by refusing her motion for a mistrial after a government witness volunteered prejudicial inadmissible information. She also claims that insufficient evidence supported her convictions, and her sentence was based in part on impermissible considerations. We affirm.

DISCUSSION

Agent Stephen Georges, a group supervisor with the DEA, was allowed to testify for the government as an expert witness on Southeast Asian drug trafficking. Wongphaisankiat alleges that Agent Georges' testimony lacked sufficient foundation; specifically, that he misrepresented the number of cases he had handled which involved couriers, and that his information on Southeast Asian heroin organizations was equivocal. She also claims that Georges' testimony amounted to a "drug courier profile" which was more prejudicial than probative.

"The decision to admit expert testimony is committed to the discretion of the [trial] court and will not be disturbed unless manifestly erroneous." United States v. Kinsey, 843 F.2d 383, 388 (9th Cir.), cert. denied, 487 U.S. 1223 (1988). Here, the trial court did not abuse its discretion by allowing Georges' testimony. Wongphaisankiat correctly notes that during his foundation testimony, Georges did not mention that only one-third to one-half of his seventy-five Southeast Asian heroin investigations directly involved couriers. She fails to demonstrate, however, that the district court conditioned its decision to allow Georges' testimony on the belief that all seventy-five investigations involved couriers, or that twenty-five or more investigations is insufficient experience to qualify as an expert on this subject. As to Georges' testimony being equivocal, the government persuasively contends that while he testified that not all heroin organizations are alike, his testimony was offered to show that the type of transaction involved here was not atypical, and the court so limited the areas of his examination. Under these circumstances, a sufficient foundation was laid for Georges' testimony.

Similarly, Georges' testimony was not reasonably susceptible to being characterized as a drug courier profile. His testimony primarily dealt with general means of operation used by Southeast Asian drug traffickers, not "a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics." Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam); see United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989) (discussing testimony involving "characteristics of the typical drug courier"). " [G]overnment agents or similar persons may testify as to the general practices of criminals to establish the defendants' modus operandi. Such evidence helps the jury to understand complex criminal activities, and alerts it to the possibility that combinations of seemingly innocuous events may indicate criminal behavior." United States v. Johnson, 735 F.2d 1200, 1202 (9th Cir. 1984); see United States v. Patterson, 819 F.2d 1495, 1507 (9th Cir. 1987) ("Expert testimony on the structure of criminal enterprises is allowed to help the jury understand the scheme and assess a defendant's involvement in it."). Here, Agent Georges' testimony was offered to help the jury understand how couriers are used in the context of Southeast Asian drug trafficking. The district court did not abuse its discretion by allowing such testimony.

During her cross-examination of Agent Georges, Rodpool's counsel asked the agent how he knew that Derrick Pengraska, the registered owner of a weapon found in Rodpool's car after the arrest, was Rodpool's brother. Agent Georges responded:

His name and Mr. Rodpool's name had come up in a previous investigation of Southeast heroin trafficking resulting in seizure of two kilograms of cocaine. Mr. Pengraska (phonetic) was listed on an application as personal reference by the defendant Rodpool who had rented an apartment in Montebello where the heroin shipment was intercepted, and that application was in this defendant's handwriting by this defendant listing his brother as Derrick Pengraska (phonetic), a personal reference for the rental agreement of the apartment in Montebello, California.

After several subsequent questions, Rodpool's counsel moved for a mistrial based on the prejudicial effect on the jury of this inadmissible evidence of a prior unrelated heroin investigation. Wongphaisankiat's attorney joined the motion. The district court refused to declare a mistrial, opting instead to admonish the jury to ignore the extraneous testimony. Wongphaisankiat argues that the court's cautionary instruction was insufficient to dispell the prejudicial effect of the inadmissible evidence and claims she therefore was denied a fair trial.

This court reviews the district court's denial of a motion for a mistrial for abuse of discretion. United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985). "Where evidence heard by the jury is later ruled inadmissible, a cautionary instruction is ordinarily sufficient to cure any alleged prejudice to the defendant. Declaring a mistrial is appropriate only where a cautionary instruction is unlikely to cure the prejudicial effect of an error." Id. (citation omitted). The court "must weigh the forcefulness of the instruction and the conviction with which it was given against the degree of prejudice generated by the evidence. In fixing the degree of prejudice, the probative force of the inadmissible evidence must be compared with that of the admissible evidence which supports the verdict." United States v. Johnson, 618 F.2d 60, 62 (9th Cir. 1980) (citations omitted).

Here, the district court gave a long instruction to the jury. The court questioned the agent's credibility and told the jury that:

the agent ventured beyond the necessity of answering the question.... The part of his answer where he talked about this other investigation and what may or may not have stemmed from that is totally extraneous to this case. It has a little relationship to this case as the score of the Dodger game tonight. Nothing to do with it.

The instruction was made forcefully and given with conviction. Wongphaisankiat contends, however, that "given the length of the instruction and the repeated references to the previous investigation, the admonition merely highlighted the damaging effect of the information." While the instruction might have been more concise, it contained the essential ingredients. Moreover, " [a]lthough curative instructions are not always effective, [this court has] stated that we must assume that the jury followed the curative instruction." Johnson, 618 F.2d at 62 (citation omitted).

In addition to considering the district court's cautionary instruction, the relative probative force of the evidence must be weighed. Any probative force of the inadmissible evidence derives from Wongphaisankiat's defense. She claims she believed she merely was arranging to pick up some jewelry for her friend Kannika and was duped into picking up heroin instead. She argues that the jury's erroneous discovery of the unrelated investigation of her codefendant and his brother Pengraska, who was later identified during the trial as Wongphaisankiat's live-in boyfriend, severely undermined her claim that she knew nothing about drug smuggling and thus prejudiced her defense.

This information, however, was not as damaging as Wongphaisankiat claims. Initially, it concerns an investigation of her codefendant and her boyfriend, not her. The information, therefore, is not necessarily inconsistent with her contention that she knew nothing about heroin smuggling. More importantly, a significant amount of admissible evidence contradicted her story: during negotiations, Wongphaisankiat said that after the sale a contact would send the money to her which she would forward to Bangkok; she asked Yang to give her a small amount of the "product" to show to her friend before Yang received his courier fee; she gave Rodpool a loaded .380 caliber semi-automatic pistol to take to the meeting with Yang; the first package handed to Wongphaisankiat was wrapped in clear plastic so she could see what was inside; and she knew during the negotiations that five packages, rather than just one as she claimed at trial, were involved in the transaction. "Whether the alleged errors prejudiced the [defendant's] right [ ] to a fair trial depends ... upon the strength of the Government's case [ ] against [her]; the stronger the prosecution's case, the less likely that a defendant would be prejudiced by error or misconduct." United States v. Nadler, 698 F.2d 995, 1002 (9th Cir. 1983). Given the strength of the government's case, any prejudice to Wongphaisankiat arising from Agent Georges' extraneous remarks was minimal and was cured by the court's cautionary instruction. She therefore was not denied a fair trial.

Wongphaisankiat also claims that insufficient evidence supports her convictions. Specifically, she contends that the evidence produced at trial is consistent with her defense that she believed she was taking delivery of jewelry for her friend. She points to testimony that she and agent Yang spoke different languages, that she did not understand the term "pants" when Yang used it as a code word for heroin, that the word "heroin" was never used in their conversations, that she never actually saw what was in the packages, and that she was expecting only one package rather than five. Because this evidence allegedly shows that Wongphaisankiat and Yang were involved in two different transactions, Wongphaisankiat maintains the government failed to prove that she knowingly and intentionally conspired to possess and possessed heroin with the intent to distribute it.

"The standard for reviewing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Government, the jury could reasonably conclude that the defendant was guilty beyond a reasonable doubt." Nadler, 698 F.2d at 1002. Evidence was presented at trial which was inconsistent with Wongphaisankiat's proffered defense. See discussion supra. This evidence tends to show that she did in fact knowingly and intentionally conspire to possess and possessed heroin with the intent to distribute it. Viewing the evidence in the light most favorable to the government, a reasonable jury could have concluded that Wongphaisankiat was guilty beyond a reasonable doubt. Sufficient evidence therefore supports her convictions.

During the course of Wongphaisankiat's sentencing, the court stated: "She comes into this country, the best country in the world, and trades in heroin. So what sympathy does she deserve? Zero.... Tears now. She should have thought about this before she decided to sell heroin. It wasn't her first time, either." Based on these comments, Wongphaisankiat claims that her sentence was improperly based in part on her national origin (Thailand), see United States v. Borrero-Isaza, 887 F.2d 1349, 1353-54 (9th Cir. 1989), and on the court's mistaken belief that she previously had been involved in drug trafficking, see United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987).

To the extent the district court considered Wongphaisankiat's national origin, the court did not use it as a basis for increasing her sentence beyond the ten-year statutory minimum. Rather, the court apparently was responding to defense counsel's plea for leniency in part on the grounds that Wongphaisankiat "is here in a country that she's not real accustomed to. She's only been here for a relatively short period of time." In response, the court suggested that Wongphaisankiat's arrival in this country did not entitle her to leniency, not that her nationality was a partial reason for increasing her statutory minimum sentence, a situation readily distinguishable from that in Borrero-Isaza, 887 F.2d at 1353-54, where the court explicity grounded its sentence enhancement on the fact that the defendant was from a "source country." Here, the record simply does not support Wongphaisankiat's claim that the court impermissibly enhanced her sentence based on nationality or immigrant status.

Similarly, the court's observation that this wasn't her first time selling heroin was not an explicit basis for increasing Wongphaisankiat's sentence. " [A] sentence will be vacated on appeal if the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence." Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc). In the context of sentencing, the court mentioned that this was not Wongphaisankiat's first time to deal drugs, but that conclusion was not demonstrably made the basis for increasing her sentence.

The court explicitly decided to increase her sentence on its finding that she had lied: "she came to court and lied, so she gets extra time for lying." This explicit explanation by the court of its intention to increase Wongphaisankiat's sentence because she lied tends to negate any inference that the court also based the increase on any other factor. Moreover, even if the court's belief in her prior drug dealing might have influenced her sentence, the evidence produced at trial leads to a reasonable inference that she was experienced in this type of drug transaction. See United States v. Robelo, 596 F.2d 868, 870 (9th Cir. 1979) (finding that the defendant's ability to locate a seller in a foreign country, arrange for the purchase of a large amount of drugs, his nerve in handling the transaction, and his expertise in securing a field test supported the sentencing judge's inference that he had experience dealing drugs).

CONCLUSION

The district court did not abuse its discretion by allowing Agent Georges' expert testimony or by denying Wongphaisankiat's motion for a mistrial founded on the information Georges volunteered concerning an unrelated prior heroin investigation of Rodpool and Wongphaisankiat's boyfriend. Similarly, sufficient evidence supports Wongphaisankiat's convictions, and the district court did not increase her mandatory minimum sentence based on improper considerations. Accordingly, Wongphaisankiat's convictions and her sentence are AFFIRMED.