Unpublished Disposition, 923 F.2d 863 (9th Cir. 1991)

MEMORANDUM^** 

Samuel Cortez-Gil appeals his convictions for possession with intent to distribute marijuana and for conspiracy to possess. He contends the district court erred in refusing to grant his motion to suppress his statements made to police, and that the court abused its discretion in denying a mistrial for either prosecutorial misconduct or juror/witness misconduct. We affirm.

Cortez-Gil contends he was not adequately informed of his Miranda rights and his statements made to police should have been suppressed. He also argues the police failed to obtain a proper waiver of his rights. We need not decide whether Cortez-Gil's Miranda rights were violated because the admission of his statements was harmless error beyond a reasonable doubt. See United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986). Apart from Cortez-Gil's statement to police that he owned the station wagon spotted in the shopping center, the government presented the testimony of his co-conspirator who described in detail Cortez-Gil's involvement in the offense, the testimony of a police officer who observed Cortez-Gil with his co-conspirator driving the motor home filled with marijuana, the testimony of a second police officer who also observed the defendant in the motor home and driving the station wagon, and who was within five feet of Cortez-Gil at one point during the surveillance, and the evidence that a woman was seen driving the station wagon after the crime had been committed who could be inferred to be Cortez-Gil's wife. In light of the overwhelming evidence against him, we hold the district court did not commit reversible error in admitting defendant's statements.

Cortez-Gil argues the trial court erred in failing to grant a mistrial after a court interpreter reported overhearing an oral exchange between a witness and a juror. We review for abuse of discretion, giving considerable deference to the trial court. United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir. 1988). "We look less harshly upon a conviction if the trial court has conducted an evidentiary hearing." Id.

The court conducted an evidentiary hearing in which the court interpreter stated he heard the witness say something like "they plead not guilty," followed by a juror saying "Oh, yes, I've heard that five times." Both the witness and the juror denied making the comments, and none of the other jurors recalled hearing the witness say anything. Given these facts, we find the district court did not abuse its discretion in denying the motion for a mistrial.

Cortez-Gil claims a mistrial should have been declared because the prosecutor argued in his closing rebuttal a matter not argued by the defendant, and facts not supported by the record. We review for abuse of discretion. United States v. Yarbrough, 852 F.2d 1522, 1538 (9th Cir. 1988).

The defendant argued in his closing statement that he was not the man driving the station wagon. The prosecutor argued the jury should infer that a woman who was seen driving the car after the crime had been committed was Cortez-Gil's wife, thereby linking the defendant to the car, an appropriate response to defendant. In support of his argument, the prosecutor noted that the car was registered to Sindia and Samuel Ortega (Cortez-Gil's first name is Samuel), the woman was seen at the two addresses found on the station wagon's registration, and she was present with two children at the first day of Cortez-Gil's trial. Such evidence is sufficient to support the inference urged by the prosecutor that the woman was Cortez-Gil's wife. In light of the wide degree of latitude accorded to counsel in closing argument, United States v. Prantil, 764 F.2d 548, 555 (9th Cir. 1985), we do not find the district court abused its discretion in denying the motion for a mistrial.

AFFIRMED.