Unpublished Disposition, 927 F.2d 611 (9th Cir. 1988)

MEMORANDUM^** 

Rafael Morfin-Torres and Alicia Cardenas-Andrade appeal their convictions for conspiracy to distribute and possession with intent to distribute cocaine. Rafael Morfin-Torres seeks to overturn his conviction for carrying a firearm during the commission of a drug trafficking offense. We affirm.

Appellants' attack on the conspiracy and possession convictions centers on the allegedly outrageous governmental conduct in the investigation that resulted in these convictions. Cardenas-Andrade sought an evidentiary hearing on her allegation that the government's confidential informant by various promises brought about an intimate sexual relationship with her which enabled him to persuade her to arrange a sale between her source of cocaine and the confidential informant. Cardenas-Andrade arranged for Morfin-Torres to sell five kilograms to the informant which led to the arrest of both appellants upon a showing of the cocaine to the informant.

The district court properly denied an evidentiary hearing. Even if Cardenas-Andrade established that the informant conducted himself as alleged, it would not amount to outrageous governmental conduct. See Cohen v. United States, 378 F.2d 751, 760 (9th Cir. 1967) (hearing not necessary when allegations, even if proven, would not require grant of relief), cert. denied, 389 U.S. 897 (1967). The alleged conduct is not "so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. Slaughter, 891 F.2d 691, 695 (9th Cir. 1989). Seduction by an agent of the government, followed by betrayal, may not be honorable, but it falls far short of being "outrageous governmental conduct." See id. at 696 (use of an attractive woman to target a man for investigation did not constitute outrageous conduct); United States v. Simpson, 813 F.2d 1462, 1466, 1467 (9th Cir. 1987) (deceptive creation or exploitation of an intimate relationship did not constitute outrageous conduct), cert. denied, 484 U.S. 898 (1987); United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978) (sexual involvement between informant and defendant did not create a due process infirmity where informant merely introduced a willing seller (defendant) to a willing buyer (agent)).

Appellant Morfin-Torres seeks to overturn his convictions on the additional ground that his motion for a mistrial shortly after the trial began on the ground of prejudice resulting from a display of rifles should have been granted. The display took place in the following manner. On the morning of the trial, May 24, 1988, jury selection commenced and continued until the lunch recess at which time selection remained incomplete. After lunch when all prospective jurors were assembling, three police officers and the prosecutor walked past them carrying evidence for the case, including two rifles, neither of which appeared to be an illegal weapon. The rifles were placed at the foot of the jury box where the prospective jurors could see them. The district court asked the prosecutor about the rifles and she responded that they were not a part of the case. She then apologized and asked that they be removed, which was done forthwith. The district court instructed the prospective jurors to disregard the weapons and anything else that was not formally admitted into evidence and to render their verdict only on the merits.

Jury selection was completed, the jurors were sworn, and the first witness commenced his testimony. At the afternoon break, Morfin-Torres moved for a mistrial on the basis of the prejudice allegedly arising from the rifle display. The motion was denied.

This denial was proper. The motion should have been made before the trial began to enable the district court to take additional steps to expunge any lingering effects of the rifle display. Should an earlier motion be regarded as a futile gesture and, as a consequence, the motion as made being timely, Morfin-Torres still cannot prevail. The motion lacked merit. The district court's instruction was forceful and given with conviction. See United States v. Morris, 827 F.2d 1348, 1351 (9th Cir. 1987), cert. denied, 484 U.S. 1017 (1988). It is presumed that a jury follows a cautionary instruction. See United States v. Vincent, 758 F.2d 379, 382 (9th Cir. 1985), cert. denied, 474 U.S. 838 (1985). These circumstances, taken together with the fact that the rifles were not illegal weapons, compel the conclusion that there is no reasonable probability that the rifle display could have affected the verdict.

AFFIRMED.