Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 30 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Edgar Jose RAMIREZ, Defendant-Appellant.

No. 90-10117.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 1991.Decided March 28, 1991.Rehearing Denied May 1, 1991.As Amended on Denial of Rehearing May 1, 1991.

Before SCHROEDER, PREGERSON, and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM* 

Defendant-Appellant Edgar Ramirez appeals his conviction of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846, and possession with intent to distribute in violation of 21 U.S.C. § 841(a) (1) on three grounds: (1) that the district court erred in denying his motion to dismiss a superseding indictment issued against him; (2) that the prosecutor made improper, prejudicial remarks during the proceedings; and (3) that the district court erred in admitting evidence of his prior criminal activity. We affirm.

Ramirez argues that the trial court erred in denying his motion to dismiss the superseding indictment because the prosecutor abused the grand jury process and violated his right to compulsory process.

We review a district court's refusal to dismiss an indictment for prosecutorial misconduct de novo. United States v. Spillone, 879 F.2d 514, 520 (9th Cir. 1989), cert. denied, 111 S. Ct. 210 (1990). Dismissal of an indictment is appropriate only " 'if it is established that the violation substantially influenced the grand jury's decision to indict or if there is grave doubt that the decision to indict was free from substantial influence of such violations.' " Spillone, 879 F.2d at 521, quoting Bank of Nova Scotia v. United States, 108 S. Ct. 2369 (1988).

Ramirez does not argue that the prosecutor's conduct in subpoenaing the defense witnesses in any way influenced the grand jury's decision to indict. Ramirez alleges instead that the prosecutor's conduct had an adverse effect on the second trial. Ramirez has therefore failed to show he suffered any prejudice relating to the superseding indictment itself.

Ramirez also contends that his right of compulsory process was violated because the prosecutor's tactics interfered with his ability to re-call witnesses at the second trial who had testified in his behalf the first trial.

Ramirez has failed to show how the prosecutor's actions interfered in any way with his ability to call his prior witnesses. Ramirez never presented any evidence that his former witnesses were actually unavailable for the retrial, never made any attempt to subpoena them prior to retrial, and failed to call them at retrial. Where the defendant fails to show a witness was actually unavailable, no violation of the right of compulsory process occurs. See United States v. Valdez, 594 F.2d 725, 728 (9th Cir. 1979); United States v. Garmany, 762 F.2d 929, 937-38 (11th Cir. 1985), cert. denied, 474 U.S. 1062 (1986); cf. United States v. Lord, 711 F.2d 887, 891-92 (9th Cir. 1983).

Ramirez maintains that the district court erred in denying his motion to dismiss the superseding indictment because the indictment amounted to vindictive prosecution and violated his right to due process. We review vindictive prosecution claims either for abuse of discretion or for clear error. See United States v. Gann, 732 F.2d 714, 724 (9th Cir.), cert. denied, 469 U.S. 1034 (1984).

Although a presumption of vindictiveness is raised where the additional charges arise "out of the same nucleus of operative facts as the original charge," no presumption arises where the later charges are unrelated to the first. United States v. Martinez, 785 F.2d 663, 669 (9th Cir. 1986). Here, none of the charges in the superseding indictment, which involved marijuana distributions at different times, was connected or related to the two original charges. Under Martinez, no presumption of vindictiveness would arise in this situation. See also United States v. Robison, 644 F.2d 1270, 1272-73 (9th Cir. 1981).

Moreover, the district court found no evidence of actual vindictiveness. After reviewing the record, we conclude that the district court's finding is neither an abuse of discretion nor clearly erroneous. See Martinez, 785 F.2d at 669-70; Gann, 732 F.2d at 723-24; United States v. Burt, 619 F.2d 831, 837-38 (9th Cir. 1980).

Ramirez contends that the prosecutor improperly vouched for the credibility of witness Margie Rahilly, and improperly suggested during closing argument that other, inadmissible evidence existed that would seal the government's case against the defendant.

Because Ramirez did not object to either of these statements at the time they were made, we review for plain error. United States v. Laurins, 857 F.2d 529, 539 (9th Cir. 1988), cert. denied, 109 S. Ct. 3215 (1989). We reverse only if necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process. Id. To determine whether the alleged error rises to the level of plain error, we review it in the context of the entire record. United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir. 1988).

We disagree that the prosecutor's actions in regard to witness Margie Rahilly were improper. In meeting with the witness during the break, the prosecutor was merely attempting to refresh his witness' recollection. He did not use improper means in doing so. See United States v. Landof, 591 F.2d 36, 39 (9th Cir. 1978).

In regard to the prosecutor's remarks during closing argument, we cannot say, viewing the statements in light of the entire record, that the remarks amounted to plain error requiring reversal.

Ramirez argues that the trial court erred in admitting evidence of marijuana transactions with which he was previously involved under Fed.R.Evid. 404(b).

Under Rule 404(b), a court may admit evidence of other crimes to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," so long as its probative value is not substantially outweighed by its prejudicial effect. A district court has broad discretion in deciding whether to admit evidence under Rule 404(b). United States v. Feldman, 788 F.2d 544, 557 (9th Cir. 1986), cert. denied, 479 U.S. 1067 (1987).

The district court ruled that the evidence regarding the May 1988 drug transactions was admissible to explain an inconsistency in key defense witness Seaman Huish's testimony, and was relevant and probative of Ramirez' identity and knowledge of the August 1988 drug smuggling operation. We agree that the evidence was probative of Huish's ability to accurately identify Ramirez, and bore directly on the issues of Ramirez' knowledge and identity.

In addition, the prior acts showed a willingness by the defendant to engage in the drug conspiracy, and related to the background and development of the conspiracy. See United States v. Moreno-Nunez, 595 F.2d 1186, 1188 (9th Cir. 1979); United States v. Magnano, 543 F.2d 431, 435 (2d Cir. 1976), cert. denied, 429 U.S. 1091 (1977). Thus, the district court's admission of the prior "bad acts" evidence was not erroneous.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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