Unpublished Disposition, 930 F.2d 920 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Edward Eugene Banks appeals his conviction and sentence under the Sentencing Guidelines, following a jury trial, for conspiracy to distribute and to possess with intent to distribute phencyclidine (PCP) in violation of 21 U.S.C. § 846, and distribution and possession of PCP with intent to distribute in violation of 21 U.S.C. § 841(a) (1). He makes two arguments on appeal: first, that the district court erred in refusing to give an addict-informer instruction; second, that the district court violated his due process rights by determining his offense level based on a greater quantity of PCP than the government preserved for testing by the defendant. We affirm.

BACKGROUND

On May 25, 1988, defendant Edward Eugene Banks had several telephone conversations with Kim Perkerson, an undercover informant of the Drug Enforcement Administration (DEA). During these conversations, Banks agreed to sell one-half gallon of PCP to a customer of Perkerson. Later that same day, Banks sold the customer, who was actually DEA Special Agent Frank Burney, two thirty-two ounce jars filled with a liquid resembling PCP for $3,300 in cash. Testing by the DEA laboratory determined that the liquid consisted of approximately 134.3 grams of pure PCP.

In a separate transaction, on June 3, 1988, Banks sold agent Burney a one-gallon bottle containing a liquid resembling PCP for $6,000 in cash. Testing by the DEA determined that the liquid consisted of approximately 269.5 grams of pure PCP. At trial, a DEA chemist explained that, after testing the PCP purchased from Banks, most of the PCP was destroyed for safety reasons. Nonetheless, pictures of the entire quantity were taken and representative samples tested and preserved.

On September 8, 1989, Banks was arrested by the DEA. The government explains that the arrest was postponed for more than a year after the PCP transactions took place "to protect the identities of the undercover agent and confidential informant." Appellee's Brief at 7. On December 5, 1989, a jury found Banks guilty on all counts. He was sentenced to 240 months imprisonment, followed by five years supervised release.

DISCUSSION

Banks contends that the district court erred in failing to give his proposed addict-informer instruction regarding the testimony of Kim Perkerson. Banks's proposed instruction stated:

If an informer is also a narcotics addict, there are additional reasons why his testimony should be considered with great care. An addict has a constant need for a supply of drugs and for money to support his habit, and also may have abnormal fear or imprisonment in which his supply of drugs might be cut off. These are special circumstances which you may consider in weighing testimony of this kind. You of course may give the testimony such weight as you think proper, after considering all relevant circumstances.

This circuit has yet to resolve the split in the appropriate standard of review for denial of a proposed jury instruction. See United States v. Whitehead, 896 F.2d 432, 434 (9th Cir. 1990). In this case, however, the standard of review does not affect our decision.

An addict-informer instruction is appropriate when the witness is an addict. United States v. Ochoa-Sanchez, 676 F.2d 1283, 1289 (9th Cir.), cert. denied, 459 U.S. 911 (1982). The instruction, however, is "unnecessary in several situations, including: (1) when the addiction is disputed; (2) when the defense adequately cross-examines the witness about the addiction; and (3) when another cautionary instruction is given." Id. (citations omitted).

Although only one of the circumstances listed in Ochoa-Sanchez need be present to deny the instruction, in this case all three circumstances exist. First, there was a dispute as to Perkerson's addiction. Perkerson admitted that he may have been addicted to drugs in the past. But he stated that his addiction has "more or less disbursed." Reporter's Transcript (RT) 12/06/89 at 138-39. In addition, Perkerson stated that he was not using any drugs during the investigation of Banks. Id. at 144. Second, Banks questioned Perkerson at length about his past drug use. Id. at 138-40. Finally, the district court instructed the jury to use caution in evaluating the testimony of government informers. The court therefore did not err in denying the proposed addict-informer instruction.

Banks also argues that his due process rights were violated when the district court determined his offense level under the Sentencing Guidelines based on a greater quantity of PCP than the government preserved for testing by the defendant. We need not reach the merits of this argument because Banks has waived this argument below.

At no time before or during trial did Banks contest the findings of the DEA that the liquid substances Banks sold to agent Burney contained a total of 403.8 grams of pure PCP. Even more telling, Banks stipulated at trial that "the photographs set forth in Government's Exhibits 3 and 7 may be substituted as evidence for the containers depicted in the photographs and the contents of the containers." RT 12/05/89 at 59. " [O]nce a matter is stipulated, it is conclusively proven." United States v. Rubio, 727 F.2d 786, 797 (9th Cir. 1983). By stipulating that government photographs of the containers may be substituted as evidence of the containers and their contents, Banks waived his argument that the government should have preserved the bulk of the liquid containing the PCP.

AFFIRMED.