Unpublished Disposition, 933 F.2d 1018 (9th Cir. 1991)

MEMORANDUM^* 

In these consolidated cases, Jeffrey Victor Radin and Christopher Webber appeal their convictions, following a jury trial, for conspiracy to distribute marijuana, possession with intent to distribute marijuana, and aiding and abetting, in violation of 21 U.S.C. §§ 846, 841(a) (1), 841(b) (1) (B), and 18 U.S.C. § 2. Radin also challenges his sentence imposed by the district court. We affirm.

We find no abuse of discretion in the district court's limitations on the scope of discovery afforded appellants under the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83 (1963). It is well settled that the Government is generally not required to provide discovery of evidence that is not in its possession, custody, or control. See, e.g., United States v. Chavez-Vernaza, 844 F.2d 1368, 1375 (9th Cir. 1987). We have held specifically that the Government is not required to produce evidence that is in the possession and control of a foreign government. United States v. Friedman, 593 F.2d 109, 119-20 (9th Cir. 1979); United States v. Flores, 540 F.2d 432, 437 (9th Cir. 1976).

In this case, the Government presented uncontested evidence, both at a pretrial motion hearing and at trial, that it was the policy of the Royal Canadian Mounted Police to not release the information requested by appellants regarding government informant Tony Guerard. Additional evidence revealed that whatever information was provided to the United States prosecutor was, in turn, provided to the defense.

This is not a situation where the federal prosecutor had access to the requested information. See United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir.), cert. denied, 110 S. Ct. 167 (1989). Nor is it a situation where, despite the existence of a joint investigation and agency cooperation, the United States prosecutor failed to make a good faith effort to obtain information in the possession of a foreign government. See United States v. Paternina-Vergara, 749 F.2d 993, 998 (2d Cir. 1984), cert. denied, 469 U.S. 1217 (1985). Instead, we conclude that whatever documents were withheld "reflected the preference of the Canadian authorities, not the reluctance of the United States authorities." Id.

We similarly find no abuse of discretion in the district court's refusal to order disclosure of Drug Enforcement Agency reports relating to interviews with government informant William Arends. We conclude, after a thorough review of the trial transcript, that disclosure of these reports for appellants' use on cross-examination would not have made any difference to the outcome of the trial. See, e.g., Bagley v. Lumpkin, 798 F.2d 1297, 1300 (9th Cir. 1986).

The appellants argue that disclosure of the report was necessary for its impeachment value because it contained a list of crimes for which Arends had been immunized by the Government in exchange for his testimony at trial. Arends was cross-examined by defense counsel in detail regarding numerous past crimes for which he had received immunity, and acknowledged to the jury that this was one of his motives for agreeing to testify. We conclude that after this opportunity for cross-examination, disclosure of the report would not have further enabled the defense to discredit Arends. See United States v. Marashi, 913 F.2d 724, 732 (9th Cir. 1990).

The appellants contend that the instruction concerning constructive possession was erroneous. We agree because we have held that the language of the Ninth Circuit Pattern Jury Instruction used in this case is not an accurate statement of the law. United States v. Terry, 911 F.2d 272, 280 (9th Cir. 1990). However, in this case, we find this error to be harmless beyond a reasonable doubt. The appellants were convicted of conspiracy and the jury was instructed on the Pinkerton rule that conspirators are liable for the substantive offenses of their co-conspirators that are performed in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647 (1946). The evidence is unequivocal that the marijuana was in the actual possession of co-conspirators when it was delivered to defendant Haiken's residence and ultimately seized there. Reliance on any constructive possession was superfluous when the evidence clearly revealed actual possession by co-conspirators. We therefore conclude that the error in the district court's formulation of the jury instruction on constructive possession was harmless beyond a reasonable doubt.

Finally, after a comprehensive review of the trial transcript in this case, we conclude that the appellants' remaining contentions do not have merit. Accordingly, the appellants' convictions and sentence are affirmed.

AFFIRMED.