Unpublished Disposition, 935 F.2d 276 (9th Cir. 1987)

No. 89-30358.

United States Court of Appeals, Ninth Circuit.

Before HUG and D.W. NELSON, Circuit Judges, and CARROLL,^*  District Judge.

MEMORANDUM^** 

Rosario Amador Castro ("Amador") appeals his conviction and sentence for two counts of possession with intent to distribute over 100 grams of heroin and over 5 kilograms of cocaine on December 18, 1987, in violation of 21 U.S.C. §§ 841(a) (1), (b) (1) (A) & (B) (1988). We affirm.

Amador challenges the denial of his motion for judgment of acquittal, pursuant to Fed. R. Crim. P. 29, contending there was no evidence that he possessed cocaine.

Viewing the evidence in the light most favorable to the Government, United States v. Mundi, 892 F.2d 817, 820-21 (9th Cir. 1989), we find there was a sufficient connection between Amador and the cocaine to support the inference that he exercised dominion and control over the cocaine. United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986). May's December 15th call to the digital pager number that Amador gave him and the call back by "Huero," who May identified as Amador, linked Amador to the drugs sold on December 18th. Just before the arranged drug transaction, Amador's brother was seen leaving the Bristol Street house where Amador was arrested. See, e.g., United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1989).

Amador contends the trial court abused its discretion in allowing an agent to identify his voice and disallowing Amador's request to present an expert witness concerning the voice identification.

Initially, Amador contends the district court abused its discretion in finding an adequate foundation was established to permit the agent to identify Amador's voice at trial. See, e.g., United States v. Cooper, 868 F.2d 1505, 1519 (6th Cir.), cert. denied, 104 L. Ed. 2d 996 (1989).

We conclude there was a sufficient basis for Agent May's voice identification of Amador on the November 5 and December 15, 1987 telephone calls, pursuant to Fed.R.Evid. 901(b) (5). See, e.g., United States v. Thomas, 586 F.2d 123, 133 (9th Cir. 1978). The first telephone conversation occurred one week after May bought cocaine from Amador. The speaker also identified himself as "Huero," the same name Amador used during the cocaine sale. Further, the speaker responded to the digital pager telephone number that Amador had given to him. See also United States v. Turner, 528 F.2d 143, 163 (9th Cir.) (per curiam) (noting voice identification may be established through circumstantial evidence), cert. denied, 423 U.S. 996 (1975).

Amador further argues the short three to four minute face-to-face encounter when he sold Agent May cocaine on October 29, 1987, and the language barrier between them, made May's identification of him on the telephone too attenuated. Additionally, Amador notes that May was not absolutely certain that he identified Amador's voice. However, these factors go to the weight of the identification testimony and not to its admissibility. 5 J. Weinstein & M. Berger, Weinstein's Evidence, p 901(b) (5), at 901-66 to 901-67 (1989 ed.).

Amador also contends the trial court abused its discretion in excluding expert testimony on linguistics and voice identification characteristics. See, e.g., United States v. Miller, 874 F.2d 1255, 1266 (9th Cir. 1989). Fed.R.Evid. 702 permits expert opinion to assist the jury "to understand the evidence or to determine a fact in issue," within the discretion of the trial court.

We find no abuse of discretion. Based on the proffer made by Amador's counsel, the proposed expert would have testified on the science of linguistics and on factors which could have affected the voice identification, including the different languages used and physical voice similarities among family members. The advisory notes to Fed.R.Evid. 901(b) (5) state that "aural voice identification is not a subject of expert testimony." Here, the proffered expert testimony was essentially aimed at rebutting Agent May's voice identification. We have affirmed the exclusion of proposed expert testimony under similar circumstances. See Turner, 528 F.2d at 166; see also United States v. Kupau, 781 F.2d 740, 745 (9th Cir.), cert. denied, 479 U.S. 823 (1986).

Amador challenges the trial court's denial of his motions to exclude two prospective jurors for cause on grounds of actual bias.

We find no abuse of discretion in the denial of the motions to excuse for cause as no actual bias has been shown. United States v. Claiborne, 765 F.2d 784, 799-800 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986). See also United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977). With regard to prospective juror Douglas Thompson, we have repeatedly noted that a common employment relationship alone is insufficient to establish implied or actual bias.¹  Moreover, Thompson's prior law enforcement employment occurred a quarter of a century before the trial and lasted only one year. With regard to both Thompson and prospective juror Margaret Jackson, credit may also be given to their frank responses that they could impartially decide the case based upon the evidence presented. See, e.g., United States v. Poschwatta, 829 F.2d 1477, 1484 (9th Cir. 1987), cert. denied, 484 U.S. 1064 (1988); Claiborne, 765 F.2d at 800; United States v. Daly, 716 F.2d 1499, 1507 (9th Cir. 1983). In the absence of any showing of actual bias, we conclude the use of the peremptory challenges to strike Thompson and Jackson represented "a proper utilization of the peremptory tool." Claiborne, 765 F.2d at 800.

Amador also argues the trial court abused its discretion in the manner in which it conducted voir dire.

The scope and manner of voir dire is committed to the discretion of the trial court. See Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981); United States v. Chenaur, 552 F.2d 294, 302 (9th Cir. 1977); Fed. R. Crim. P. 24(a). "However, where ... the trial judge so limits the scope of voir dire that the procedure used for testing does not create any reasonable assurances that prejudice would be discovered if present, he commits reversible error." United States v. Baldwin, 607 F.2d 1295, 1298 (9th Cir. 1979).

We also conclude the district court did not abuse its discretion in the scope or manner in which it conducted voir dire. Amador's counsel had requested the opportunity to participate in voir dire. When his counsel objected to the voir dire of prospective juror Jackson, the trial court exercised its discretion to permit Amador's counsel to ask several questions concerning any bias she may have held against those involved with drugs and her ability to remain impartial. See Fed. R. Crim. P. 24(a).

Amador further challenges the denial of his request for additional peremptory challenges. Rule 24(b) provides for 10 peremptory challenges for the defendants where the charged offense may result in more than one year of imprisonment. Additional challenges may be permitted within the discretion of the court. Here, after the motions to excuse for cause were denied, Amador only exercised two peremptory challenges. See generally United States v. Vaccaro, 816 F.2d 443, 456 (9th Cir.) (discussing right to additional peremptory challenges), cert. denied, 484 U.S. 914 (1987).

Amador had submitted proposed voir dire examination questions. On appeal, Amador does not specify which proposed questions the court purportedly refused. The topics of many of these requested questions were covered by the trial court. As we have noted, " [i]t is not reversible error to fail to ask a question, even when submitted by counsel, if the failure did not affect the jury." United States v. Anzalone, 886 F.2d 229, 235 (9th Cir. 1989) (citation omitted); see also United States v. Giese, 597 F.2d 1170, 1182-83 (9th Cir.), cert. denied, 444 U.S. 979 (1979). No such showing has been made here.

Finally, Amador also argues the trial court gave leading questions during voir dire. The tenor of the examination, however, indicates the questions proffered by the court were " 'reasonably sufficient to test the jury for bias or partiality.' " United States v. Ferreboeuf, 632 F.2d 832, 835 (9th Cir. 1980) (quoting Baldwin, 607 F.2d at 1297), cert. denied, 450 U.S. 934 (1981); see also Claiborne, 765 F.2d at 799.

Amador raises three objections to the jury instructions.

First, Amador argues the trial judge committed reversible error in failing to give proposed theory of defense instructions. See, e.g., United States v. Escobar De Bright, 742 F.2d 1196, 1198 (9th Cir. 1984). Amador's theory of defense was that Agent May had mistaken him for his older brother, Silvestre. His proposed jury instruction on eyewitness identification enumerated factors for the jury to consider in assessing the reliability of the identification of Amador. Several of the factors enumerated in the proposed instruction overlap the credibility instruction given. We conclude the credibility instruction did not deprive Amador of his theory of defense. See, e.g., United States v. Lopez, 885 F.2d 1428, 1434 (9th Cir. 1989) (noting there is no error where the other instructions, viewed as a whole, cover the defense theory), cert. denied, 107 L. Ed. 2d 765 (1990).

Second, Amador argues the trial court did not properly give his mere presence instruction. He acknowledges that the aiding and abetting instruction given included a mere presence instruction. Amador argues that since aiding and abetting had not been charged, the jury's consideration of mere presence was limited to the aiding and abetting issue alone. It is settled that " [w]hether specified or not, [18 U.S.C.] Sec. 2(b) [aiding and abetting liability] is considered embodied in full in every federal indictment." United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987) (emphasis in original; citations omitted). Therefore, the issue becomes whether the proposed instruction was adequately covered by those given. We conclude the aiding and abetting instruction clearly embraced this issue. Cf. United States v. Ferris, 719 F.2d 1405, 1407-08 (9th Cir. 1983) (mere presence instruction given for conspiracy count but not substantive counts; same instruction on substantive counts would have been repetitive).

Finally, Amador contends the trial court did not properly instruct the jury on the specific intent element of the offense. See, e.g., United States v. Hernandez-Beltran, 867 F.2d 224, 226 (5th Cir.) (per curiam) (specific intent for section 841(a) (1)), cert. denied, 104 L. Ed. 2d 995 (1989). Specifically, Amador challenges the portion of the instruction defining the term "knowingly" as encompassing general and not specific intent. See United States v. Washington, 819 F.2d 221, 226 (9th Cir. 1987).

We do not agree that the contested portion of the instruction confused the concepts of general and specific intent in the overall instruction. The first sentence defining "knowingly" has been used in general intent as well as specific intent instructions.²  Moreover, the questioned instruction has been used as part of the standard definition of the term "knowingly." See, e.g., 1 E. Devitt & C. Blackmar, Federal Jury Practice & Instructions, Sec. 14.04, at 381 (1977 ed.).

V. Sentencing Guidelines: Minor or Minimal Participant

Amador challenges the sentencing court's finding that he did not merit offense level reductions as a "minor" or "minimal" participant, pursuant to U.S.S.G. Sec. 3B1.2, at 3.6 (Nov.1989).

The sentencing court expressly found that Amador was not a minimal participant and declined to revise the presentence report. Initially, Amador contends this is an inadequate factual finding. However, for purposes of section 3B1.2, we have noted that although specific sentencing court findings are encouraged, "a simple statement that the defendant was not a 'minor participant' will suffice as a factual finding." United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989) (citation omitted).

Amador has not shown this finding was clearly erroneous. See United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989) (per curiam) (citing Sanchez-Lopez, 879 F.2d at 557); see also U.S.S.G. Sec. 3B1.2, comment (backg'd), at 3.6 (Nov.1989). After Amador first sold cocaine to Agent May, he also supplied his digital pager and residence telephone numbers for future transactions. The evidence at trial could reasonably establish that the initial as well as each of the subsequent drug transactions was arranged through Amador.

VI. Sentencing Guidelines: Refusal to Depart Downward

Finally, Amador appeals the discretionary refusal of the district court to depart downward under the Sentencing Guidelines because of his low-level intelligence. We have already held that discretionary refusals to depart downward are not reviewable on appeal. See United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990).

AFFIRMED.