United States of America, Plaintiff-appellee, v. Ricardo Negrete-diaz, Defendant-appellant, 108 F.3d 340 (9th Cir. 1997)

Before: FLETCHER and TROTT, Circuit Judges, and JENKINS, Senior District Judge.^* 

MEMORANDUM^** 

Ricardo Negrete-Diaz appeals his conviction, following a jury trial, for importation of methamphetamine in violation of 21 U.S.C. §§ 950 and 962 and possession of methamphetamine in violation of 21 U.S.C. § 841(a) (1). Appellant argues that the district court erred by denying his request to strike a "joint possession" instruction, contending that the court's sanctioning of a joint possession theory created a risk that the jury would find him guilty without making the requisite finding of knowledge. We review a district court's formulation of jury instructions for abuse of discretion. United States v. de Cruz, 82 F.3d 856, 864 (9th Cir. 1996). Appellant's own testimony created the possibility that a jury could find joint possession of the drugs by Jose Luis and Appellant. Because the joint possession instruction was consistent with the facts of the case, we hold that the district court did not abuse its discretion by giving the instruction.

Appellant also contends that the district court erred in denying his motion to dismiss the indictment based on underrepresentation of Hispanics in the grand jury pool. Because this court has held that a defendant who presented identical evidence failed to establish underrepresentation, United States v. Esquivel, 88 F.3d 722 (9th Cir.), cert. denied, 117 S. Ct. 442 (1996), we affirm the district court's denial of Appellant's motion.

AFFIRMED.