Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

The Nikrasches appeal their convictions stemming from a scheme to cheat gambling establishments by rigging slot machines. Susan argues (1) she was denied her sixth amendment right to counsel and (2) there was insufficient evidence to support her conviction. Dennis argues the prosecution improperly (1) withheld material impeachment evidence, and (2) engaged in prosecutorial misconduct at closing argument. They both contend the use of a deceased witness' prior testimony violated their confrontation rights. We reject these contentions and affirm.

DISCUSSION

Susan contends that her and her husband's representation by attorneys who are members of the same law firm created an impermissible conflict of interest in violation of the sixth amendment. See Burger v. Kemp, 107 S. Ct. 3114, 3120 (1987) (assumed without deciding that two partners are considered as one attorney); United States v. Donahue, 560 F.2d 1039, 1042 (1st Cir. 1977) (members of same law firm treated as one attorney). Such representation is not, however, per se violative of the sixth amendment. E.g., United States v. Allen, 831 F.2d 1487, 1494 (9th Cir. 1987). " [D]efendants may actually benefit from the joint efforts of two [attorneys] who supplement one another in their preparation." Burger, 107 S. Ct. at 3120. Susan must prove that an actual conflict of interest adversely affected her lawyer's performance. See id. Her motion to sever alone does not establish the conflict. See United States v. Sutton, 794 F.2d 1415, 1420 n. 2 (9th Cir. 1986).

We find no evidence of an actual conflict of interest. Even if her counsel's actions aided Dennis, the actions taken were not inconsistent with Susan's defense. We disagree that her counsel's decision not to call defense witnesses is indicative of a conflict. When a defendant does not show there are any witnesses who could have presented a defense, no actual conflict of interest existed. United States v. Crespo de Llano, 830 F.2d 1532, 1540 (9th Cir. 1987).

Even if a conflict of interest existed, we would conclude that Susan waived her right to counsel unhindered by any conflict of interest. See Allen, 831 F.2d at 1494. To satisfy the sixth amendment, the court must ask counsel whether any conflict exists, whether counsel has discussed with the clients the risk of conflict from joint representation, and whether the codefendants reaffirmed their desire to have counsel represent them jointly. See Crespo de Llano, 830 F.2d at 1538. In addition, the judge must personally advise each defendant of the right to separate counsel. Fed. R. Crim. P. 44(c). The record shows that these requirements were met.

2. Sufficiency of Evidence.

Susan contends there was insufficient evidence to support her conviction. We disagree. The interstate nexus was satisfied by Susan's travel between California and Nevada. See United States v. Dadanian, 818 F.2d 1443, 1447 (9th Cir. 1987) (travel by a member of the conspiracy across state lines will satisfy the element of traveling in interstate commerce). Moreover, the intent to promote an unlawful activity may be inferred from objective facts, such as her conduct once she arrived in Nevada. See United States v. Stanley, 765 F.2d 1224, 1241 (5th Cir. 1985). The travel of Susan's co-conspirators in returning to California with the jackpots of cash and cars was sufficient to satisfy the requirements of interstate travel in furtherance of the conspiracy.

Susan contends that as an innocent bystander, she did not commit any overt acts in furtherance of a conspiracy. However, "once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt a connection of defendant with the conspiracy, even though the connection is slight, is sufficient to convict [the defendant] of knowing participation in the conspiracy." United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977) (emphasis in original). Here the record shows that Susan acted as a "lookout," wearing a distractive necklace to divert attention away from those who were rigging the slot machine. She also was present when money was distributed after the jackpots. This evidence is sufficient for a rational juror to conclude that Susan did not merely associate with her co-conspirators but actively participated in the conspiracy.

3. Failure to Disclose Pecuniary Interest of Government Witness

Dennis claims that the prosecution's failure to disclose a government witness' pecuniary interest in the outcome of the trial denied him due process. We disagree. First, the interest at issue had no impeachment value. Any connection between the outcome of the trial and the success of the book is pure speculation. Thus the prosecution had no duty to disclose the information. Second, even assuming that the evidence had impeachment value, it must also be material. Bagley v. Lumpkin, 798 F.2d 1297, 1300 (9th Cir. 1986). The witness's testimony was merely cumulative of other evidence directly implicating Dennis in rigging the slot machines. Accordingly, the interest was not material as it did not undermine the confidence in the outcome of the trial.

Dennis contends the prosecutor in closing arguments improperly shifted the burden of proof. Assuming that the prosecutorial comments were improper, the misconduct must constitute plain error since Dennis failed to object to the comments at trial. See United States v. Berry, 627 F.2d 193, 199 (9th Cir. 1980), cert. denied, 449 U.S. 1113 (1981).

We find neither plain nor harmless error as the judge's immediate caution to the jury neutralized any possibility of harm. E.g., United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986); United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986). Dennis has not explained how the instruction did not cure any improper shifting of the burden. We will not assume that the jury ignored the curative instruction. Berry, 627 F.2d at 200.

Dennis further contends that the government knowingly used perjured testimony and made remarks in closing arguments that inflamed and prejudiced the jury. Dennis has failed to show that the testimony was perjured. The remark that Dennis enjoyed an expensive lifestyle was a reasonable inference from the evidence admitted and was not improper. See United States v. Birges, 723 F.2d 666, 671-72 (9th Cir.), cert. denied, 469 U.S. 863 (1984).

Both Susan and Dennis contend that the admission of the prior testimony of a deceased witness violated their confrontation rights. The witness had testified at the prior trial of codefendants but died within one year of her testimony.

The test for determining the reliability of out-of-court statements depends on the facts of each case and whether the "factors surrounding the making of the out-of-court statement, taken as a whole, indicate trustworthiness." Barker v. Morris, 761 F.2d 1396, 1403 (9th Cir. 1985), cert. denied, 474 U.S. 1063 (1986). We agree with the district court that the witness's testimony, although not videotaped as in Barker, was otherwise sufficiently reliable. Several factors, including corroboration, personal knowledge, testimony under oath, injurious revelations, and prior cross-examination by the codefendants in a manner consistent with appellants' interest, constitute particular guarantees of trustworthiness.

AFFIRMED.