Unpublished Disposition, 848 F.2d 199 (9th Cir. 1986)

MEMORANDUM^* 

A jury convicted Andre Mims and Antonio Jenkins of conspiracy to tamper with a witness, a violation of 18 U.S.C. § 371, and tampering with a witness, a violation of 18 U.S.C. § 1512(a) (1) (subsequently amended). We affirm.

Mims raises two arguments on appeal: first, that the evidence was insufficient to support his conviction; second, that the prosecutor improperly vouched for the credibility of two government witnesses.¹ 

In reviewing the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the government. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). We must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (emphasis in original).

The essential elements of conspiracy are " an agreement to accomplish an illegal objective, coupled with one or more acts in furtherance of the illegal purpose, and the requisite intent necessary to commit the underlying substantive offense." United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). A conspiracy may be proved by circumstantial evidence. United States v. Murray, 751 F.2d 1528, 1534 (9th Cir.), cert. denied, 474 U.S. 979 (1985). The essential elements of witness tampering under former section 1512(a) (1) are: (1) the knowing use of intimidation, physical force, or threats against another person, (2) with intent to influence the testimony of any person in an official proceeding. 18 U.S.C. § 1512(a) (1). Viewing the evidence in the light most favorable to the government, we find that the evidence was sufficient to support Mims' conviction on both counts.

Kevin Frazier testified that he, Duon Walker, Jenkins, and others were involved in drug trafficking. The evidence also showed that Jenkins and Mims were friends, and that Mims was aware of--if not involved in--the drug operation. According to Frazier's testimony, Mims and others began harassing Frazier after they learned that he was cooperating with the government. Frazier testified to the following events: First, in mid-September, Mims and his cousin approached Frazier; Mims asked why Frazier was snitching on Duon Walker; Mim's cousin pushed Frazier; Mims displayed what appeared to be a real gun. Second, in late September, Chauncey--an alleged co-conspirator--drove toward Frazier, stopped, spoke with Frazier, and displayed a gun. Third, in October, Mims and his cousin went to Frazier's house and asked why Frazier was snitching on Duon Walker; Mims' cousin hit Frazier in the jaw; during the ensuing fist fight between Frazier and Mims' cousin, Mims' cousin shouted: "Shoot him, shoot him." Fourth, in late October, Frazier encountered Jenkins, who accused him of snitching on Duon Walker; Jenkins began firing a gun; Frazier ran and hid; Jenkins drove down the street where Frazier lived. Finally, on November 24, 1986, someone hit Frazier on the back of the head with a blunt object as Frazier sat at home watching television. Frazier testified that he had seen four men as he fell to the floor: Mims, Jenkins, Mims' cousin, and Chauncey. He also testified that Mims had kicked him as he fell, and that, as he fell, he had heard someone ask him why he was "telling on Rick [an alias used by Duon Walker]."

Mims urges us to reject this testimony on the grounds that the testimony and Frazier lack credibility. Matters of credibility, however, are for the jury to resolve. United States v. Vaccaro, 816 F.2d 443, 455 (9th Cir.), cert. denied, 108 S. Ct. 262 (1987). Our task on appeal is simply to consider whether, viewing the evidence in the light most favorable to the government, any rational jury could have convicted Mims. The evidence outlined above is sufficient to support Mims' conviction on both counts.

During the government's rebuttal argument, the prosecutor told the jury that two of the government's witnesses--Pat Green and Keith Walk--had "told the truth" on the witness stand. Despite the government's contentions on appeal, the prosecutor's comments did constitute vouching.

Because Mims objected to the prosecutor's comments by moving for a mistrial immediately after the conclusion of the government's rebuttal argument, we review the comments under the harmless error standard. See United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986).

Reversal on the basis of improper prosecutorial comments is warranted only where "in the circumstances of the trial as a whole, the remarks were so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." United States v. Patel, 762 F.2d 784, 795 (9th Cir. 1985). The prosecutor's comments in this case do not rise to the level of reversible error.

We have recognized that a "trial judge may cure the effect of improper prosecutorial comments 'by ... giving appropriate curative instructions to the jury.' " Endicott, 803 F.2d at 513 (quoting United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985)).

Although the jury instructions were not transcribed, the record indicates that the court instructed the jury that comments of counsel are not to be taken as evidence. Defendant's Proposed Jury Instruction No. 14 stated, in relevant part: "Statements and arguments of counsel are not evidence in the case, unless made as an admission or stipulation of fact.... You are to consider only the evidence in the case." In a discussion with counsel before closing arguments commenced, the court indicated that it was refusing only two of the defendant's proposed instructions: one relating to eyewitnesses, and one relating to association. RT 369. Proposed Instruction No. 14 made no reference to eyewitnesses or to association.

Moreover, the prosecutor did not vouch for the credibility of the government's key witness (and the sole eyewitness to the assault), Kevin Frazier. The testimony of Pat Green and Keith Walk served merely to corroborate Frazier's testimony.

Viewing the circumstances of the trial as a whole, we cannot conclude that the prosecutor's remarks deprived Mims of a fair trial.

We review the district court's denial of a motion for new trial for abuse of discretion. United States v. Lopez, 803 F.2d 969, 977 (9th Cir. 1986), cert. denied, 107 S. Ct. 1958 (1987).

Several criteria govern the district court's ruling on a motion for new trial. One is that the motion must be based on "newly discovered evidence." Lopez, 803 F.2d at 977. The evidence on which Jenkins' motion was based--the post-trial exculpatory affidavit of his co-defendant Mims--does not meet this requirement. We have previously held that " [w]hen a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a co-defendant, the evidence is not 'newly discovered.' " United States v. Diggs, 649 F.2d 731, 740 (9th Cir.), cert. denied, 454 U.S. 970 (1981). The district court did not abuse its discretion in denying Jenkins' motion for a new trial.

AFFIRMED.