Unpublished Disposition, 855 F.2d 863 (9th Cir. 1988)

MEMORANDUM^* 

Appellants were convicted following a jury trial on a nine-count indictment for their roles in a scheme to manufacture and distribute methamphetamine. We affirm.

Appellants Payseur, Spargo and Spencer allege error in the denial of a bill of particulars. A bill of particulars is unnecessary where the indictment is sufficiently specific to apprise the defendant of the charges against him, and the defendant receives full discovery. United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984). Both conditions were satisfied here. Moreover, no appellant has explained how he was prejudiced by the absence of a bill. See United States v. Calabrese, 825 F.2d 1342, 1347 (9th Cir. 1987).

Appellants Payseur and Spargo claim error in the court's decision to withhold disclosure of the informant's identity until shortly before trial. The court did not abuse its discretion by refusing to compel an earlier disclosure. In setting the time for disclosure, the court properly weighed the public's interest in protecting the information and the informer against the defendants' right to prepare. See Roviaro v. United States, 353 U.S. 53, 62 (1957); United States v. Buffington, 815 F.2d 1292, 1299 (9th Cir. 1987). Nor were appellants prejudiced. The informer refused their requests for an interview, and they were able to attack his credibility adequately at trial. In United States v. Opager, 589 F.2d 799 (5th Cir. 1979) the government wilfully disobeyed the court's orders; here the government fully complied.

All appellants except Rash claim the court erred by not granting their motions for severed trials. Joint trials are the general rule in conspiracy cases. Severance is unwarranted when the evidence would be admissible in separate trials (United States v. Crespo de Llano, 838 F.2d 1006, 1020 (9th Cir. 1987) (as amended)), and most of the evidence here was admissible against all appellants. Cf. United States v. Vaccaro, 816 F.2d 443, 449 (9th Cir. 1987). Severance was not required to permit Harr and Powers to testify; both were available to testify at the joint trial had they been willing to do so, and appellants have not shown either would have testified at separate trials. See United States v. Seifert, 648 F.2d 557, 563 (9th Cir. 1980).

Spargo argues the court erred by refusing to question potential jurors as to their attitude toward government informants. The court was not required to undertake such an examination. Government informants do not comprise a class toward which jurors might have a preconceived bias. Additionally, the court's inquiries fulfilled its duty to ferret out possible bias toward government witnesses. Cf. United States v. Contreras-Castro, 825 F.2d 185, 187 (9th Cir. 1987).

Appellants Crum, Spargo and Spencer allege prejudicial error because the court refused to impanel a new jury after Harr and Powers pled guilty. Any possible prejudice from the jury's knowledge of their plea was cured by the court's instruction to the jury that it was not to assume anything from the absence of the defendants at the trial. See United States v. Escalante, 637 F.2d 1197, 1202 (9th Cir. 1980).

The court did not abuse its discretion by excluding the expert testimony of Dr. Burglass as to the effect of drug use on memory. See United States v. Rohrer, 708 F.2d 429, 434 (9th Cir. 1983). Nor did the court err in excluding evidence intended to impeach Coen; some of the excluded evidence would have been irrelevant, the remainder cumulative, and appellants were afforded an adequate opportunity to attack Coen's credibility through cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir. 1987).

The court did not err in concluding that Debra Bilbrey waived her Fifth Amendment rights regarding matters relating to Coen and his drug use. Appellants were not entitled to have Bilbrey's testimony received without undergoing the rigors of cross-examination. See United States v. Nobles, 422 U.S. 225, 241 (1975). The court also acted within its discretion in prohibiting Mark Lee from testifying regarding his belief in the value of Coen's testimony under oath.

The evidence seized from Rash's house was adequately linked to the conspiracy charged and was relevant proof of that conspiracy. See United States v. Rohrer, 708 F.2d at 435. Spencer's statements were properly received as admissions. United States v. Taylor, 802 F.2d 1108, 1117 (9th Cir. 1986). Although the government did not provide Spencer's statements during discovery, the government met its burden under Fed. R. Crim. P. 16(a) (1) (A) by providing a summary of the statements. Spargo's address book was seized pursuant to a routine inventory search and was therefore admissible. See Illinois v. Lafayette, 462 U.S. 640 (1983); United States v. Passaro, 624 F.2d 938, 943-44 (9th Cir. 1980). It is of no importance that the booking process had been completed before the item was identified and segregated as possible evidence. See United States v. Oaxaca, 569 F.2d 518, 524 (9th Cir. 1978). Finally, the rental receipts and storage records were not inadmissible hearsay because they were not offered to corroborate Coen's testimony that Spencer had visited the storage locker and not to show rent had been paid.

Payseur was not entitled to an instruction on the lesser included offense of simple possession. The testimony indicated Payseur received approximately $45,000 in cash and 11 pounds of methamphetamine for his role in the manufacture and distribution of the drugs. A rational jury could not have found him guilty of simple possession. See United States v. Espinosa, 827 F.2d 604, 615 (9th Cir. 1987). The court's instruction adequately presented appellant's theory as to Coen's credibility. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

Payseur incorrectly argues the indictment charged separate conspiracies. On the contrary, the indictment charged a single conspiracy to produce methamphetamine on four different occasions. The evidence was sufficient to convict Payseur of the distribution charges. Coen testified Payseur received significant quantities of methamphetamine and the profits from the distributions. While there was no direct evidence Payseur distributed the drugs, evidence indicated he aided and abetted the distribution. See United States v. McKoy, 771 F.2d 1207, 1215 (9th Cir. 1985). Coen's testimony also sufficiently linked Payseur to the production of drugs in November and December and the subsequent distribution of the drugs.

Rash's conviction of count 9 was proper under Pinkerton v. United States, 328 U.S. 640 (1946). Payseur's statements were properly admitted against Rash, since there was sufficient evidence, including evidence independent of the statements, to prove a conspiracy existed and the statements were made during and in furtherance of the conspiracy. Bourjaily v. United States, 107 S. Ct. 2775 (1987). Additionally, there was sufficient evidence connecting Rash with the conspiracy. See e.g., United States v. Abushi, 682 F.2d 1289, 1293 (9th Cir. 1982).

Spencer's convictions were rational in light of Coen's testimony. The jury could infer Spencer planned to sell the drugs from Coen's testimony that Spencer sought more drugs in order to pay off his debts.

Appellants Crum, Payseur and Spencer claim their sentences were unjustifiably disparate compared to the sentences of Harr and Powers who pled guilty before trial. Disparate sentences are permissible so long as "proper reasons for the disparity [are] 'readily discernible' from the record." United States v. Paris, 827 F.2d 395, 402 (9th Cir. 1987) (citation omitted). Here the record indicates appellants sentences were based on their individual circumstances: Crum was a major drug dealer and provided positive urine samples after his arrest; Spencer assisted in manufacturing the drugs and was found in possession of drugs after the incidents charged in the indictment; Payseur and Coen were the most active participants in the conspiracy and Payseur had an extensive prior criminal record. The trial testimony regarding the participation of Harr and Powers was weak by comparison, and there was no evidence of continued criminal activity by either.

Payseur claims the court failed to consider his employment as a mitigating factor. The record indicates the court considered the evidence but found it unhelpful.

Miscellaneous issues raised by Spargo are not supported by argument and are thus considered abandoned. United States v. Loya, 807 F.2d 1483, 1486-87 (9th Cir. 1987).

We find no reason to reconsider the motions panel's determination with respect to Spargo's bail motion.

AFFIRMED.