Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

MEMORANDUM^** 

Lester Alan Goodall appeals his conviction for conspiracy to distribute cocaine, 21 U.S.C. § 846, on the grounds that (1) the district court improperly refused to suppress evidence resulting from a search of Goodall's residence, and (2) that the district court failed to adequately present Goodall's theory of defense to the jury. Because we believe that neither of these claims has merit, we affirm the conviction.

* In resolving appellant's first claim, we need not determine whether the warrant authorizing the search of Goodall's residence was supported by probable cause, but rather only whether "the magistrate had a 'substantial basis for ... conclud [ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39 (1983), quoting Jones v. United States, 362 U.S. 257, 271 (1970). Applying this deferential standard to the facts of this case, we hold that the issuing magistrate did have a "substantial basis" for concluding that probable cause existed at the time the warrant was sought.

The affidavit upon which the warrant to search Goodall's residence was based was prepared by Agent Allan Roth, a drug enforcement agent with 14 years of experience. In his affidavit, Agent Roth recounted a series of allegations made by confidential informant number two (CI# 2) regarding Goodall's criminal activities. CI# 2 alleged that s/he had personal knowledge of a group consisting primarily, but not entirely, of Columbians in the Los Angeles area who have been heavily involved in the distribution of cocaine. CI# 2 stated that s/he had been present with and discussed with the members of this group their involvement in cocaine trafficking. CI# 2 went on to allege that this group consisted of, in part, a male by the name of Lester Goodall who resided at 4468 Rolando Boulevard, San Diego. According to CI# 2, Goodall, El Burro (Jorge Ivan Orozco) and Maria Cosoleto were principals in this organization. CI# 2 alleged that s/he had known Goodall for several years, and that s/he had dealt cocaine for Goodall in the past year and had seen Goodall in possession of large amounts of cocaine at his residence. CI# 2 further stated that Goodall customized secret compartments in vehicles for the surreptitious transportation of large amounts of cocaine and money. CI# 2 alleged that Goodall built the compartments behind the center arm rest of the rear seat, performing the reconstructive body work at his residence. CI# 2 stated that s/he observed a late model Toyota Cressida at Goodall's residence in December, 1985 that had a secret compartment installed. CI# 2 stated that s/he had seen this secret compartment. Finally, CI# 2 stated that Orozco (a co-defendant) drives a late model black Toyota Cressida with a customized secret compartment behind the rear seat, identical to the one that s/he observed at Goodall's residence in San Diego. Orozco had already been independently identified as a member of a cocaine trafficking organization by another confidential informant who had proved reliable to the police in the past.

Although CI# 2's testimony lacks a great deal of specificity, we cannot say that the issuing magistrate did not have a substantial basis for believing probable cause existed. As the Supreme Court has noted, a probable cause determination is one which depends upon "the totality of the circumstances." Massachusetts v. Upton, 466 U.S. 727, 732 (1984). "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. We believe that the magistrate authorizing the search of Goodall's residence had a substantial basis for concluding this standard had been met.

In this regard, we note that a magistrate may properly rely on normal inferences drawn by the surrounding circumstances and the allegations of fact contained in the affidavit. United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970). Moreover, a magistrate may properly rely upon an opinion expressed in the affidavit from an experienced law enforcement officer about the criminal significance of otherwise seemingly innocent conduct, when the opinion is based on the officer's experience in a criminal area. See, e.g., United States v. Mendenhall, 446 U.S. 544, 565 (1980) (Powell, J., concurring); Brown v. Texas, 443 U.S. 47, 52 n. 2 (1979). Here, the magistrate was undoubtedly taking into account the fact that Agent Roth had extensive experience in drug enforcement and investigation. Finally, some of CI# 2's allegations, including Goodall's address and Orozco's participation, were corroborated by independent police investigation. The Supreme Court has recognized the value of corroborative details of an informant's tip by independent police work in establishing probable cause. See Gates, 462 U.S. at 241.

II

Goodall also argues that the district court failed to adequately present his theory of defense to the jury. We disagree. At the outset, we note that the adequacy of the court's instructions to the jury is to be determined by examining the instructions as a whole, and not by the giving or the failure to give any one or more instructions. United States v. Park, 421 U.S. 658 (1975). It is not error to refuse a proposed instruction so long as the other instructions in their entirety cover the defense's theory. United States v. Kenny, 645 F.2d 1323, 1337 (9th Cir.), cert. denied, 452 U.S. 920 (1981). The district court has broad discretion in formulating the instructions and need not give an instruction in the precise language proposed by the defendant. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985). With these principles in mind, we now turn to Goodall's claim.

Goodall's theory of defense, simply put, is that he was secretly infiltrating the drug trafficking organization in order to assist authorities. Goodall contends that he provided drug traffickers with automobiles containing secret compartments for the transportation of drugs, and kept records and photographs of each modified car, all in order to aid law enforcement officials. Goodall contends that he planned to provide his records and photographs to police investigators, who would then be able to follow the automobiles to the highest levels of drug distribution in Southern California.

Goodall contends that this theory of defense was not adequately presented to the jury. He argues that either of the two instructions he proposed to the district court would have sufficed. The first instruction Goodall proposed deals with the issue of specific intent:

The crime charged in this case is a serious crime which requires proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent the government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all facts and circumstances surrounding the case.

An act or a failure to act is "knowingly" done, if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

(Specific Intent Instruction) Defendant's Proposed Instruction No. 8. ER Tab No. 6.

Goodall's second proposed instruction relates to police informants:

A person who participates in a crime solely for the purpose of providing law enforcement agencies with information about the crime or its other participants cannot himself be found guilty of the crime.

If the evidence in the case raises a reasonable doubt whether during his participation in any of the crimes charged in the indictment a defendant was acting solely for the purpose of providing law enforcement agencies with information about the crime or its other participants, you must find the defendant not guilty of that crime.

(Police Informant Instruction) Defendant's Supplemental Proposed Instruction No. 3. ER Tab No. 7.

The district court rejected each of these instructions and instead directed the jury to return a verdict of guilty on the conspiracy charge only if the jury found that the defendant joined the conspiracy "knowing of the unlawful plan and intending to help carry it out." ER Tab No. 8. The court also instructed the jury that it could find defendant guilty on the conspiracy charge only if Goodall acted knowingly and intentionally.

We believe these jury instructions were the functional equivalent of the specific intent instruction proposed by Goodall. If the jury believed Goodall's evidence that he was acting in order to help law enforcement officials, then the jury could not have found that he "intended to help carry [the unlawful plan] out," at least any more than the jury could have found that he "purposely intended to violate the law," had the specific intent instruction been given. We conclude that a jury, if it believed Goodall's evidence, would not have found that he intended to help carry out the unlawful plan since his objective--his intent--would have been precisely the opposite, i.e., to thwart the plan. Thus, implicit in the verdict of guilty is a rejection of Goodall's evidence as to his intentions, evidence which is thin at best.

Goodall does not cite any cases which hold that a "specific intent" charge is required. In United States v. Ramirez, 710 F.2d 535 (9th Cir. 1983), which involves a defense similar to Goodall's, a specific intent charge was given to the jury. This court, in rejecting defendant's argument that he was entitled to a police informant charge similar to Goodall's second proposed instruction, held that the specific intent charge was sufficient, not that it was necessary. As we have noted, there is no significant difference between the specific intent charge and the instructions that were actually given. Moreover, Goodall cannot point to any case in which a special police informant charge has been held to be necessary.

Thus, because the charge given was just as effective as a specific intent charge would have been, and because a police informant charge need not have been given, the district court properly rejected defendant's proposed instructions. The jury considered, and rejected, Goodall's defense.

AFFIRMED.