Unpublished Disposition, 865 F.2d 266 (9th Cir. 1988)

MEMORANDUM^* 

Donald Scott Silks appeals from his conviction of conspiracy to import a controlled substance, transportation of a stolen aircraft in foreign commerce, and aiding and abetting the importation of a controlled substance. We affirm.

SEVERANCE

Silks cannot meet his burden of showing the manifest prejudice required to reverse the trial court's denial of a motion to sever. See United States v. Catabran, 836 F.2d 453 (9th Cir. 1988); United States v. Lewis, 787 F.2d 1318, 1320; amended 798 F.2d 1250 (9th Cir. 1986). Because only two defendants were tried together, and the court gave limiting instructions on evidence admissible only as to Silk's codefendant, the jury could properly sort out and weigh the evidence against the defendants independently. See Catabran, 836 F.2d at 460; United States v. DeRosa, 670 F.2d 889, 897-98 (9th Cir.), cert. denied 459 U.S. 993; 459 U.S. 1014 (1982). The district court did not abuse its discretion in denying Silks' motion to sever.

ADMISSION OF THE WEAPON AND RADIO

On review, a district court's ruling to admit evidence and determine relevancy should not be disturbed unless there is a clear abuse of discretion. United States v. Cox, 633 F.2d 871, 874 (9th Cir. 1980), cert. denied 454 U.S. 844 (1981). Similarly, a trial court's balancing of the probative value of the evidence against its prejudicial harm is also reviewed for an abuse of discretion. United States v. Rubio, 727 F.2d 786, 798 (9th Cir. 1983). Both the weapon and the CB radio are relevant given the charges of conspiracy to import and aiding and abetting the importation of a controlled substance. See Rubio, 727 F.2d at 798. Silks' prejudice argument is insufficient, in this case, to indicate an abuse of discretion. The trial judge admonished the jury that particular evidence related only to Silks' codefendant. Because the events that occurred could be separated into the flight down to Mexico, and the return trip, the jury could easily compartmentalize the evidence that pertained only to Silks' codefendant.

MOTIONS FOR NEW TRIAL

Silks argues that the district court abused its discretion in denying his motions for new trial. In his first motion, his claims were essentially two-fold: that the prosecution, by failing to disclose Piper's prior testimony in a narcotics case, prevented him from receiving a fair trial; and that Piper's recanted testimony requires a new trial. In his second motion Silks contends that juror misconduct necessitates a new trial.

Prosecutorial Misconduct

The prosecution failed to disclose that Piper, who was testifying under a plea agreement, had previously testified as a government witness in another narcotics case in 1972. He was not a codefendant in that case, and he received no consideration for his testimony. It was disclosed in trial, however, that Piper had been convicted of a felony, and had committed perjury during his own trial. The undisclosed evidence does not meet the "materiality" requirement outlined in Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667 (1985). It is unlikely this information could have affected the ultimate outcome.

Recanted Testimony

Given the extended evidentiary hearing and the district court's careful analysis of Silks' claims in its order we cannot say the court abused its discretion in denying his motion for a new trial based on Piper's alleged recanted testimony. The changes in the testimony were not significant.

Juror Misconduct

Upon its request during deliberations, the jury received additional copies of a composite drawing of the pilot. The pilot in the drawing, and during the events at issue, was clean shaven. Silks was wearing a beard at the trial. At least one member of the jury drew a beard on the drawing, presumably to see if the drawing resembled the present-day Silks.

It is not misconduct when the jury uses its own senses in weighing the evidence presented to it. The jurors must be given enough latitude to permit them to use common experiences and illustrations in reaching their verdict. United States v. Hephner, 410 F.2d 930, 936 (7th Cir. 1969). No extraneous evidence was introduced--the copies supplied to the jury were copies of the composite drawing already admitted into evidence. The jurors had observed Silks, and the type of beard he was presently wearing, in the courtroom during trial. The jurors' own attempts to evaluate the evidence to reach a verdict do not rise to the level of juror misconduct.

Although the court could have called counsel in to discuss the jury's request, we cannot find it reversible error that it failed to do so in these circumstances. See United States v. Kupau, 781 F.2d 740 (9th Cir.), cert. denied 479 U.S. 823 (1986).

SUFFICIENCY OF THE EVIDENCE

Viewing the evidence in the light most favorable to the prosecution, as required on appeal, the evidence supports Silks' conviction on all three counts. United States v. Harris, 792 F.2d 866, 868 (9th Cir. 1986). He was identified as the pilot by two government witnesses also involved in the conspiracy. A jury could find that Silks was guilty beyond a reasonable doubt.

AFFIRMED.