Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1987)

MEMORANDUM^* 

Carlos Enrique Delgado appeals his conviction for possession and distribution of more than one kilogram of cocaine. Delgado contends that a mistrial occurred when a critical witness was allowed to invoke fifth amendment rights during cross examination. He also appeals the denial of his motion for a new trial following disclosures that one juror may have used drugs during the trial. This court reviews for abuse of discretion. United States v. Domina, 784 F.2d 1361, 1365 (9th Cir. 1986) (cross examination), cert. denied, 479 U.S. 1038 (1987); United States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986) (new trial). We affirm.

* On March 28, 1987, Delgado sold Philip Blitz two packages of cocaine. Blitz was working with government agents and the entire transaction was videotaped. Delgado was subsequently arrested for possession and distribution of the cocaine.

Blitz was working with the government as part of a plea bargain. Blitz agreed to plead guilty to one count, forfeit property, and "fully cooperate" with the government in its investigation of Delgado. In return, the government agreed to dismiss multiple drug and tax charges, recommend probation for the one remaining count, and pay Blitz one thousand dollars a month during the investigation. "Full cooperation" with the government included testifying at Delgado's trial.

During direct examination, Blitz testified that he had used cocaine after entering into his agreement with the government. During a recess, Blitz informed the prosecutor that he had also sold cocaine after making the agreement, and asked what he should do if asked about it during cross examination. The prosecutor told Blitz to confer with his own attorney.

When asked during cross examination about drug sales that occurred after Blitz became a paid government informant, Blitz invoked the fifth amendment privilege against self-incrimination. The court forbade questions regarding post-agreement sales. The court did, however, allow Delgado to call as a witness the prosecutor, who testified as to Blitz telling him he had sold cocaine after the agreement.

Delgado was convicted. Before Delgado was sentenced, his counsel discovered that one of the jurors had been arrested for drug violations prior to the trial and admitted to a detoxification center shortly thereafter. Delgado presented an affidavit in which the juror said she took drugs and was inattentive during the trial. Delgado also had circumstantial evidence that the juror purchased speed during the trial and that the juror fell asleep when the videotape evidence was shown.

Delgado moved for a new trial on the grounds that his constitutional rights to a competent jury had been denied. This motion was denied.

II

* Analysis of Delgado's sixth amendment claim requires two steps. The first is determination of whether Blitz's invocation of fifth amendment immunity was proper. If it was, the second step is determination of whether Blitz's invocation of the fifth amendment substantiated Delgado's motion for a mistrial.

Delgado argues that Blitz waived fifth amendment protection by responding in direct examination to questions about his own drug usage. Rogers v. United States states that when a witness has already admitted incriminating facts she "cannot invoke the [fifth amendment] privilege where response to the specific question in issue here would not further incriminate her." 340 U.S. 367, 372 (1951). We have previously recognized the phrase "further incriminate" as "the touchstone in Rogers." Hashagen v. United States, 283 F.2d 345, 352 (9th Cir. 1960). Thus, if answers to the questions Blitz would not answer could possibly have further incriminated him, the invocation was proper.

Although we have been forced to sharpen the concept of "further incriminate," see In re Seper, 705 F.2d 1499, 1501 (9th Cir. 1983), the instant case can be resolved fairly easily. In direct examination Blitz was asked, and answered, questions about personal possession and use of cocaine. In cross examination Blitz was asked--and would not answer--questions about selling cocaine. Simple possession and sale of cocaine are two separate crimes. Compare 21 U.S.C. § 844 with 21 U.S.C. § 841; see United States v. Garcia-Durate, 718 F.2d 42, 47 (2d Cir. 1983). Blitz did not enjoy testimonial immunity for illegal acts committed outside of his dealings with Delgado. Answers to questions regarding the sale of cocaine could incriminate him further.

This circuit has a strong policy of allowing witnesses much latitude in determining when to cease answering questions. See In re Seper, 705 F.2d at 1501. Blitz's invocation of the fifth amendment was proper; the district court did not abuse its discretion in limiting cross examination of Blitz.

B

Use of the fifth amendment privilege may result in striking the testimony of a witness. Delgado asks that a mistrial be declared because Blitz's testimony was not stricken.

Delgado claims that his situation is identical to that presented in United States v. Ray, 731 F.2d 1361 (9th Cir. 1984). The similarities, however, are merely superficial. In the first place, the witness being considered in Ray had not invoked the fifth amendment; rather, the district court had barred testimony under Federal Rules of Evidence 608(b). Id. at 1363-64. Rule 608(b) controls the admissibility of evidence offered to prove the honest or dishonest character of a witness; it does not control evidence of a bias. On appeal, this court determined that because the questions asked of the witness were intended to show his bias, rule 608(b) had been applied improperly and the testimony should have been allowed. Bias also relates to the second distinction between Ray and this case. This court found a danger of bias in Ray because the defendant had reported the witnesses' cocaine sales to police prior to the trial. The instant case contains no such motive for revenge.

Striking testimony is proper when "invocation of the privilege blocks inquiry into matters which are 'direct' and not merely 'collateral.' " United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980). Matters are direct when invocation of the privilege deprives the defendant of his right to test the truth of direct testimony or when answers to the questions would have undermined the government's case. Id. at 562. Furthermore, questions going to the credibility of a witness deal with collateral matters. United States v. Brutzman, 731 F.2d 1449, 1452 (9th Cir. 1984).

Delgado was not deprived of an opportunity to test the truth of any area about which Blitz testified during direct examination. The record does not show that Blitz refused to answer any cross examination questions concerning matters he had testified about during direct examination.

Delgado argues that Blitz's answers would have undermined the government's case by furthering the defense of entrapment and by showing Blitz's understanding of the plea bargain. It should first be noted that any benefit Delgado would have received from Blitz's testimony was equally available through the testimony of the prosecutor, who testified to the jury that Blitz had admitted to selling cocaine. See United States v. Nunez, 668 F.2d 1116, 1122-23 (9th Cir. 1981). Furthermore, Delgado was not precluded from questioning Blitz about his understanding of the plea bargain; if he so desired he could have questioned Blitz at great length, avoiding only questions requiring Blitz to actually incriminate himself.

The balance between the fifth and sixth amendments is delicate. The district court did not abuse its discretion by accommodating both in this trial.

III

Delgado presents two arguments concerning Eileen Feranda, a juror who allegedly used heroin and speed during the trial. The first is that Feranda lied to conceal prejudicial facts, an objection the government claims was not preserved. The second is that Feranda was incompetent, which the government argues cannot be considered.

* Delgado raised the issue of Feranda's veracity in a parenthetical in his motion for a new trial. The government's argument that a parenthetical is not enough merits little attention. More important is what occurred during the hearing on Delgado's motion. The district court asked: "Was there any inquiry of the court or counsel that she responded to in violation of her oath?" Delgado's counsel responded: "As far as the voir dire? I don't have the transcript and I can't raise that issue. I'm not sure exactly what the voir dire questions were."

Delgado argues that the issue was preserved in his moving papers. Preservation, however, goes beyond merely mentioning an issue. "It is a well-established principle that in most instances an appellant may not present arguments in the Court of Appeals that it did not properly raise in the court below." Rothman v. Hospital Service of Southern California, 510 F.2d 956, 960 (9th Cir. 1975) (emphasis added).¹  This rule is " 'essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues ... [and] in order that litigants may not be surprised on appeal of final decisions there of issues upon which they have had no opportunity to present evidence.' " Singleton v. Wulff, 428 U.S. 106, 120 (1976) (quoting Hormel v. Helvering, 312 U.S. 552, 556 (1941)).

There does not seem to be a bright-line rule to determine when a matter has been "properly raised" in the district court. Compare, e.g., Trustees of the Amalgamated Ins. Fund v. Geltman Indus., Inc., 784 F.2d 926, 931 (9th Cir. 1986) with Simpson v. Union Oil, 411 F.2d 897, 905 (9th Cir.), rev'd on other grounds, 396 U.S. 13 (1969). Normally, however, the matter must be raised sufficiently for the district judge to rule on it. See Inland Cities Express, Inc. v. Diamond Nat'l Corp., 524 F.2d 753, 755 (9th Cir. 1975).

Delgado did not affirmatively waive or concede the issue when questioned at the hearing. See Glaziers & Glassworkers Local Union No. 767 v. Custom Auto Glass Distribs., 689 F.2d 1339, 1342 n. 1 (9th Cir. 1982). However, by failing to press his argument, both at the hearing and in subsequent briefs, he effectively abandoned it. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1115-16 (9th Cir. 1987). When asked during oral argument to show where Delgado had pressed this argument, Delgado's counsel could only point to instances in which Delgado had asked for an evidentiary hearing. Each of these requests, however, was based on his allegation that Feranda was incompetent as a juror. Delgado did not raise the issue sufficiently for the district judge to notice it, let alone rule on it. Cf. Wolf v. Banco Nacional de Mexico, S.A., 739 F.2d 1458, 1460 (9th Cir. 1984), cert. denied, 469 U.S. 1108 (1985).

Given the strength of the videotape evidence against Delgado, there was no plain error in his conviction, and "no fundamental injustice will result from our declining to decide a question not presented to the trial court." United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984); see id. at 1012-13.

B

Delgado's second argument questions the competence of Feranda. He alleges that her use of speed made her inattentive and caused her to sleep during crucial videotapes.

The facts in this case are similar to those discussed in Tanner v. United States, 107 S. Ct. 2739 (1987). In Tanner, the Supreme Court held that intoxication by alcohol or drugs was not an external influence upon a juror and therefore did not constitute an exceptional circumstance about which jurors themselves could testify. Id. at 2748. Thus, Feranda's affidavits (or any other juror's testimony) concerning her own mental condition are inadmissible under Federal Rules of Evidence 606(b). 107 S. Ct. at 2748.

Tanner does not preclude an evidentiary hearing, but it does allow the district court to examine the proffered evidence and decide that a post-verdict evidentiary hearing is unnecessary. Id. at 2751. The record indicates that the district judge did examine the proffered admissible evidence and took notice of his own observations of Feranda during the trial. Cf. Smith v. Ylst, 826 F.2d 872, 877 (9th Cir. 1987), cert. denied, 109 S. Ct. 83 (1988). Excluding Feranda's testimony (either first or second hand), the evidence tends to show that Feranda uses drugs, may have purchased drugs one night during the trial, and was inattentive at one point during the trial. The district court did not abuse its discretion in determining that this was insufficient to support a motion for additional post verdict hearings. See Tanner, 107 S. Ct. 2751.

The district court's denial of Delgado's motion for a new trial is AFFIRMED.