Unpublished Disposition, 874 F.2d 817 (9th Cir. 1987)

MEMORANDUM^* 

Paul Evans (Evans) appeals his conviction for conspiracy to distribute cocaine, distribution of cocaine, and distribution of cocaine in excess of 500 grams, in violation of 21 U.S.C. §§ 841 & 846. In addition, Evans appeals the 15-year sentence imposed by the district judge. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

On May 8, 1987, an Alaska Airlines employee notified the Seattle police department that a suspicious package arrived from Los Angeles addressed to Ken Juarez. The police officers confronted Juarez after he arrived to claim the package and obtained his permission to search it. The package contained cocaine. Juarez agreed to cooperate with the authorities and lead them to his supplier. Juarez told the police that his supplier was Darryl Winston, whose supplier was Winston's uncle Paul Evans. Winston and Juarez both testified that Winston had sent cocaine to Juarez on prior occasions beginning in 1985 in the same manner. Juarez also testified that he had purchased cocaine from Leesa Uribe, Evans' live-in girlfriend, but never personally from Evans. Winston testified, however, that Evans supplied all the cocaine he sent to Juarez from 1985-1987.

On May 8, 1987, Juarez made several phone calls from the police station, all of which were recorded and admitted into evidence at trial. Juarez called Winston, and told him that he knew a buyer interested in a kilogram of cocaine. Juarez also called Evans at home, and testified that he talked to Evans shortly, and to Leesa Uribe about a cocaine purchase.

Winston testified that he agreed to supply the cocaine during a telephone conversation with Juarez, but that the transaction would have to be on a "cash and carry" basis. Winston flew to Seattle on May 28th to ensure that the buyer had the money before the cocaine was delivered. Juarez picked Winston up at the airport, and they both checked into a local motel. Juarez introduced an undercover police officer as the alleged buyer, and the police officer showed Winston the purchase money. Winston and Juarez returned to the motel, and Juarez was told to leave the room. Winston testified that he then called Evans at his home in Los Angeles, and Evans told him that a "mule" would deliver the cocaine. The motel phone records corroborate Winston's testimony that he called Evans.

Winston later received a phone call from Evans, who explained that he was at the airport. Winston picked up Evans and proceeded to a local restaurant to meet the cocaine buyer. Winston first went to the "buyer's" car to make sure he still had the money. After Winston saw the money, he returned to Juarez' car where Evans was waiting. Winston then returned with the package of cocaine, and both Winston and Evans were arrested.

A. The denial of Evans' motion for a continuance.

On November 6, 1987, Winston entered a plea of guilty to the distribution count and agreed to testify against Evans. On the opening day of trial (November 9th), Evans moved to continue the trial to allow him time to investigate the circumstances of the plea and Winston's background. The district court denied Evans' motion but stated that Evans could move for a recess if Winston testified.

A district court's decision denying a motion for a continuance is reviewed for an abuse of discretion, see e.g., United States v. Pederson, 784 F.2d 1462, 1464 (9th Cir. 1986), unless the defendant's sixth amendment right to counsel is implicated. See United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986) (when the defendant's sixth amendment right to counsel is implicated, then the court will balance several factors to determine if the denial was fair and reasonable). Evans was not denied his right to counsel, consequently we review the district court decision solely for an abuse of discretion.

The district court did not abuse its discretion. First, the trial was originally scheduled for August but was continued two times at the request of the defense. Second, since Evans and Winston are related, Evans' attorney Donion could have interviewed Evans over the weekend for background information on Winston. Third, Evans, in effect, argues that the district court abused its discretion because it refused to continue the trial in order for Donion to conduct a pre-trial interview of Winston. Evans, however, was not entitled to a pre-trial interview of a government witness. See United States v. Cutler, 806 F.2d 933, 936 (9th Cir. 1986) (per curiam).

In Cutler, this court upheld a district court decision denying a defendant's request for a pre-trial interview of a government witness. The court reasoned that depositions, under Fed. R. Crim. P. 15, are not allowed merely to discover material for cross-examination. Id. The court held that the defendant could not use a demand for an interview to get informally what he could not have under the rule. "Moreover, the government was not obliged to make [the witness] available for trial nor did [the witness] have to consent to an interview." Id.

In this case Winston refused to consent to any pre-trial interview, and Evans' right to discover Jencks material did not arise until after Winston testified. The district court advised Evans that if the government called Winston as a witness, then he would grant a recess for Donion to talk to Winston. Evans, however, never moved for that recess.

Finally, there is no showing of actual prejudice. Donion cross-examined Winston extensively about his prior use and addiction to cocaine, and alleged jealousy and bias against his uncle, Evans, for allegedly stealing a girlfriend, Leesa Uribe.

B. Juarez' Testimony.

Evans also argues that the district court erred by denying his motion to strike Juarez' testimony entirely. This argument is wholly without merit. Juarez testified to many events within his personal knowledge such as the prior cocaine transactions with Winston and Uribe between 1985 and 1987, and the events leading to the arrest of Winston and Evans on May 28th.

Evans' basic complaint is that Juarez was allowed to testify that both Winston and Uribe told him that Evans was their source for the cocaine. The district court admitted these statements under the co-conspirator exception to the hearsay rule under Fed.R.Evid. 801(d) (2) (E).

Evans argues that there was insufficient evidence of his knowledge of and participation in the alleged conspiracy to distribute cocaine and consequently the extrajudicial statements were improperly admitted. Before the extrajudicial statements of a co-conspirator may be admitted into evidence, the government must prove by a preponderance of the evidence the accused's knowledge of and participation in the conspiracy. See e.g., Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 2778-2779 (1987). This circuit has held that a co-conspirator's extrajudicial statement alone is insufficient to meet this threshold burden. See United States v. Silverman, 861 F.2d 571, 577 (9th Cir. 1988).

The standard of review in this circuit is unclear after Bourjaily. See id. at 576; see also United States v. Gordon, 844 F.2d 1397 (9th Cir. 1988). Before Bourjaily, we reviewed a district court's decision de novo. As in Silverman and Gordon, however, we need not decide whether Bourjaily mandates a change in the standard of review because these statements were properly admitted under either the de novo or clearly erroneous standard of review.

In this case there was overwhelming evidence that Evans knew of and participated in the conspiracy. First, Winston testified that Evans was the source for all the cocaine that he sold to Juarez. Juarez also testified that Evans told him to see Leesa Uribe about any purchase of cocaine. Also, there was sufficient circumstantial evidence about the telephone calls to Evans' house. Finally, Evans arrived in Seattle with the cocaine for sale, and his fingerprint was found on the inside of the cellophane wrapped around the cocaine.

Last, Evans argues that there was insufficient evidence that these statements were made in the course of and in furtherance of the conspiracy. We review the district court's conclusion for clear error. United States v. Smith, 790 F.2d 789, 794 (9th Cir. 1986). Juarez testified that both Winston and Uribe told him that Evans was their source when he complained about late deliveries. This is sufficient to show the statements were made during the conspiracy, and in its furtherance because Winston and Uribe were trying to appease their customer.

C. Evans' right to testify.

Evans argues that he was denied his right to testify in his own defense because the district court refused to grant a continuance after the government concluded its case-in-chief. We review a district court's denial of a continuance for an abuse of discretion.

At the conclusion of the government's case-in-chief, the defense renewed its motion to strike Juarez' testimony. The district court denied this motion, but granted Donion's request for a brief recess to consult with his client. After the recess, Donion asked for a continuance until November 12th. Donion stated "Your Honor, we were rushed up to the Court. My client and I have not really--we were anticipating basically that the government would not finish their case today, and its hard to have a rushed conversation in the hall regarding his testimony or not." (emphasis added). Evans argues that this passage demonstrates that Donion never discussed his right to testify. Consequently, according to Evans it was incumbent on the court to either grant the continuance or personally advise him of his right to testify.

Evans' argument is without merit. First, Donion only stated that it was hard to have a rushed conversation in the hallway about whether Evans should testify, and not that he had never discussed this right with his client. Also, Evans cites no rule or case for the proposition that a district judge must personally inquire whether the defendant, when represented by counsel, intends to waive the right to testify and advise the defendant of the consequences of such a waiver. Fed. R. Crim. P. 11 requires a district judge to inform a defendant that a guilty plea waives the right to testify, however, the procedures delineated in Rule 11 apply solely to the acceptance of guilty pleas. United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980), cert. denied 450 U.S. 934 (1981) (Rule 11 does not apply to the acceptance of stipulations).

The district court denied the continuance reasoning that Donion had been the attorney of record since July and had ample time to plan trial strategy. The district court was concerned that Donion's request was merely to delay the outcome of the trial. While we do not decide whether Donion's request was made for delay, we note that this court has upheld a district court's denial of a continuance when the defendant's conduct is " 'dilatory and hinders the efficient administration of justice,' ... even if it results in the defendant being unrepresented at trial." United States v. Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987) (quoting United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979)).

Donion asked for a continuance on the first day of trial after the trial had been continued two times before. In view of the entire record the court did not clearly err in considering that Donion's request might be for the purpose of delay. The district court did not abuse its discretion in denying the continuance.

D. Evans' Right to Make a Closing Argument.

On November 10, 1987, the government rested and the defense rested without calling a witness. The court was recessed until November 12, 1987, with only the closing arguments remaining to be heard. On November 12, 1987, Evans filed a pro se motion for a mistrial based on ineffective assistance of counsel, judicial bias, and prosecutorial misconduct. Evans also indicated in this motion that he fired his attorney, Mr. Donion, and retained new counsel. Evans did not move for a continuance to allow his new counsel time to participate in the remainder of the trial. Donion filed a motion to withdraw which the district court denied.

Evans argues that he was denied his right to make a closing argument because of the district court's failure to accept his motion to fire his attorney, Mr. Donion. The record, however, indicates that Judge Tanner did allow Evans to proceed pro se. During the proceedings, Evans stated several times that Donion no longer represented him. Judge Tanner then asked Evans whether he was acting as his own attorney, and Evans responded "you could say that." The record as a whole indicates that Judge Tanner treated Evans as if he was representing himself, and requested Donion to remain only in the event that Evans wished to consult with an attorney.

The record also indicates that Evans waived his right to make a closing argument after Judge Tanner expressly advised him of his right to do so. The only question is whether Judge Tanner's failure to expressly advise Evans of the pitfalls of self-representation violated his sixth amendment right to counsel.

"An indigent criminal defendant has an absolute right under the sixth amendment to be represented by counsel or to represent himself ..." See United States v. Wadsworth, 830 F.2d 1500, 1504 (9th Cir. 1987). A defendant choosing self-representation, however, must knowingly and intelligently waive his right to counsel. See e.g., id. at 1504. Ordinarily in this circuit, to establish a knowing and intelligent waiver the district court must discuss three elements with the defendant: 1) the nature of the charges; 2) the possible penalties; and 3) the dangers of self representation. Id. This court has stated, however, that on rare occasions a knowing and intelligent waiver might be found in the absence of this express colloquy. See United States v. Rylander, 714 F.2d 996, 1005 (9th Cir. 1983), cert. denied, 467 U.S. 1209 (1984); see also United States v. Balough, 820 F.2d 1485, 1489 (9th Cir. 1987). "The denial of the right to counsel at trial is prejudicial per se." Wadsworth, 830 F.2d at 1505; see also Balough, 820 F.2d at 1489-90 (harmless error doctrine does not apply when defendant was not represented by counsel).

Evans argues that he was denied his right to counsel because Judge Tanner did not expressly discuss the pitfalls of self-representation. Evans argues that this court has applied a stringent test to determine whether a defendant intelligently waived his right to counsel in the absence of the required colloquy. See United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982); see also Rylander, 714 F.2d at 1005.

We agree that the test is stringent, however, the cases cited by Evans are inapplicable to his situation. In all the cases cited by Evans, the criminal defendant proceeded pro se throughout the entire trial. When a defendant intends to proceed pro se for an entire trial, the pitfalls of self-representation will be numerous and varied. In this case, however, Evans proceeded pro se only on the last day of trial when all that remained was to decide whether to make a closing argument. Consequently, we need find only that Evans was aware of the dangers of not giving a closing argument.

Judge Tanner specifically advised Evans that he had the constitutional right to counsel, and the right to make a closing argument, and if he remained silent he would waive that right. Evans was also aware that Donion believed that such an argument was critical to his case. Although Judge Tanner did not specifically advise Evans of the importance of giving a closing argument, we find that Evans, by Donion's arguments with the court, was aware of the danger of not giving a closing argument.

E. The district court's alleged appearance of partiality.

On the last day of the trial, Judge Tanner sua sponte revoked Evans' bail after Donion asked for the second time for permission to give a closing argument over Evans' objection. United States Attorney Diskin asked the court to reconsider its decision "because the court is concerned not only with being fair, but with appearing to be fair, too, to the defendants." Judge Tanner refused to reconsider his decision, and only explained the reason for his action after the government finished its closing argument. Judge Tanner's stated reason was that Evans "posed a certain security risk to this court and perhaps to the jury."

Evans argues that this action casts doubt on Judge Tanner's partiality throughout the entire trial. Evans also argues that this violation of the appearance of fairness in conjunction with the denial of an opportunity to make a closing argument mandate reversal. We reject both arguments. First, as stated earlier, Judge Tanner expressly advised Evans of his right to make a closing argument several times. The only question is whether Judge Tanner's decision to revoke Evans' bail violated the appearance of fairness and is sufficient to call into question the impartiality of Judge Tanner and the fairness of the trial. We reject both contentions.

Although it would have been preferable for the district court to state its reasons for revoking bail immediately, we cannot conclude that the court's action was unjustified. The government presented a case with overwhelming evidence of Evans' guilt. Evans chose to rest without rebutting any of the government's evidence. It was reasonable for Judge Tanner to believe that under these circumstances, Evans posed a threat to flee the jurisdiction. Consequently, we find that the revocation of bail is insufficient to demonstrate either that Judge Tanner was biased against Evans or that he was not given a fair trial. This all occurred outside the presence of the jury, and the jury was never informed that Evans' bail was revoked.

F. Ineffective Assistance of Counsel.

Whether a defendant received ineffective assistance of counsel is reviewed de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492-93 (9th Cir. 1985). To establish ineffective assistance of counsel, Evans must show that: 1) Donion's alleged inadequacies fell below those of a reasonably competent attorney; and that 2) he suffered prejudice as a result of those errors. See e.g., id. at 149.

Evans argues that he was denied effective assistance of counsel because of his attorney's failure to object to the government's use of leading questions; his attorney's failure to cross-examine many witnesses; his attorney's failure to have a defense theory or strategy; and his attorney's lack of knowledge regarding the rules of evidence. All of these arguments are meritless.

Evans fails to show that he suffered any prejudice from the his attorney's failure to object to leading questions, cross-examine witnesses, or present a defense theory. The government led some witnesses with material that was either already admitted into evidence or was background material. Likewise, Evans' argument that Donion failed to cross-examine witnesses suffers from the same defect. Finally, Evans fails to argue what theory of defense Donion should have argued. Donion tried to argue that Winston was lying based on his jealousy of Evans for stealing a girlfriend.

Evans also argues that Donion's inadequate understanding of the rules of evidence prevented the introduction of specific acts of misconduct to impeach Winston. This argument is misleading and meritless. Donion attempted to cross-examine Winston regarding past incidents of alleged theft (non-convictions) which is permissible in the discretion of the district court judge under Rule 801(b) (1). The district court refused to allow Donion to cross-examine Winston about these events. Evans argues that Donion should have used 801(d) (1), but then quotes from Rule 801(b) (1) which Donion cited to Judge Tanner as support for his proposed cross-examination, or Rule 809 which allows extrinsic evidence of convictions alone.

Last, Evans argues that Donion's failure to advise him of his right to testify constituted ineffective assistance of counsel. We have insufficient facts in the record to support this claim except the somewhat ambiguous statement made by Donion when he moved for a continuance. Actually the statement by Donion suggests that he did discuss this right with Evans. The lack of fact-finding is one reason this court has stated that claims of ineffective assistance of counsel are best raised in a habeas corpus petition. See United States v. Sanclemente-Berjarano, 861 F.2d 206, 211 (9th Cir. 1988).

G. Evans' 15-year Sentence.

Evans was convicted under counts I, II & IX of the indictment, and sentenced to 15 years for each count, to run concurrently with an additional condition of five years supervised release. Evans argues that this sentence was excessive because he was a first time offender. Evans' contention is without merit.

Evans was sentenced within the guidelines, and "a sentence is generally not subject to appellate review if it is within the statutory limits. United States v. Barker, 771 F.2d 1362, 1364 (9th Cir. 1985). In this case, Evans does not argue that Judge Tanner considered inappropriate information or failed to individualize his sentence. Evans argues generally that a 15-year sentence is harsh for a first time offender. The sentence, however, is within the statutory limit, and the evidence showed that although this was Evans' first conviction it was not his first drug transaction.

Consequently, the judgment of conviction and the sentence are AFFIRMED.