Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Nicholas Lance CONAWAY, Defendant-Appellant.

No. 87-3127.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 1, 1989.Decided May 15, 1989.

Before TANG, BOOCHEVER and KOZINSKI, Circuit Judges.


MEMORANDUM* 

Nicholas Lance Conaway appeals his convictions on three counts of violating 21 Sec. U.S.C. 841(a) (1): (a) conspiracy to manufacture and possess with intent to distribute methamphetamine; (b) manufacturing methamphetamine; and (c) possession with intent to distribute methamphetamine.

A. First, Conaway argues that the district court erred in admitting the testimony of government witness Daniel Egbert. The convictions were based on Conaway's alleged drug activities in the Christmas Valley area. Egbert's testimony involved Conaway's alleged drug activities one or two months later in nearby Silver Lake.

B. We review for an abuse of discretion a district court's decisions regarding (a) relevancy of evidence under Fed.R.Evid. 401-402, United States v. Burreson, 643 F.2d 1344 (9th Cir.), cert. denied, 454 U.S. 830, 841 (1981); (b) balancing of the probative value of evidence against its prejudice under Fed.R.Evid. 403, United States v. Rubio, 727 F.2d 786, 798 (9th Cir. 1983); and (c) admission of evidence pursuant to Fed.R.Evid. 404(b). United States v. Jenkins, 785 F.2d 1387, 1386 (9th Cir. 1986).

C. According to Fed.R.Evid. 402, " [a]ll relevant evidence is admissible." " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. In admitting the evidence, the district court concluded that Egbert's testimony was relevant.

According to Fed.R.Evid. 403, " [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." In admitting Egbert's testimony, the district court concluded that the probative value of the testimony is not substantially outweighed by the danger of unfair prejudice or confusion.

Furthermore, according to Fed.R.Evid. 404(b), although " [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," such evidence "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

D. Because the conspiracy continued for about four months after the Silver Lake incident, and also because of the close temporal and geographical proximity between this incident and the Christmas Valley activities, it was not an abuse of discretion to admit Egbert's testimony. The testimony was relevant to Conaway's participation in the continuing conspiracy and was not prohibited by Rule 404(b). Upon balancing, the probative value was not substantially outweighed by the danger of unfair prejudice. The district court did not abuse its discretion.

Secondly, Conaway argues that the prosecutor's questioning of Egbert constituted improper vouching for a witness' credibility. Egbert testified against Conaway in exchange for leniency by the government in a separate case involving drug charges against Egbert. In cross-examining Egbert, defense counsel used this deal to attack Egbert's credibility. On redirect examination, the prosecutor asked Egbert about what he is required to do under this deal with the government to which Egbert replied: "To tell the truth, the whole truth and nothing but the truth." Conaway objected.

The general rule is that " [i]t is improper for the prosecution to vouch for the credibility of a government witness." United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980), cert. denied, 452 U.S. 942 (1981). However, when a government witness who testifies as part of an agreement with the government is cross-examined as to his motives in testifying, the " 'truthful testimony' portions of a cooperation agreement with the government" are admissible. United States v. Dadanian, 818 F.2d 1443, 1445 (9th Cir. 1987), modified, 856 F.2d 1391 (9th Cir. 1988); see also United States v. Rohrer, 708 F.2d 429, 433 (9th Cir. 1983).

We review the district court's evidentiary rulings for an abuse of discretion, Rohrer, 708 F.2d at 432, and hold that the district court did not abuse its discretion in allowing Egbert to mention the "truthful testimony" component of his agreement with the government.

Finally, Conaway argues that the prosecutor unfairly prejudiced the jury by referring to the fact that the defense had put on no evidence. During its opening statement, defense counsel told the jury that it would produce evidence that Conaway rented the Christmas Valley property for the purposes of establishing a wood hauling business and of searching for Indian artifacts. The defense produced no evidence to support this claim and the prosecution so commented in closing argument. The district court sustained defense counsel's objection to the prosecutor's closing argument comments and instructed the jury to disregard them. The question, then, is whether the prosecutor's comments warrant reversal anyway.

Although a prosecutor may not comment on a defendant's failure to testify, Griffin v. California, 380 U.S. 609 (1965), if a prosecutor comments on the failure of the defense to present evidence, this does not necessarily constitute a violation of the privilege against self-incrimination. United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1988).

Because a constitutional issue is involved, we review the propriety of the prosecutor's comments de novo. United States v. McConney, 728 F.2d 1195, 1204 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824 (1985). Once "the defendant opens the door to an argument, it may be 'fair advocacy' for the prosecution to enter." United States v. Lopez, 803 F.2d 969, 972 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987). In the instant case, there was a promise of evidence of wood hauling and Indian artifact ventures. As the prosecutor's comments related to the failure of the defense to present evidence and did not call attention to the defendant's failure to testify, the comments were proper and the jury could have considered them. Even if the comments were improper, there was no "plain error," Id., and the curative instruction would suffice to render the comments harmless. United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986); see also United States v. Schuler, 813 F.2d 978, 981 (9th Cir. 1987).

Accordingly, the judgment of the district court is AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3