Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 387 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Russell WARD, Defendant-Appellant.

No. 88-3195.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 1989.Decided June 23, 1989.

District Judge Charles C. Lovell, Presiding.

Before GOODWIN, Chief Judge, WRIGHT and WILLIAM A. NORRIS, Circuit Judges.


We consider issues related to Ward's conspiracy conviction for distribution of cocaine in violation of 21 U.S.C. §§ 841, 846. His conviction stems from his role as a supplier in a "cocaine connection" running between Florida and Montana. We affirm.

All 14 indicted conspiracy members stood trial or pleaded guilty in Montana. Of the issues raised, Ward gives primary attention to denial of his motion to transfer the case to Florida for trial. We review that ruling for abuse of discretion. United States v. Myers, 847 F.2d 1408, 1411 (9th Cir. 1988).

Ward argues that the court's denial inconvenienced and prejudiced his case. We find no abuse of discretion. First, the court explained in detail the reasons for its denial. See Platt v. Minnesota Mining Co., 376 U.S. 240, 243-44 (1964) (listing nine independent factors for transfer). Following Platt, the court analyzed properly the factors to deny transfer. The court concluded that transfer was unnecessary and would be a waste of judicial resources.

Second, courts have wide discretion in denying transfer motions. See Allen v. Scribner, 812 F.2d 426, 436-37 (9th Cir.) (transfer denied due to court familiarity and potential delay), amended on other grounds, 828 F.2d 1445 (1987). As Allen states, "only in rare instances have appellate courts overridden a trial court's decision not to transfer." Id. Ward cites no case to support his proposition that the court abused its discretion in denying transfer of this complex interstate conspiracy trial. The ruling was proper.

II. Requested Multiple Conspiracy Instruction

Evidence at trial included reference to separate drug sales among Ward's many co-conspirators. Ward requested a jury instruction on a multiple conspiracy theory as an alternative to the single conspiracy charge in the indictment. The court refused and we find no error.

A multiple conspiracy instruction is unnecessary unless the evidence rationally supports a verdict at variance with the single conspiracy charge. See United States v. Linn, 862 F.2d 735, 743 (9th Cir. 1988). The instruction is required where the indictment charges several defendants, but proof at trial indicates that a jury could reasonably conclude that some of the defendants were involved only in separate conspiracies unrelated to the overall conspiracy charged in the indictment. United States v. Anguiano, No. 87-5319, slip op. 4777, 4784 (9th Cir. May 5, 1989). We review de novo the court's refusal to instruct on multiple conspiracies. Id. at 4782.

We conclude that the evidence presented did not require a multiple conspiracy instruction. The indictment for a single conspiracy named Ward and 13 co-conspirators as members of a complex distribution ring. There was sufficient evidence from which a jury could conclude that Ward participated as a supplier in this single conspiracy. Ward has not established that his only involvement was limited to separate drug sales, unrelated to the overall conspiracy. The evidence of separate deals among co-conspirators and sales to non-conspirators does not support a verdict at variance with the indictment.

Ward claims prejudice resulting from the prosecutor's reference to his failure to testify. We disagree.

A comment on a defendant's failure to testify is impermissible if (1) the prosecutor intended to call attention to the fact or (2) the jury would naturally and necessarily take it that way. Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987).

The district court found that the prosecutor had not intended to call attention to the fact that Ward had failed to take the stand. This finding is not clearly erroneous. The prosecutor's brief and passing reference to the fact that Ward had not testified appears to have been inadvertent. In context, the statement seems to have been made not to draw attention to Ward's failure to testify, but to explain the government's decision not to play a certain tape. There is no indication that the government was intentionally trying to alert the jury to Ward's failure to testify. Nor do we believe that the jury could reasonably have interpreted the brief statement by the prosecutor as a comment on Ward's failure to take the stand. Accordingly, we hold that Ward was not impermissibly prejudiced by the prosecutor's statement.

The second test focuses on the jury's perception and applies where only the defendant could offer evidence on a particular issue. In this case all of Ward's co-conspirators testified to the events on the tape, and specifically Ward's participation in the final sale. The statement caused no prejudice.

Ward alleges that voir dire questioning failed to reveal potential bias favoring law enforcement testimony. Although the court failed to question venire members on possible bias in favor of law enforcement officers, that omission was not reversible error under the facts of this case.

We distinguish those cases where officer testimony is the only evidence against the defendant. See United States v. Contreras-Castro, 825 F.2d 185, 187 (9th Cir. 1987). Here, the officers' testimony supplemented that given by Ward's co-conspirators. The prosecutor's reliance on co-conspirator testimony eliminated potential prejudice. Further, the record shows that Ward's claim of short and superficial voir dire questioning lacks merit. The court followed a fair and detailed procedure of jury selection.

Following arrest, and after advising Ward of his Miranda rights, the arresting officers asked him biographical questions in the course of processing. During this time Ward commented voluntarily on the location of the crime. The court admitted this statement at trial. Ward asserts that its admission violated his Fifth Amendment rights. We find no constitutional violation.

The routine gathering of background information ordinarily does not constitute interrogation. United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986); see United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981). The suspect's responses are not considered a product of an "interrogation" unless the questions were reasonably likely to elicit an incriminating response. Disla, 805 F.2d at 1347; see Rhode Island v. Innis, 446 U.S. 291, 302 (1980).

The court chose to believe a version of Ward's dialogue with the officers that met the Fifth Amendment standards. We accept that finding unless left with a definite and firm conviction that a mistake has been committed. See Johnson v. United States Postal Serv., 756 F.2d 1461, 1464 (9th Cir. 1985). Ward offers no strong evidence of a mistake. The court considered several versions of the conversation and we defer to its finding. The statement was admitted properly.

Ward raises other evidentiary issues concerning admission of published testimony, exclusion of videotapes and exclusion of witness testimony and visual aids. These claims are without merit.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3