Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

MEMORANDUM^* 

Martin John Silva appeals the district court's judgment convicting him of conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(c) and soliciting a kidnapping in violation of 18 U.S.C. § 373.

Silva contends that the trial court erred by not immediately responding to the jury's request to rehear the elements of the charged offenses. Reversal is appropriate only where the objective circumstances of the case provide some compelling basis for overcoming the jury's own conclusion that it has reached a decision beyond a reasonable doubt. See, e.g., Bollenbach v. United States, 326 U.S. 607, 612-13 (1945) (reversing where trial judge gave inaccurate instruction and where objective circumstances--lengthy deliberations, multiple requests for clarification--suggested juror confusion); United States v. Bordallo, 857 F.2d 519, 528 (9th Cir. 1988) (reversing conviction where instructions failed to state a necessary element of the crime). Because the judge properly instructed the jury, the jury is presumed to have followed the instructions. See McKenzie v. Risley, 842 F.2d 1525, 1533 (9th Cir. 1988). There is nothing in the record to indicate that the jury was confused or that it departed from the judge's accurate instructions.

Silva contends the district court erred by failing to instruct on Silva's defense of entrapment. We understand the controversy over the standard of review on this issue. Compare United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987) with United States v. Busby, 780 F.2d 804, 806 (9th Cir. 1986) and United States v. Hoyt, No. 87-1224 (9th Cir. March 17, 1989). We need not resolve that controversy since Silva cannot prevail under either standard. Not only did Silva present no credible evidence that he lacked a predisposition to commit the kidnapping. His own statements on tape (buttressed by other evidence in the record supporting those statements) completely refuted arguments offered in support of the requested instruction. See United States v. Brandon, 633 F.2d 773, 778 (9th Cir. 1980).

Silva's claim that the trial court erred in refusing to use his specific instruction regarding federal jurisdiction is without merit. The district court has "broad discretion in formulating the instructions, and neither party may demand specific language." United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir. 1986), cert. denied, 107 S. Ct. 142, 158 (1987). The district court did not abuse its discretion in formulating its own instructions regarding federal jurisdiction rather than giving Silva's proffered instruction.

Silva claims that the trial court erred by refusing to admit the testimony of Jerry Ross. We review the trial court's refusal to admit testimony for abuse of discretion. United States v. Savinovich, 845 F.2d 834, 837 (9th Cir. 1988). The court did not abuse its discretion in finding that any limited probative value of this testimony was outweighed by its prejudicial effect.

The trial court did not violate Silva's rights under the confrontation clause by limiting Silva's cross-examination of Hansen. We review the court's decision to limit cross-examination for abuse of discretion. United States v. Feldman, 788 F.2d 544, 554 (9th Cir. 1986), cert. denied, 107 S. Ct. 955 (1987). Once "cross-examination reveals sufficient information with which to appraise a witness's possible bias and motives, confrontation demands are satisfied." United States v. Bonnano, 852 F.2d 434, 439 (9th Cir. 1988). The court did not abuse its discretion in determining that the probative value of further cross-examination was outweighed by its prejudicial effect.

Nor did the trial court err by admitting physical evidence seized from the residences of Silva and Carlos Perea. We review the decision for abuse of discretion. United States v. Crespo De Llano, 838 F.2d 1006, 1018 (9th Cir. 1987). The court acted within its discretion in finding that these items were relevant and that their probative value outweighed any danger of unfair prejudicial effect.

We review the court's decision to admit Silva's tape-recorded statements about other crimes for abuse of discretion. United States v. Sarault, 840 F.2d 1479, 1485 (9th Cir. 1988). The court did not admit this evidence for the purpose of showing conformity with prior actions. The statements were admitted to show how Silva attempted to bring Hansen into the conspiracy. The court acted within its discretion.

We reject Silva's contention that the trial court erred in admitting testimony of ballistics experts and in refusing to appoint an expert to testify for Silva. The court was within its discretion in admitting the testimony. In order to receive the services of an expert, an indigent defendant must show that a reasonable attorney would engage such services. United States v. Brewer, 783 F.2d 841, 842 (9th Cir. 1986). In addition, "the defendant must show, by clear and convincing evidence, 'the ... prejudice ... caused by the court's failure to appoint an expert.' " Id. at 843 (quoting United States v. Sims, 617 F.2d 1371, 1375 (9th Cir. 1980). Silva has presented no evidence of prejudice. The court properly denied Silva's request for appointment of an expert.

AFFIRMED.

NELSON, Circuit Judge, dissenting.

I respectfully dissent in part on the issue of the exclusion of the testimony of Jerry Ross.

Silva's strongest defense to the conspiracy and solicitation charges was entrapment. To corroborate this defense, Silva offered the testimony of Jerry Ross. Ross would have testified that Hansen approached him on the weekend of June 6 and 7 to try to interest him in joining a kidnapping conspiracy. When Ross declined, Hansen asked whether he would be interested if Hansen could get Silva and others involved, too.

The trial court excluded Ross's testimony on the ground that it went to Hansen's credibility, and was thus not permitted under Fed.R.Evid. 608(b) and 404(b). It was incorrect. Rule 608(b) excludes specific instances of a witness' conduct for the purpose of attacking or supporting a witness' credibility. However, such evidence must be excluded only if its sole purpose is impeachment. United States v. Halbert, 712 F.2d 388, 390-91 (9th Cir. 1983) (holding that specific instances of conduct are admissible when highly relevant to diminished capacity defense, even though such evidence would also serve to impeach). In this case, as in Halbert, Ross's testimony was highly relevant to Silva's defense. The central issue in the entrapment defense is who induced whom. Silva's evidence, tending to show that it is more likely than not that Hansen induced Silva, is surely relevant to more than Hansen's credibility. See Fed.R.Evid. 401, "Definition of 'Relevant Evidence.' "

Rule 404(b) excludes evidence of other crimes, wrongs, or acts for the purpose of proving action in conformity therewith on a particular occasion. However, such evidence may be "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). In this case, Hansen's statement to Ross regarding the involvement of Silva in the conspiracy is relevant to show Hansen's intent to solicit Silva. It is also relevant to show Hansen's motive for soliciting Silva: to convince Ross to become involved as well. Thus, under the doctrine of multiple admissibility, this court should hold that Ross's testimony should not have been excluded under either 608(b) or 404(b).

In addition, Ross's testimony was admissible under Fed.R.Evid. 613(b). Rule 613(b) admits extrinsic evidence of a witness' prior inconsistent statements if the witness has an opportunity to explain or deny the statements, and the opposing party has an opportunity to interrogate the witness regarding the statements. In addition, "as a preliminary matter, ... the court must be persuaded that the statements are indeed inconsistent." United States v. Hale, 422 U.S. 171, 176 (1975).

In this case, Silva's counsel laid a proper foundation to determine that Hansen's statements to Ross were inconsistent. During cross-examination of Hansen, Silva's counsel asked the following:

Q. During this same period, end of May through June 10th when you were arrested, did you go to anybody to ask them to join in a kidnapping?

A. No, I didn't.

Q. Are you certain of that?

A. I am certain.

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Q. So that we are clear, during that same time period, late in May up to June 10th, did you even talk to anybody about the idea of a kidnapping other than Mr. Silva?

A. I did not carry on no conversation about a kidnapping whatsoever. The only kidnapping conversation was ever brought up to anybody's attention was Martin to me, that is it.

Mr. Ross's testimony that Hansen talked to him on June 6 or 7 about the kidnapping is clearly inconsistent with the above exchange.

The government, however, claims that Hansen's denial on the witness stand was too general to support a proper foundation for introducing the statements to Ross. The government states, "Defense counsel did not reveal the time, place or persons supposed to have been present when the alleged statements were made. In the absence of such a foundation, extrinsic evidence of the witness' purported out-of-court statement is inadmissible." This contention is absolutely wrong. In the very case the government cites for its proposition, the trial court made the same conclusion as the government in this case, and it was reversed on appeal. United States v. McLaughlin, 663 F.2d 949, 953 (9th Cir. 1981).¹ In that case, the court cited the Notes of the Advisory Committee on Proposed Rules, and held that a proper foundation was laid by "simply providing the witness an opportunity to explain and the opposing party an opportunity to examine on the statement, with no specification of any particular time or sequence. (emphasis added)" Id. at 953.

Moreover, the McLaughlin court stated that " [t]he government would have been free to re-call Weitz as a witness and give him an additional 'opportunity to explain or deny' the statement attributed to him." Id. at 953. The government in this case claims that recalling Hansen, who was in custody, would have unnecessarily delayed the trial. Serious doubts about the merits of this contention aside, the McLaughlin case holds only that the witness be given an opportunity to explain or deny a statement; it does not require that the witness actually do so. Here, Hansen definitively denied any previous conversations regarding the kidnapping. If the government felt this was not enough, which would be difficult to show under the circumstances, it should have recalled Hansen to explain further or deny his statements to Ross. "Rule 613(b) requires no more." Id. at 953.

Thus, this court should find reversible error in the trial court's exclusion of Ross's testimony, either on the ground that the testimony was not prohibited by Rule 608(b) or 404(b), or on the ground that it was admissible under 613(b). Potential hearsay problems under either approach are covered under the "state of mind" exception to hearsay, stated in Fed.R.Evid. 803(3). Rule 803(3) excepts "intent, plan, motive, design ..." from the general rule against hearsay. As already stated, Hansen's statements to Ross show his intent to solicit Silva and his motive for doing so. " [A] statement of the declarant's intent to do something is competent.... Evidence of that intent can then be considered by the jury in determining whether the declarant subsequently performed the intended act." United States v. Astorga-Torres, 682 F.2d 1331, 1336 (9th Cir. 1982). Because the jury in this case never got to make that determination, this court should REVERSE and REMAND.