Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)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.Gustavo PEREZ-ARANDA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Hector ESTRELLA, Defendant-Appellant.

No. 88-5014.

United States Court of Appeals, Ninth Circuit.

Submitted*  March 28, 1989.Decided June 22, 1989.

Before CHOY, ALARCON and CANBY, Circuit Judges.


MEMORANDUM** 

Gustavo Perez-Aranda (Perez) and Hector Estrella (Estrella) appeal their convictions, following a jury trial, of conspiracy to possess a controlled substance with intent to distribute; aiding and abetting the possession of a controlled substance with intent to distribute; and aiding and abetting the distribution of a controlled substance in violation of 21 U.S.C. §§ 841(a) (1) and 846 and 18 U.S.C. § 2(a). We affirm.

Perez and Estrella contend that their convictions should be reversed because counsel for one of their codefendants improperly commented on Perez's choice to remain silent and not testify in his own defense. This contention has no merit.

This court reviews contentions of fifth amendment violations de novo. United States v. Schuler, 813 F.2d 978, 980 (9th Cir. 1987). It is improper for counsel for one codefendant to comment on another codefendant's failure to testify. United States v. Patterson, 819 F.2d 1495, 1506 (9th Cir. 1987) (citing United States v. Moreno-Nunez, 595 F.2d 1186, 1187 (9th Cir. 1979)). However, such comment is only ground for reversal if it appears that the comment may possibly have affected the verdict. Id. (citing United States v. Pruitt, 719 F.2d 975, 978 (9th Cir.) (per curiam), cert. denied, 464 U.S. 1012 (1983)).

We have repeatedly stated that comments regarding a defendant's failure to testify do not warrant reversal or mistrial if (1) the comments only indirectly referred to a codefendant's failure to testify, (2) the comments did not stress any inference that the codefendants were guilty because of their failure to testify, and (3) the judge gave a curative instruction. Id.; Pruitt, 719 F.2d at 978. We have also stated that there is no reversible error when a codefendant's counsel's comments are intended only to enhance the credibility of his client rather than to point out another codefendant's failure to testify. See United States v. Bonilla, 615 F.2d 1262, 1264 (9th Cir. 1980).

Here, counsel for codefendant Jesus Ayub (Ayub) commented twice during his closing arguments that Ayub put on a defense, including testifying on his own behalf, because "he had no fear of the facts."1  Ayub's counsel did not directly refer to the fact that the other defendants had chosen not to testify. He did not stress any inference that the other defendants were guilty because they chose to remain silent. At most the counsel's comments appear to have been focused primarily on bolstering his own client's credibility. Moreover, the judge gave a curative instruction to the jury that the defendants had a constitutional right not to testify and that the jury was not to draw any inference of guilt from the fact that a defendant does not testify. Accordingly, the convictions are not reversible on the basis of these statements. See Patterson, 819 F.2d at 1506; Bonilla, 615 F.2d at 1264.

Perez and Estrella contend that the district court erred in denying their motion for a mistrial after the prosecutor made improper and inflammatory statements during her rebuttal arguments. We disagree.

We review a prosecutor's statements to determine "whether the statements were improper and, if so, whether it is more probable than not that the prosecutor's conduct 'materially affected the fairness of the trial.' " United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986) (quoting United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985)). Thus, improper statements during closing arguments do not constitute reversible error "unless they are so gross as to probably prejudice the defendant, and the prejudice is not neutralized by the trial judge." United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984) (citing United States v. Birges, 723 F.2d 666, 671-72 (9th Cir.), cert. denied, 466 U.S. 942 (1984)).

An appeal to the jury to act as the conscience of the community is not impermissible unless it is specifically designed to inflame the jury. Lester, 749 F.2d at 1301. A prosecutor's statement asking the jury to join the war against crime is improper. The error is not reversible, however, if the judge gives a curative instruction that counsel's arguments are not evidence and that the jury's only job is to determine guilt or innocence from the evidence in the case. See Polizzi, 801 F.2d at 1558.

Here, the prosecutor asked the jury to "send a message that people won't be allowed to make money off of the addiction and misfortune of others," and "that this type of conduct will not be tolerated." She also stated that if the government had not been successful in arresting the defendants, "they would probably be out on the street continuing with drug transactions." Following objection by defense counsel, the judge immediately gave a curative instruction that the jury's job is to decide the case on the basis of the evidence and not on the basis of whether they think certain people should be allowed on the street or how widespread they believe heroin trafficking is. Later, during the jury instructions, the judge instructed the jury that statements and arguments of counsel are not evidence.

To the degree that the prosecutor's remarks suggested that the jury had any job other than to weigh the evidence, her remarks were improper. See Polizzi, 801 F.2d at 1558. However, any prejudice the remarks might have caused to the defendants was cured by the judge's instructions. Accordingly, the district court did not err in denying Estrella's and Perez's motion for a mistrial.

Estrella contends that his conviction should be reversed because it is not supported by the evidence. In reviewing whether there was sufficient evidence to support a conviction, this court views the evidence in the light most favorable to the prosecution to determine whether " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Crespo de Llano, 838 F.2d 1006, 1019 (9th Cir. 1987) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). The issue is whether the trier of fact reasonably could arrive at its conclusion, not whether the evidence excludes every hypothesis other than guilt. United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044 (1982).

Here, Estrella was convicted of conspiracy to possess heroin with intent to distribute, aiding and abetting the possession of heroin with intent to distribute and aiding and abetting the distribution of heroin.

The essential elements for a conspiracy are an agreement to accomplish an illegal objective, one or more overt acts taken to implement the agreement, and the requisite intent necessary to commit the underlying substantive offense. United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir. 1986). Once the existence of a conspiracy has been shown, evidence establishing beyond a reasonable doubt even a slight connection of the defendant with the conspiracy is sufficient to convict him of knowing participation in the conspiracy. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987).

Estrella does not contend that there was not a conspiracy, but rather that he was not a coconspirator. Accordingly, the evidence would be sufficient to convict him as a coconspirator if it showed beyond a reasonable doubt that he had a slight connection to the conspiracy. See Penagos, 823 F.2d at 348.

Here, there was sufficient evidence to establish that Estrella had a connection to the conspiracy. According to the testimony of Agent Leyva, the undercover agent who arranged a meeting with one of the other defendants, Estrella arrived at the meeting, discussed future sales of heroin, and offered to facilitate future sales. Furthermore, while Estrella and codefendant Mercado were growing impatient waiting for the heroin to be delivered, Estrella went to the telephone to make a phone call and returned, stating that no one had answered and so they must be on their way. Agent Leyva testified that a few minutes later a green pickup truck arrived driven by Perez, one of the other codefendants, who stated that the merchandise was on its way. Ten minutes later the green pickup returned and Perez stated he had ten ounces and pointed to his pocket. Finally, Leyva testified that both Estrella and defendant Perez, who was carrying the heroin, got into the back seat of the undercover vehicle to hand over the heroin and count the money. This testimony was sufficient to establish that Estrella had a connection with the conspiracy to possess heroin with the intent to distribute. See Penagos, 823 F.2d at 348.

Furthermore, there was sufficient evidence to convict Estrella of the substantive counts. Under Pinkerton v. United States, 328 U.S. 640, 646-48 (1946), when a conspiracy has been proven, any party to the conspiracy may be held responsible for the substantive offenses of his coconspirators in furtherance of the conspiracy, even if the party himself did not participate directly in the commission of the substantive offense. Crespo de Llano, 838 F.2d at 1019. The jury was instructed regarding the Pinkerton rule. Given Agent Leyva's testimony that codefendant Perez was in possession of a packet of heroin which he gave to the undercover drug enforcement agent in exchange for money, the jury could have found that Perez committed the substantive offenses of possession and distribution. Accordingly, reviewing the evidence in the light most favorable to the government, the jury could reasonably have found Estrella responsible for those offenses as a coconspirator. See Crespo de Llano, 838 F.2d at 1019.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

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

 1

His statements were:

"Because Mr. Ayub had no fear of the facts, exactly what happened here, he had no problem about putting on evidence in his own behalf, testimony in his own behalf ... In this case we had no fear of putting on Mike Garcia, the informant. Mr. Ayub, in his defense stepped forward and put Mike on the stand. For better or worse, he put Mike on the stand."