Unpublished Disposition, 878 F.2d 387 (9th Cir. 1988)

MEMORANDUM^* 

On January 8, 1986, appellant John Joe Arellano was convicted by jury under 18 U.S.C. § 924(b) (transporting a firearm in foreign commerce with intent to commit a felony or with knowledge or reasonable cause to believe it would be used to commit a felony), 18 U.S.C. §§ 922(a) (6) and 924(a) (making false statements to a firearms dealer in connection with the purchase of a firearm), and 18 U.S.C. § 545 (unlawfully bringing merchandise into the United States). Arellano was sentenced to ten years in prison for violating Sec. 924(b), two concurrent five year terms for violating Sec. 922(a) (6), and a two year term for violating Sec. 545.

In Arellano's first appeal to this court, we reversed his conviction under 18 U.S.C. § 924(b) and affirmed as to all other convictions. United States v. Arellano, (Arellano I), 812 F.2d 1209 (9th Cir. 1987), as amended, 835 F.2d 235 (9th Cir. 1987).

On March 8, 1988, Arellano was retried and convicted by jury under 18 U.S.C. § 924(b) and was sentenced to ten years in prison, consecutive to the seven year sentence previously imposed. Arellano again appeals contending that the district court erred in admitting certain evidence and incriminating statements at trial. Arellano also contends that the district court's limitations on his voir dire deprived him of due process of law and deprived him of an impartial jury. Finally, Arellano contends that the district court constitutionally erred by instructing the jury that it could presume that he knew the charged act was a violation of the law. We address each of these contentions in turn and affirm the district court in all respects.

Factual Background

Appellant lived with Edith Brasche in a mobile home in Rosarito Beach, Mexico. After arguments with Brasche, Arellano moved out of their mobile home in early 1985. Arellano I, 812 F.2d at 1210.

On July 15, 1985, Arellano purchased a .38 caliber pistol in California. On the required form of sale, Arellano stated that he lived in Antioch but that he and his wife were temporarily staying in Chula Vista for the summer. The address given by Arellano was nonexistent. Id.

On August 3, 1985, Arellano returned to the store and paid the balance on the pistol, and again recorded the Antioch address on the form. Later that day, the appellant crossed the border into Mexico. Id.

Two days later, Arellano drove to his former residence. When Brasche came out of the trailer, Arellano grabbed her and started hitting her. The landlord Bustillos arrived and pleaded with Arellano to stop. Arellano shot Bustillos in the shoulder and fatally shot Brasche as she tried to flee. Later that day, Arellano crossed the border into the United States and called an emergency operator. Arellano told the operator he had shot two people in Mexico. The police apprehended Arellano and confiscated the gun. Id.

Photograph/Videotape

Arellano contends that the district court abused its discretion by allowing the government to admit into evidence an autopsy photograph of the victim, a videotape of the scene, and the testimony of a witness to the shooting explaining the videotape. The appellant argues that because he stipulated that he committed a homicide in Mexico with the gun in question the evidence was irrelevant, and even if relevant was highly prejudicial.

We review the district court's decision to admit evidence for an abuse of discretion, United States v. Catabran, 836 F.2d 453, 459 (9th Cir. 1988) (internal citations omitted); United States v. Hanigan, 681 F.2d 1127, 1131 (9th Cir. 1982), cert. denied, 459 U.S. 1203 (1983); and, we find that the autopsy photograph, videotape and testimony of the witness were properly admitted.

At trial, the government carried the burden of establishing that Arellano transported a firearm from the United States into the Republic of Mexico with the intent at the time he crossed the border to commit a homicide with the firearm. Arellano I, 812 F.2d at 1211. The appellant's defense was that he killed the victim in a heat of passion, therefore he lacked the necessary intent at the time he crossed the border into Mexico.

The autopsy photograph showed that the victim was shot while facing away from Arellano; the videotape of the scene and the testimony of the eye witness showed the deliberate nature of the shooting. The district court correctly ruled that evidence of the appellant's state of mind at the time of the shooting is relevant to the appellant's state of mind at the time he entered Mexico with the firearm. Furthermore, the district court did not abuse its discretion in balancing the prejudicial effects and probative values of the photograph and videotape. See United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986). The evidence was relevant to state of mind; the court weighed the relevance and prejudice and correctly found that relevance outweighed the prejudice.

Finally, " [a] trial court has discretion to allow the proof despite defendant's offer to stipulate." United States v. Lee, 800 F.2d 903, 904 (9th Cir. 1986) (per curiam). The appellant only offered to stipulate as to the cause of the victim's death. The appellant did not stipulate as to Arellano's state of mind at the time of the shooting. Accordingly, it was not an abuse of discretion to allow the evidence on the facts of the case.

Incriminating Statements

In June 1985, one month before the appellant shot the victim, detective Alaniz of the Mexican State Judicial Police interviewed the appellant while he was in custody in Mexico on charges of theft filed by Brasche. During this interview, detective Alaniz testified that Arellano told him that he wanted to kill Brasche. Six to eight hours later, during a second interview, detective Alaniz testified that Arellano again stated that he was angry with Brasche and wanted to kill her.

Arellano contends that the government's use of these statements as evidence during trial violated his due process rights because the statements were involuntary and coerced. According to Arellano, he was "suffering from the effects of heavy drinking" at the time the statements were made and that he was "repeatedly questioned" by the Mexican police.

"In determining whether the tactics used by the Mexican police were coercive to the point of violating [Arellano's] due process rights, we review the district court's factual account of what happened during [Arellano's] interrogation under the clearly erroneous test." United States v. Wolf, 813 F.2d 970, 974 (9th Cir. 1987) (internal citations omitted). "We review de novo the court's conclusion that the confession was voluntary." Id. (internal citations omitted).

At the pretrial hearing, Arellano testified that he did not remember being questioned by the Mexican police and that while he was in Mexican custody he was beaten and denied food and water. Detective Alaniz testified that Arellano was arrested in the evening and appeared to be in "bad physical condition" from the effects of drinking. According to Detective Alaniz, Arellano was not in need of medical assistance and was not interviewed until the following morning. Detective Alaniz also testified that during the interviews Arellano seemed to understand what was happening, responded to questions, was cooperative and volunteered his statements. According to Alaniz, Arellano was not physically restrained and was fed throughout the time he remained in Mexican custody.

After hearing and assessing the credibility of the witnesses testifying at the suppression hearing, the district court denied Arellano's motion to suppress the June 1985 statements made to Alaniz. We interpret the district court's finding on voluntariness as accepting the testimony of Detective Alaniz. "Deference to the district court's factual finding is especially warranted here when the critical evidence is testimonial." Wolf, 813 F.2d at 975 (internal citations omitted). Given Arellano's testimony that he could not remember being questioned by the Mexican police and the specific testimony of the Mexican detective, the court's implicit finding that Arellano was not beaten or denied food and water is not clearly erroneous.

"Due process does not bar the use of a confession as evidence unless government officials employed coercive interrogation tactics which rendered the defendant's confession 'involuntary' as a matter of law." Wolf, 813 F.2d at 974, see Colorado v. Connelly, 479 U.S. 157, 165 (1986) ("while mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry").

Arellano was interviewed in the morning, six hours after his arrest, for thirty minutes and re-interviewed six to eight hours after the first interview for thirty minutes. The duration and location of the questioning was not exceptional. "Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law." Id. (quoting Connelly, 479 U.S. at 164 (footnote omitted)). We therefore affirm the district court's denial of Arellano's motion to suppress the statements.

Continuance

The appellant next contends that the district court abused its discretion by denying his request for a continuance of the suppression hearing. Granting the request would have required a postponement of the scheduled trial. The appellant's motion for a continuance of the hearing was made after the government's witness, Detective Alaniz, disclosed in his testimony that five persons were present at the June 1985 interviews. The appellant does not contend that he was unaware that Detective Alaniz was going to testify at the suppression hearing; rather, the appellant complains that he learned for the first time by Detective Alaniz's testimony that other witnesses were present during the first 1985 interviews. The only objection the appellant raises is that the district court erred in denying his motion for a continuance because he could not pursue these witnesses to determine whether any of them would testify favorably concerning Arellano's claims that his statements to the Mexican officials were not voluntary.

The district court has considerable latitude in granting or denying continuances. United States v. Pope, 841 F.2d 954, 956 (9th Cir. 1988); United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978) ("decision to grant or deny a requested continuance is within the trial court's discretion and will not be disturbed on appeal absent clear abuse of that discretion"). To establish abuse the appellant must show that the denial was "arbitrary or unreasonable." Pope, 841 F.2d at 956 (quoting United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985), amended by, 764 F.2d 675 (9th Cir. 1985)). " [F]our factors that are relevant in reviewing a denial of a continuance for abuse of discretion [are]: (1) the requester's diligence in preparing for trial; (2) the likely utility of the continuance, if granted; (3) the inconvenience to the court and the other side; and (4) prejudice from the denial." Id. " [I]n order to obtain a reversal, appellant must show at a minimum that he has suffered prejudice as a result of the denial of his request." Flynt, 756 F.2d at 1359 (internal citation omitted).

Prior to both trials, defense counsel attempted to suppress the 1985 statements made by Arellano to Detective Alaniz [see Defendant's In Limine Motions, 1-3-86 at 8 and Defendant's In Limine Motions, 3-8-87 at 2]. Defense counsel was aware more than two years before the second trial that incriminating statements were made to Detective Alaniz, and was also aware during this time period that the Mexican detective was a potential witness for the prosecution. Id. Defense counsel never interviewed or contacted Detective Alaniz prior to the suppression hearing. Accordingly, it is clear that defense counsel did not exercise due diligence to locate potentially favorable witnesses who may have been present during the first June 1985 interview by Mexican authorities.

In order to establish the utility of the continuance, the appellant had to show that the absent witnesses would testify, to describe the expected substance of the testimony, and to demonstrate the testimony's relevance to the proceeding. See Flynt, 756 F.2d at 1359 n. 7. In this case, it was doubtful that, even had Arellano been able to compel the testimony of the witnesses, they would have offered testimony relevant and helpful to appellant's case.

The court and the government would have been inconvenienced by a continuance to allow the investigation and identification of the potential witnesses, and it is questionable whether the continuance would have been useful.

Finally, no actual prejudice was established by the appellant. The appellant has made no showing of what additional information would have been disclosed at trial had a continuance been granted; appellant has done no more than assert that an investigation would likely lead to some favorable evidence on the issue of voluntariness. "This is clearly insufficient to warrant the disturbance of the District Court's discretionary exercise. What might have been discovered had a continuance been granted is inadequate to establish prejudice." United States v. Hernandez, 608 F.2d 741, 746 (9th Cir. 1979) (internal citations omitted) (emphasis in original). Accordingly, the district court did not abuse its discretion in denying appellant's request for a continuance of the suppression hearing.

Voir Dire

Appellant contends that counsel for the government was not interrupted during voir dire, but that appellant's counsel was repeatedly interrupted by the court during voir dire. According to appellant, "the court's interruptions were always made when a juror was about to open up and discuss relevant issues, rendering the voir dire useless"; thus appellant contends he was denied his Sixth Amendment right to an impartial jury.

Voir dire examination is reviewed for abuse of discretion. United States v. Cutler, 806 F.2d 933, 936 (9th Cir. 1986). Either the court or counsel may conduct voir dire. Fed. R. Crim. P. 24(a). Here, the court granted appellant's motion for attorney voir dire.

Prior to granting appellant's motion for attorney voir dire, the district judge asked that counsel provide a list of specific questions to the court. Because defense counsel only provided a "general outline", the district court stated: " [Defense counsel] runs the risk. If it goes beyond what I consider to be the parameters, he may be--he may be admonished. But we'll do the best we can with that little outline we've got here."

In the voir dire examination, defense counsel was corrected by the district judge when he asked veniremen about matters of law. For example, defense counsel asked "does anybody feel here that Mr. Arellano has any duty to prove that he is innocent?" The court rephrased the question, "will you follow [an] instruction, or will you, in your own mind, require the defendant to some how prove his innocence?" Voir dire's traditional function is to discern bias or prejudice in prospective jurors. Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 258 (5th Cir. 1985). In the instant case, Arrellano's inquiry seeks to elicit whether the jurors understand the law; the query, as phrased, does not further the purpose of voir dire. Therefore, the district court did not abuse its discretion in rephrasing it.

In making these corrections, appellant does not complain that the court embarrassed or unnecessarily chastised defense counsel in front of the jury. Appellant does not complain that he was denied the opportunity to ask any specific question. Since appellant has failed to identify any specific defect in the voir dire examination and since the court gave counsel a full opportunity for an intelligent exercise of challenges by permitting appropriate inquiries of the jury veniremen, appellant was not deprived of an impartial jury.

Jury Instruction

Appellant challenges as constitutional error under Sandstrom v. Montana, 442 U.S. 510 (1979), an ignorance-of-law jury instruction reading:

It is not necessary for the prosecution to prove that the defendant knew that a particular act or failure to act is a violation of the law. Unless and until outweighed by the evidence in the case to the contrary, the presumption is that every person knows what the law forbids and what the law requires to be done.

"A jury instruction is constitutionally defective if it creates a mandatory presumption, either conclusive or rebuttable, which shifts from the prosecution the burden of proving beyond a reasonable doubt an essential element of a criminal offense." United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987) (citing Sandstrom) . In this case, the government was not required to prove that appellant knew it was a crime to transport a firearm; rather, the government was required to prove beyond a reasonable doubt that the appellant transported the firearm from the United States to Mexico with the intent at the time he crossed the border to commit a homicide with the firearm. Advising the jury that it is presumed that every person knows what the law forbids and what the law requires is not the same as requiring the jury to presume or infer a specific intent from the evidence. See Washington, 819 F.2d at 2255-56; see also United States v. Fierros, 692 F.2d 1291, 1293-95 (9th Cir. 1982), cert. denied, 462 U.S. 1120 (1983) (ignorance of the law is not a defense to a crime requiring specific intent).

Furthermore, the jury was instructed that in order for the defendant to be found guilty the United States had to prove three things beyond a reasonable doubt:

First, that the defendant transported a firearm; that is, a revolver specified in the indictment in foreign commerce. Something is transported in foreign commerce if it is physically taken and moved from one country to another. In this case, it is charged that the defendant transported this specified firearm from the United States to the Republic of Mexico.

Second, that the defendant knowingly transported the firearm. An act is done knowingly if it is done voluntarily and intentionally and not because of a mistake or accident or other innocent reason.

Third, that the defendant transported the firearm from the United States to Mexico with specific intent, knowledge, or belief; that is, that the defendant transported the firearm from the United States to Mexico with the intent at the time he crossed the border to commit homicide with the firearm.

Accordingly, the jury instructions given by the district court, considered as a whole correctly state the law and the government was not impermissibly relieved of its burden with respect to an essential element of the charged offense.

AFFIRMED.