Unpublished Disposition, 878 F.2d 387 (9th Cir. 1988)

MEMORANDUM^** 

Shawn Hill appeals from the judgment of the district court entered following his convictions for possession with intent to distribute marijuana under 21 U.S.C. § 841(a) (1), (b) (1) (B) (vii); importation of marijuana under 21 U.S.C. §§ 952(a), 960(a) (1), and 960(b) (2) (G); conspiracy to possess with intent to distribute marijuana under 21 U.S.C. §§ 841(a) (1), (b) (1) (B) (vii), 846; and conspiracy to import marijuana under 21 U.S.C. §§ 952(a), 960(a) (1), 960(b) (2) (G) and 963. Hill seeks reversal on the following grounds: (1) The district court erred in allowing the in-court identification of Hill; (2) The district court erred in admitting evidence of prior bad acts; (3) The district court erred in denying Hill's motion for a new trial.

We affirm.

* BACKGROUND

On February 10, 1988, Hill, Benito Garcia, and another co-defendant, Juan Martinez, were charged in a four-count indictment with possession with intent to distribute 550 pounds of marijuana, importation of 550 pounds of marijuana, conspiracy to possess with intent to distribute 550 pounds of marijuana, and conspiracy to import 550 pounds of marijuana.

The indictments stemmed from the execution of a plan to transport 550 pounds of marijuana from Mexico to Douglas, Arizona, on December 6, 1987. Martinez solicited the aid of Rene Paredes to bring a carload of marijuana to Douglas. Martinez told Paredes to bring a woman along. Paredes did not know of any woman who would be willing to go along, so he solicited the help of Garcia. Paredes told Garcia that the woman would be paid $500 to sit in the car. Garcia stated that he thought Maria Lourdes might be available. Garcia took Paredes to see Lourdes. Garcia explained the plan to Lourdes and she agreed to go.

Paredes and Lourdes set out in a red pick-up truck, supplied by Martinez, to a run-off wash behind D Mountain. There they met Hill and another individual waiting on a red motorcycle. While Lourdes waited in the truck, the other three crossed under the international border fence into Mexico where they found sacks of marijuana stashed under a tree. They dragged the sacks under the fence across the border into the United States and loaded them on to the back of the truck. They covered the sacks with plywood.

The group headed back to Douglas, Arizona, with Hill and his companion on the motorcycle in the lead. Paredes and Lourdes followed in the pick-up truck.

A short time later, Hill was stopped by Border Patrol Agent Knight. Hill and his companion were questioned for two or three minutes and released. When Paredes saw the border patrol vehicle he made a quick U-turn. He and Lourdes abandoned the pick-up, fled on foot, and were ultimately apprehended. Five hundred and fifty pounds of marijuana were found in the truck.

Trial began on April 22, 1988. Garcia and Hill were tried together. Hill was found guilty of all counts on April 26, 1988. The district court entered a judgment of conviction against Garcia on June 28, 1988. Hill filed a motion for a new trial on May 3, 1988. The motion was denied after an evidentiary hearing on July 26, 1988. The district court entered a judgment of conviction against Hill on July 27, 1988. Hill filed a timely notice of appeal.

II

DISCUSSION

Hill contends that the district court committed reversible error in admitting evidence of his in-court identification on the ground that it was tainted because DEA agents showed Agent Knight a single photograph of Hill four days prior to trial. Knight testified that, in the course of his investigation, he obtained a photograph of Hill from the Douglas Police Department. Four days prior to trial, DEA agents showed him a photograph of Hill. After eliciting this testimony from Knight, Hill moved for a mistrial or alternatively to strike the in-court identification. The district court denied the motion. The court did not explain whether the denial of the motion was based on a finding that the show-up was not impermissibly suggestive or, instead, whether the denial was based on a finding that the identification was reliable, although the procedure was suggestive.

We review independently and non-deferentially the constitutional impact of pretrial identification procedures. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986). A two-step inquiry is used to determine whether a pretrial identification procedure is constitutional. United States v. Givens, 767 F.2d 574, 581 (9th Cir.), cert. denied, 474 U.S. 953 (1985). We must first decide whether the procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simons v. United States, 390 U.S. 377, 384 (1968); Givens, 767 F.2d at 581. This requires us to examine the totality of the surrounding circumstances. Bagley, 772 F.2d at 492. If the identification procedure was impermissibly suggestive, we must then determine whether it was "nonetheless reliable." Neil v. Biggers, 409 U.S. 188, 198-200 (1972); Givens, 767 F.2d at 581.

Unfortunately, in the instant matter, the "totality of the surrounding circumstances" concerning the single photograph show-up is not contained in the record. Hill elicited testimony that Knight obtained a photograph of Hill at the time of his investigation. The record also shows that a DEA case agent showed Knight a single photograph of Hill four days prior to trial. There is nothing in the record indicating the reason that the DEA case agent showed Knight the photograph, or whether the DEA case agent merely showed it to him without comment. The record is also silent regarding whether the DEA agent indicated to Knight that the photograph was a photograph of Hill at the time he showed Knight the photograph. The photographs were not submitted to the district court. The record contains nothing more than the fact that Knight was shown a single photograph of Hill prior to trial.

Contrary to Hill's argument, evidence that an identification witness was shown a single photograph is not, standing alone, impermissibly suggestive. Bagley, 772 F.2d at 493. In Bagley, we held that a single person show-up shortly after a bank robbery, although suggestive, did not taint an in-court identification based on the witness' view of the suspect at the time the crime was committed. Id. at 492-94.

Hill has failed to demonstrate that showing a single photograph to Agent Knight was impermissibly suggestive. The district court did not err in denying Hill's motion for a mistrial or his motion to strike Knight's in-court identification.

Hill objected to the introduction of Detective Haws' entire testimony on the ground that it consisted of prior bad acts or admissions of planned bad acts by Hill. The district court concluded that the evidence was admissible under Federal Rule of Evidence 404(b) to show intent and lack of mistake. The district court also determined that the probative value of the evidence outweighed any prejudice. We review a district court's decision to admit evidence of prior bad acts under Rule 404(b) for abuse of discretion. United States v. Nomandeau, 800 F.2d 953, 956 (9th Cir. 1986).

Detective Haws testified that while he was working undercover he met with Hill on several occasions. Haws testified during one of their meetings on November 19, 1987, that Hill stated that he was going to "run a load" of 400 pounds of marijuana that evening. Hill further stated that they would cross the border, put the marijuana in backpacks, and cross back into the United States. Then with his hand-held radio Hill would radio for the load vehicles. Hill stated that he and others had purchased a pick-up truck the day before to load the marijuana. Hill told Haws he would receive $1500 and a motorcycle for making the run that night.

Hill contends that before the evidence could be admitted, the government was required to prove that the acts Hill told Haws about actually took place. Hill contends that if the acts did not take place, Haws' testimony was not relevant. Hill relies on the Supreme Court's decision in Huddleston v. United States, 108 S. Ct. 1496 (1988).

In Huddleston, the defendant was charged with selling stolen videotapes in interstate commerce. Id. at 1497. The government elicited testimony that the defendant, on a prior occasion, had offered to sell the witness a large number of television sets. Id. at 1498. It was the government's theory that the televisions were stolen. The defendant objected to the offered testimony on the ground that the government failed to prove the televisions were stolen. Id. at 1499. The Court concluded that the testimony was only relevant if the televisions were in fact stolen. The Court turned to the issue of conditional relevance as addressed by Federal Rule of Evidence 104(b) which provides:

Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

The Court determined that under Rule 104(b) the trial court was not required to weigh credibility or make findings of fact. Id. at 1501. "The court simply examines all the evidence in the case and decides whether the jury could find the conditional fact--....--by a preponderance of the evidence." Id. The Court further stated that if the government could not prove the fact upon which relevance is conditional at the time the evidence of prior bad acts is offered, the district court could admit the evidence and let the government "connect it up" later. Id. at 1501-1502 n. 7. The Court concluded that enough evidence existed for the jury to reasonably conclude that the televisions were stolen. Id. at 1502.

In the instant matter, there was sufficient evidence in the record for the jury to reasonably infer that Hill did "run a load" of marijuana on November 19, 1987. Under the Hillmon doctrine, Hill's statements of his intention to "run a load" of marijuana on November 19, 1987, were admissible to prove Hill's intent to perform the particular acts, and from this demonstration of intent the jury could draw the inference that Hill carried out his intention to perform the acts. United States v. Pheaster, 544 F.2d 353, 376 (9th Cir. 1976), cert. denied, 429 U.S. 1099 (1977).

Moreover, other evidence corroborated the inference that Hill did run the load of marijuana on November 19, 1987. Paredes testified that on December 6, 1987, Hill was waiting for him on a motorcycle behind D Mountain to get the marijuana. Lourdes also testified that Hill was driving a motorcycle on December 6, 1987. Agent Knight testified that the temporary registration certificate taken from the pick-up truck showed that the truck was purchased on November 18, 1987, just as Hill stated. In addition, if Hill believed that the government had failed to satisfy the condition (i.e. failed to establish that Hill committed the prior acts), he was required to move to strike the evidence at the close of the trial. Huddleston, 108 S. Ct. at 1501-1502 n. 7. Hill did not do this.

Hill contends that even if the similar acts were established, they were not admissible under Rule 404(b) to show intent because intent is not an issue when a defendant denies participation in the criminal activity. Hill is correct. "When a defendant denies participation in the act or acts which constitute the crime, intent is not a material issue for the purpose of applying rule 404(b)." United States v. Powell, 587 F.2d 443, 448 (9th Cir. 1978). In such a case, however, identity is an issue. Id. When identity is an issue the similarity of the modus operandi helps identify the perpetrator. United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987).

In the instant matter, Haws' testimony was admissible to show Hill's plan and modus operandi. Hill's description of his drug plan given to Haws was very similar to the events charged in the indictment and established at trial. Hill stated he would be paid in part with a motorcycle for the November 19, 1987 run. Hill was riding a motorcycle during the December 6, 1987 run. Hill said that he and his companions purchased a pick-up truck on November 18, 1987, to load the marijuana. The pick-up truck used on December 6, 1987, was purchased on November 18, 1987. Hill said he used a hand-held radio to notify the load vehicle. A hand-held radio was found in the pick-up truck on December 6, 1987. Moreover, Hill pointed out the area to Haws where they would come across the border. Hill further indicated how they would travel on Geronimo Trail toward Douglas. This was consistent with the travel of Hill and his companions on December 6, 1987. Although Hill told Haws they would put the marijuana on their backs and bring it across the border, the fact that the sacks were dragged across the border on December 6, 1987, does not render the testimony inadmissible. The prior acts must be similar. They need not be identical.

Having determined that Haws' testimony was admissible under Rule 404(b), we must determine whether the probative value of the evidence outweighed its prejudicial impact. Id. at 1069. We review a court's balancing of the prejudicial impact under Federal Rule of Evidence 403 for abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987).

The record indicates that the district court held a hearing on Hill's motion to exclude Haws' testimony. The district court even reserved ruling on the motion to give the motion further thought. Haws' testimony was highly probative evidence supporting the conspiracy and importation charges. The district court properly concluded that the probative value outweighed the prejudicial impact. We conclude that the district court did not abuse its discretion in admitting Haws' testimony.

Hill contends that the district court erred in denying his motion for a new trial. We review the denial of a motion for a new trial for abuse of discretion. United States v. Herbert, 698 F.2d 981, 985 (9th Cir.), cert. denied, 464 U.S. 821 (1983).

On the last day of trial Hill had scheduled the testimony of two alibi witnesses, Ted and Claudia Serr. When they did not appear, the court allowed Hill to try to contact them. Hill was unable to do so. Hill did not ask for a continuance so that he could present the Serrs' testimony.

Seven days after the verdict was rendered Hill filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. He did not specify whether he was entitled to a new trial in the interest of justice or on the basis of newly discovered evidence. Hill presented the testimony of the Serrs in support of his motion. The district court denied the motion on the ground that the Serrs' alibi testimony was cumulative and would not affect the outcome. In response, Hill merely argued that the evidence was not cumulative.

A new trial is warranted under Rule 33, "if required in the interest of justice." Hill did not demonstrate to the district court that it would be in the interest of justice to grant the motion for a new trial. Hill did not demonstrate that he was entitled to a new trial based on newly discovered evidence. In fact, the record shows that Hill had requested that the Serrs appear and testify at trial, but their car broke down. Although Hill had contacted the Serrs the day before he intended to call them as witnesses and asked them to appear, they were not subpoenaed. Furthermore, Hill did not request a continuance of the trial when they failed to appear. This undermines Hill's claim of due diligence in presenting their testimony. See United States v. Oliver, 683 F.2d 224, 228 (7th Cir. 1982) (where no subpoena has been issued and no continuance has been requested, due diligence claim is seriously undermined).

A decision that it would not be in the interest of justice to grant Hill's motion for a new trial is implicit in the district court's ruling. It is not in the interest of justice for a defendant to sit back without requesting a continuance after his witnesses have failed to appear, let the case go to the jury, and then, after an adverse verdict, claim that he is entitled to a new trial. Finality of judgment is in the interest of justice. Hill's failure to request a continuance casts a doubt on his claim that the Serrs' testimony would have affected the outcome of the trial. The district court did not abuse its discretion in denying the motion for a new trial.

III

CONCLUSION

The judgment of conviction entered by the district court against Hill is AFFIRMED.