Unpublished Disposition, 884 F.2d 1396 (9th Cir. 1986)

MEMORANDUM^** 

Appellant Wallace E. Pendleton (Pendleton) appeals from the judgment entered following his conviction for possessing and passing counterfeit federal reserve notes. Pendleton seeks reversal of his conviction on three grounds. First, he alleges that the court erred by not dismissing the duplicitous counts. Second, he asserts that the trial court erred in admitting evidence regarding counterfeit bills found in the back seat of a patrol car. Third, he claims that the prosecution committed reversible error in asking him an improper question during cross-examination. We disagree and affirm.

On May 10, 1986, Pendleton traveled from his residence in Illinois to the island of Kauai, in the state of Hawaii. During his stay on Kauai, he passed fifteen counterfeit ten dollar bills. Three were passed at a restaurant, seven at a supermarket, and five at a hotel. Thirteen counterfeit ten dollar bills were discovered hidden between the "backrest" and the seat of the patrol car in which he was placed at the time of his arrest on May 12, 1986. R.T. at 124.

On August 22, 1986, a federal grand jury issued a superseding indictment charging him with 16 counts. Each count was for passing a single ten dollar bill, except count 16. Count 16 charged Pendleton with possessing 13 counterfeit bills. On August 28, 1986, a jury returned guilty verdicts against Pendleton on all counts in the indictment. Judgment was entered on October 20, 1986. On October 29, 1986, Pendleton filed a timely notice of appeal.

DISCUSSION

Pendleton asserts that counts 2 through 14 are duplicitous. On August 25, 1986, Pendleton made a pretrial motion to dismiss counts 2, 3, 5, 6, 7, 8, 9, 10, 12, 13, and 14. He asserted that these counts were duplicitous because they relate to a total of three separate transactions. Pendleton withdrew this motion before the trial court had ruled on it.

We have held previously that a defendant may not appeal based on an issue that he withdrew from the trial court's consideration. United States v. Davis, 527 F.2d 1110, 1111 (9th Cir.), cert. denied, 425 U.S. 953 (1976). See United States v. Montoya, 782 F.2d 1554, 1556 (11th Cir. 1976) (the court rejected the "practice of 'sandbagging' the district court by withdrawing a motion ... and then arguing on appeal that reversible error resulted ..."). In the present matter, Pendleton is similarly appealing based on an issue which he did not allow the trial court to decide. Because his motion was withdrawn, Pendleton failed to preserve the issue on appeal.

Pendleton also contends that the trial court erred in admitting the prosecution's evidence concerning count 16. Count 16 charged Pendleton with possessing 13 counterfeit bills. These bills were found in the back seat of a patrol car over 3 months after Pendleton had been placed in it. Before trial, Pendleton made a motion in limine to exclude evidence involving the discovery of the bills in count 16. He asserted that the probative value of any evidence of these counterfeit bills was outweighed by its prejudicial effect because of the time period between the discovery of the bills and his presence in the patrol car. He argued that the discovery of the bills was too remote to relate to him. The district court denied this motion, stating that Pendleton's challenge went to the weight of the evidence.

We review a district court's evidentiary rulings for an abuse of discretion. United States v. Polizzi, 801 F.2d 1543 (9th Cir. 1986). A trial court generally has wide discretion in the admission of evidence. United States v. Scully, 546 F.2d 255, 269 (9th Cir.), cert. denied, 430 U.S. 970 (1977). Under Rule 403 of the Federal Rules of Evidence, a trial court has great leeway in balancing the probative value of evidence against any substantial danger of unfair prejudice. Fed.R.Evid. 403; see also United States v. Vaccarro, 816 F.2d 443 (9th Cir.), cert. denied, 108 S. Ct. 262 (1987).

The district court did not abuse its discretion in admitting the evidence of the 13 counterfeit bills because the prosecution was able to establish facts to link Pendleton to the thirteen bills. The parties stipulated to the fact that "all the counterfeit currency accepted by the court comes from an original common source of manufacture and the vast majority of passing activity ... has occurred in the Chicago, Illinois area." R.T. at 172. The parties also stipulated to the fact that " [t]he known history of note passing as to this family of notes includes the passing of three such notes in or about the Atlanta, Georgia airport in mid-May, 1986." R.T. at 172. Evidence presented at trial indicated that Pendleton had been in this Atlanta airport in mid-May of 1986. Additionally, a police officer testified that Pendleton had been in the police car where the 13 counterfeit bills were later found. See also United States v. Berkley, 288 F.2d 713 (6th Cir.) (court allowed evidence of counterfeit bills found in a street where the defendant had driven his car five days before their discovery), cert. denied, 368 U.S. 822 (1961).

The delay between Pendleton's presence in the car and the discovery of the bills was a factor that went to the weight of the evidence. The district court did not abuse its discretion in admitting this evidence.

Pendleton claims that a question posed by the prosecution during cross-examination resulted in prejudicial error. On direct examination, Pendleton was asked why his wife did not accompany him on the trip during which he was arrested. Pendleton responded that "we had a few problems ... and we weren't seeing eye-to-eye." R.T. at 187. On cross-examination, the government asked Pendleton the following question: "Isn't it true, Mr. Pendleton, that the reason your wife didn't come with you on this trip to Kauai is that she knew you intended to bring a large amount of counterfeit money and spend it and she wanted no part of it?" R.T. at 213. Pendleton objected, stating "I'm going to object to that, unless the Government can prove it." R.T. at 213. The prosecution withdrew its question and did not make any further inquiry into the reason his wife did not travel with him.

Pendleton asserts that the mere asking of this question amounted to egregious prosecutorial misconduct. A claim of prosecutorial misconduct must be viewed in the entire context of the trial. United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir. 1987). To gain reversal because of prosecutorial misconduct, a defendant must show that: (1) the prosecutor erred; (2) the issue was preserved for appeal; and (3) the error was prejudicial. United States v. Berry, 627 F.2d 193, 196-197 (9th Cir.), cert. denied, 449 U.S. 1113 (1981). We give "considerable deference to the trial court's view" in determining whether prosecutorial misconduct occurred. United States v. McWilliams, 730 F.2d 1218, 1222 (9th Cir. 1984); United States v. Tham, 665 F.2d 855, 860 (9th Cir. 1981), cert. denied, 456 U.S. 944 (1982).

It is improper to ask a defendant a question on cross-examination where the prosecutor has no knowledge of any facts that would demonstrate the truth of the matter insinuated or suggested in the inquiry. United States v. Tham, 665 F.2d at 861. In United States v. Tham, the prosecutor asked the defendant whether he had had conversations with a state judge before another trial in which the defendant had been acquitted. The prosecutor then asked the defendant whether he had ever done a favor for the state judge. Despite an objection, the prosecutor asked a second question concerning the performance of favors for a judge. Id. Because the prosecutor had no basis for these questions, we held that the government was guilty of misconduct. Id.

The prosecutor in the instant matter had no knowledge of any evidence that would prove that Pendleton's wife did not go on the Kauai trip with him because she wanted to avoid being involved with passing the counterfeit bills. R.T. at 213-214. When the cross-examination was interrupted by objection, and the court pointed out that asking a question without supporting evidence is improper on cross-examination, the prosecutor withdrew the question. The prosecutor was guilty of misconduct in framing the question under these circumstances. We must next determine whether this error was prejudicial.

We note at the outset that this misconduct was an isolated incident. Pendleton did not request that the jury be admonished that any facts insinuated by the question should be disregarded. Prior to voir dire examination, however, the district court admonished the prospective jurors as follows:

Remember that what the attorneys say is not evidence. And there's an interesting thing about this, even the questions put by an attorney are not evidence. Questions are not evidence.

For example, to show you how that works, suppose that there is a witness on the stand here and suppose that the attorney says are we today in Honolulu, Hawai'i. The witness does not answer. The question doesn't prove that we're in Honolulu, Hawai'i. It is only the answer of the witness that counts. Is that clear enough?

I say that because what the attorneys say and what they argue is not evidence.

R.T. at 9.

In its closing instructions, the court reiterated this principle in the following words: "Remember again that any statements, objections, or even questions made by the lawyers are not evidence in the case." R.T. at 292. Pendleton has not demonstrated that the jury disregarded the court's careful instructions or that the improper question affected the outcome of its deliberations.

Furthermore, the government presented eye witnesses who testified that Pendleton had passed counterfeit bills. It also presented expert witnesses who testified as to the common source of the counterfeit bills. In short, the evidence of guilt was overwhelming. We are persuaded that "it is more probable than not that the misconduct did not affect the verdict." Tham, 665 F.2d at 861. Accordingly, the judgment of the district court is AFFIRMED.