Unpublished Disposition, 890 F.2d 420 (9th Cir. 1989)

MEMORANDUM^* 

Defendants-appellants Carolyn Walker Saturley and German Bojorquez, along with others, were indicted for possession with intent to distribute more than 100, but fewer than 1000, kilograms of marijuana, and for conspiracy to distribute marijuana. Saturley and Bojorquez went to trial and were found guilty on both counts.

* The drug sale involved the participation of Albert Cannon, a government informant, who Saturley claims entrapped her. According to Saturley, the district court should have instructed the jury on the defense of entrapment. She also argues that the district court erred in limiting her cross-examination of the government informant, in admitting her post-arrest statement, and in excluding an enlarged photograph as an exhibit. Bojorquez contends that the district court erred in refusing to instruct the jury on a lesser-included offense.

We find that there is insufficient evidence to justify an entrapment instruction regardless of whether we review de novo or for abuse of discretion.¹  Although Saturley claims that she was fearful of Cannon and therefore was induced to cooperate, such fear is insufficient to entitle her to an instruction on entrapment. As the district judge noted, such fear, which is " ' [t]he only thing she testified to,' " would lead to a defense of duress rather than entrapment, but there was not enough evidence for either instruction in this case. Brief of Appellee at 20 (quoting Reporter's Transcript ("R.T.") at 324-25).

As the evidence demonstrates, Saturley associated with people involved in drugs, expressed her desire to arrange a safe place for the drug deal, and exhibited enthusiasm and confidence about the deal. When the deal looked as if it would not take place, she allegedly told the Drug Enforcement Administration ("DEA") agent that " 'if this didn't go through ... she had a better connection.' " Id. at 23 (quoting R.T. at 53). In sum, Saturley failed to provide sufficient evidence of entrapment to justify an instruction on the defense. As the district judge noted during the charging conference, Saturley had the opportunity during her testimony to describe how Cannon had urged her to become involved in the drug deal, but " 'she never said it. And, obviously, it wasn't [at his urging], or she would have testified to it.' " Id. at 20 (quoting R.T. at 325).

II

Saturley also contends that the district court should have allowed her to engage in more extensive cross-examination of Cannon to expose his underlying bias and untrustworthiness as a witness. In particular, Saturley wanted to question Cannon about his reluctance to appear in court and his prior conviction. In each of these and other instances, the trial judge allowed Saturley to elicit certain information from Cannon, but did not allow her to explore the issues in great detail. Because we review for abuse of discretion, we treat the trial judge's ruling with deference. We do not find that the trial judge abused his discretion by allowing in relevant information while keeping out unnecessary detail.

III

Saturley also claims that the district court erred in admitting her post-arrest statement. When Saturley was arrested, an officer read her her Miranda rights and Saturley declined to give a statement. Subsequently, she jokingly asked a second officer to check if her wash was done and to put the clothing in the dryer. What emerged from this exchange was Saturley's remark that " 'she wasn't going to make that much on this deal.' " Appellee's Brief at 28 (quoting R.T. at 169).

Saturley argues that the officer should have advised her again of her Miranda rights because her request about the dryer was not a waiver of her rights. Her theory is that she did not authorize him to question her after she had indicated that she did not wish to answer any questions. The government, however, contends that Saturley "volunteered" the remark. The government argues that the colloquy was not improper because either Saturley voluntarily resumed discussion after having asked to terminate the interview or she had only agreed not to answer any questions at the time when she was initially questioned.

After a hearing on whether the statement was voluntary, the district court ruled that Saturley had knowingly and voluntarily waived her Miranda rights, and we review this decision under the clearly erroneous standard. United States v. Doe, 787 F.2d 1290, 1293 (9th Cir. 1986). Whether Saturley's comment constituted a valid waiver depends on whether " 'the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances.' " Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983) (quoting Edwards v. Arizona, 451 U.S. 477, 486 n. 9 (1981)).

The Supreme Court, in Colorado v. Spring, 479 U.S. 564 (1987), set forth a two-part test to determine whether a suspect validly waived his or her Miranda rights:

"First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived."

Id. at 573 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)) (quotation omitted). There is no dispute that Saturley was read her Miranda rights and understood them. There is also no dispute that Saturley initiated the conversation with the officer, Appellant Saturley's Opening Brief at 28, and that it was "the product of a free and deliberate choice." Spring, 479 U.S. at 573. Under the totality of the circumstances, then, the district court's determination is not clearly erroneous and should not be disturbed.

IV

Saturley also wanted to introduce a photograph of a dead friend's body to show that she had reason to fear Cannon, who had allegedly been attacked by the friend and had shot him in the struggle that ensued. Saturley had testified on direct that she had witnessed the shooting and had seen the body. The photograph, then, would not have added to her testimony, but could have prejudiced the jury. The trial judge must "balance [ ] the prejudicial effect and probative value of photographic evidence" and his determination "is rarely disturbed." United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986). We hold that the trial judge did not abuse his discretion in weighing the probative value of the photograph against its prejudicial effect and in deciding to exclude the photograph.

V

Saturley also argues that the cumulative effect of these errors denied her her right to a fair trial. However, we need not reach this question because we do not find that the alleged errors were in fact errors.

VI

Defendant-appellant Bojorquez claims that the district court should have instructed the jury on the lesser-included offense of possession of fewer than 100 kilograms of marijuana with intent to distribute. Bojorquez argues that the jury should have been given this instruction because the weight of the marijuana was not established at trial.

In reviewing whether the trial judge should have instructed the jury on a lesser-included offense, we engage in a two-part inquiry. The first step is to ask whether the defendant has identified a lesser-included offense within the offense charged. United States v. Komisaruk, 874 F.2d 686, 694 (9th Cir. 1989) (quoting United States v. Johnson, 637 F.2d 1224, 1233-34 (9th Cir. 1980)). Bojorquez has done so in this case, and it is not contested by the government. The second step is to determine that " 'a rational trier of fact must be able to find the defendant guilty of the included offense but innocent of the greater offense.' " Id.

The government cites evidence that DEA weighed the thirteen bundles of marijuana and found that they totalled 387 pounds. There was other evidence that the total weight was 381 1/2 pounds. In addition, the government brought in a wrapped bale of marijuana for the jury to inspect, as well as photographs of the thirteen bundles. For Bojorquez to be charged with the lesser-included offense of fewer than 100 kilograms (220 pounds), the plastic wrapping would have had to constitute at least 160 pounds, and no rational trier of fact could have concluded that the wrappings weighed that amount. The trial judge did not err in declining to instruct the jury on the lesser-included offense.

VII

The district court also imposed a special assessment on Saturley and Bojorquez. Special assessments have been declared unconstitutional in our Circuit. United States v. Munoz-Florez, 863 F.2d 654 (9th Cir. 1988). That portion of defendants' sentence is VACATED. In all other respects, the judgments of conviction are AFFIRMED.