Unpublished Disposition, 897 F.2d 534 (9th Cir. 1990)

MEMORANDUM^** 

In these consolidated cases, Soheil Sedaghat appeals his conviction and sentence, following a jury trial, for possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871, and mailing an explosive device with intent to injure or kill another, in violation of 18 U.S.C. § 1716(d).

Sedaghat contends that the district court erred by refusing to give his requested jury instruction, and contends that he was deprived of his fourth amendment right by the government's use of suppressed evidence during sentencing and post-trial motions. He also appeals the district court's denial of his motion for a judicial recommendation against deportation. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Sedaghat contends that the district court erred by refusing to include his requested jury instruction regarding the necessity of proving the chain of circumstances in circumstantial evidence cases. The district court's failure to give Sedaghat's requested jury instruction was not an abuse of discretion. See United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

The failure to give a particular instruction is reviewed in the context of the adequacy of the instructions as a whole. United States v. Washington, 819 F.2d 221, 226 (9th Cir. 1987). A criminal defendant, while entitled to an instruction on his theory of the case, is not entitled to the specific language he proposes. United States v. James, 576 F.2d 223, 226-27 (9th Cir. 1978).

The distinction between circumstantial and testimonial evidence has long been held invalid by this court. United States v. Poland, 659 F.2d 884, 887 (9th Cir. 1981), cert. denied 454 U.S. 1059 (1981). We have noted that "circumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred." United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978), cert. denied 439 U.S. 1074 (1979). Standing alone, circumstantial evidence is sufficient to sustain a conviction. United States v. Talbert, 710 F.2d 528, 530 (9th Cir. 1983).

Here, the jury was instructed that the government was required to prove Sedaghat's guilt beyond a reasonable doubt, and that each and every element of the crimes had to be established by proof beyond a reasonable doubt. The jury was also instructed that the law does not distinguish between direct and circumstantial evidence. Ultimately, the jury was instructed that if, following careful consideration of all of the evidence, it did not feel convinced to a moral certainty that Sedaghat was guilty as charged, he should be acquitted.

The jury instructions as a whole gave the jury a fair and adequate distillation of the law. See Washington, 819 F.2d at 226. Therefore, the district court did not abuse its discretion. See Echeverry, 759 F.2d at 1455.

Sedaghat contends that the district court erred by considering evidence found through an illegal search and seizure during sentencing and his motion for new trial. The district court's use of such information during sentencing was proper and Sedaghat has not shown that the district court used this information to deny his motion for a new trial.

We have previously considered whether it was reversible error for the sentencing judge to consider illegally seized evidence when deciding an appropriate sentence. United States v. Larios, 640 F.2d 938 (9th Cir. 1981). The facts of Larios are on point with those presented here. In Larios, the police officers had obtained a search warrant before conducting the search, and the court found that the warrant's illegality stemmed not from overbreadth, but from a technical error in the affidavit in support of the warrant. Id. at 942. We held there that the trial court's consideration of such evidence at sentencing was proper, because the police misconduct was "not sufficient to justify interfering with individualized sentencing." Id. at 942.

Here, illegality of the evidence excluded was caused by a technical defect in the search warrant affidavit. Thus, the district court did not err by considering the suppressed evidence at Sedaghat's sentencing. See id. Further, the record does not support Sedaghat's contention that the suppressed evidence was used to deny his motion for a new trial. Therefore, the district court's judgment is affirmed.

Sedaghat appears to question the district court's denial of his motion for a judicial recommendation against deportation. Nevertheless, he concedes that the district court did not abuse its discretion by denying the motion. Therefore, this matter is not discussed.

AFFIRMED.