Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1988)

No. 89-30018.

United States Court of Appeals, Ninth Circuit.

Before WRIGHT, REINHARDT and O'SCANNLAIN, Circuit Judges

MEMORANDUM** 

Ramon Aguilar appeals from his convictions for various crimes related to possession of controlled substances with the intent to distribute. He alleges that the district court erred in declining to include two defense-requested jury instructions and in denying his motion for a mistrial due to the prosecutor's allegedly improper comments during closing arguments. We affirm.

* On March 11, 1988, the police searched, pursuant to a warrant, the residence of Scott and Wendy Crane. The search revealed cocaine in Scott Crane's dresser drawer, plastic baggies with cocaine residue, scales and other drug paraphernalia. Scott Crane appeared very concerned that his wife, Wendy, who has multiple sclerosis, would be sent to jail. The police suggested that if he cooperated in an investigation, charges would not be brought against his wife. Scott Crane agreed.

Pursuant to his agreement with the police, Scott Crane took steps to order a kilogram of cocaine. Scott Crane turned to a page labeled "R" in an address book. The telephone numbers of one Roman Magana and one Ramon Aguilar were listed on that page. There is some dispute over which one Scott Crane actually telephoned. Approximately 30 minutes after Scott Crane made the telephone call, Aguilar and his brother, Santiago Aguilar, entered the Cranes' residence. The police searched both men and discovered a kilogram of cocaine on the person of Santiago Aguilar and a pager, which corresponded to the telephone number in Scott Crane's address book, on the person of Aguilar.

After a jury trial, Aguilar was convicted, pursuant to 21 U.S.C. § 846, of conspiracy to distribute a controlled substance and various other related crimes. Aguilar now appeals.

II

Aguilar first asserts that the district court erred in refusing to include two proposed jury instructions regarding Scott Crane's credibility as a witness. Aguilar agrees that the district court's jury instructions adequately covered Scott Crane's credibility and bias as a witness given Crane's prior felony conviction, the immunity Wendy Crane was promised, and his addiction to cocaine. Aguilar nevertheless complains that the instructions did not adequately cover Scott Crane's demonstrated bias towards Aguilar evidenced by allegedly untrue accusations he made about Aguilar on March 11, 1988. We disagree.

We review a district court's jury instruction for abuse of discretion. United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986). Viewing the jury instructions as a whole, we examine whether the district court gave adequate instructions on each element of the case to ensure that the jury was fully informed of the isues, and we consider whether the instructions were misleading or stated the law incorrectly to the prejudice of the objecting party. Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir. 1986). " [A] defendant is not entitled to any particular form of an instruction so long as the instructions given fairly and adequately cover his theories of defense." United States v. Faust, 850 F.2d 575, 583 (9th Cir. 1988). The district court has broad discretion in tailoring the precise language of the jury instructions. Id.

Here, the record reveals that the jury instructions adequately covered Aguilar's defense theory. Scott Crane was cross-examined regarding the statements he made on March 11, 1988 about Aguilar. During the cross-examination, Scott Crane stated that he incorrectly told the police officers that Aguilar had been at the Cranes' home on March 10, 1988. The district court subsequently instructed the jury: "Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony.... After making your own judgment, you will give the testimony of each witness such credibility, if any, as you may think it deserves." Jury Instructions, No. CR-88-119-Y, (Oct. 4, 1988).

Although the district court declined to adopt the defense's particular version of the jury instructions, the given instructions allowed the jury to adopt Aguilar's theory of the case. The district court therefore did not abuse its discretion in refusing to adopt the proposed jury instructions regarding witness credibility.

III

Aguilar next argues that the district court erred in denying his motion for a mistrial and his motion for an acquittal. During the rebuttal argument, the prosecutor called upon the jury "not to return Mr. Aguilar to the streets, so he can keep selling the poison, but to return a verdict of guilty so this court can deal with him." Aguilar contends that the prosecutor improperly asked the jury to consider potential future conduct.

Although Aguilar's attorney did not object at the time of the closing argument, the district court considered the merits of the motion. Therefore, we apply the harmless error rule. See United States v. Dixon, 562 F.2d 1138, 1143 (9th Cir. 1977), cert. denied, 435 U.S. 927 (1978). The district court has broad discretion over closing arguments and the reviewing court will not reverse a judgment because of statements made during closing arguments unless they were so prejudicial that a failure to declare a mistrial was an abuse of discretion. Guam v. Ignacio, 852 F.2d 459, 462 (9th Cir. 1988).

It may have been preferable for the prosecutor not to urge the jury to consider Aguilar's potential future conduct. Given, however, "the circumstances of the trial as a whole, [the remark was not] ... so prejudicial that [it] likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." United States v. Patel, 762 F.2d 784, 795 (9th Cir. 1985).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3