Unpublished Disposition, 899 F.2d 19 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Maurice HERNANDO, Defendant-Appellant.

No. 89-50008.

United States Court of Appeals, Ninth Circuit.

Submitted March 6, 1990* Decided April 5, 1990.

Before CANBY, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM** 

The appellant, Maurice Hernando, appeals his conviction for the distribution of approximately 966 grams of 80% pure cocaine on May 17, 1988, in violation of 21 U.S.C. § 841(a) (1).

On appeal, Hernando contends that (1) the evidence was insufficient to convict him because he demonstrated that he was entrapped; (2) the district court improperly limited the cross-examination of the government's informant; (3) the prosecutor improperly cross-examined Hernando's sole reputation witness; (4) the district court improperly allowed expert testimony as to the significance of the evidence; and (5) the district court improperly allowed evidence of prejudicial uncharged misconduct unrelated to the charges at trial via a tape recording.

We affirm the rulings of the district court.

DISCUSSION

Standard of Review

The standard of review is whether the evidence was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. United States v. Ramos, 558 F.2d 545, 547 (9th Cir. 1977). The evidence must be viewed in the light most favorable to the government. Id. All evidentiary conflicts must be resolved in favor of the verdict. Id. at 546.

Entrapment

Hernando claims he was entrapped because the government informant promised Hernando he could fix Hernando's bad credit for a fee of $500 to $1000. Hernando claims he and the informant subsequently socialized, at which time Hernando became aware the informant was a narcotics dealer. According to Hernando, the informant asked Hernando if Hernando could make a connection for him with the Columbians, and later promised to fix the bad credit for free if Hernando would introduce him to the right people. Hernando claims he was promised a percentage reward, and that the informant was very persistent, telephoning Hernando three to four times a week.

Based on these assertions, Hernando claims the evidence was insufficient to convict him because he demonstrated that he was entrapped. The crux of entrapment is whether the defendant was predisposed to commit the crime. United States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986). Viewing the evidence in the light most favorable to the government, it plainly shows Hernando was knowledgeable about Colombian sources of cocaine, had previously engaged in narcotics transactions, wanted to do business with the informant and cut another person out of their business arrangement, and participated in drug deals to make money. This evidence shows Hernando was predisposed to commit the crime for which he was convicted.

Cross-Examination of the Confidential Informant

Hernando complains on appeal that the district court improperly limited his cross-examination of the informant, thereby violating his sixth amendment right of confrontation. He claims he was not permitted to inquire into all the informant's prior convictions, including misdemeanors and those convictions over ten years old, nor into all arrests.

We review de novo whether a district court has violated the confrontation clause, subject to the standard of whether there was harmless error beyond a reasonable doubt. United States v. Jenkins, 884 F.2d 433, 435, 436 (9th Cir.), cert. denied, 110 S. Ct. 568 (1989).

The following exchange occurred between the court and defense counsel on the subject of inquiry into the informant's past conduct:

Mr. Haigh: Your Honor, could I inquire of the Court--

The Court: Sure.

Mr. Haigh: --because I don't want to impose either on the Court or the U.S. Attorney--to try to get clear in my own mind exactly the situation.

My anticipation was that I would be able to ask as to the misdemeanor convictions, let's say, were you convicted of disorderly conduct back in 1960.

The Court: You can do that.

I don't want him to have to revisit the details of what he did.

Mr. Haigh: Right.

The Court: In the first place, its seamy; in the second place, it doesn't really go to the problem that you're dealing with, but you can argue from it and you can make him say that it happened.

Mr. Haigh: I have no intention of inquiring into the specifics of what he did, and barring some total change in what I know about the evidence, it is not my contemplation that I would be inquiring in that nature.

The Court: Splendid. Than I think that we have a basis for going forward.

Reporter's Transcript, Vol. 2 at 20 (emphasis added).

This interchange demonstrates that at trial, defense counsel agreed he need not inquire into the specifics of the informant's previous criminal activities. The record shows he never sought to impeach the informant with prior arrests, if any. Because the defendant acquiesced in the district court's ruling, and obtained everything he sought, he is not entitled to ask for more on appeal by claiming the district court erred.

Moreover, the confrontation clause is satisfied once cross-examination reveals sufficient information with which to appraise the witness's possible bias and motives." United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir. 1982). The jury heard extensive evidence of the informant's criminal past and financial motives. We find that evidence was sufficient for the jury to appraise the informant's biases and motives.

Whether the Prosecutor Improperly Cross-Examined Hernando's Sole Reputation Witness

Hernando claims it was improper for the prosecutor to have asked Hernando's sole reputation witness whether knowledge of Hernando's activities would change his opinion of Hernando's good character. The reputation witness stated he had read the transcripts that described Hernando's activities for which Hernando was indicted. The witness stated that the knowledge he gained from the transcripts did not change his opinion of Hernando's good character. There was no objection to this line of questioning.

When there is no trial objection to the questioning of a witness, we review for plain error. United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986).

Hernando argues on the basis of a case from another circuit that the questioning of the witness was improper impeachment. See United States v. Hewitt, 663 F.2d 1381, 1390-91 (11th Cir. 1981). He argues that questioning as to specific acts of alleged criminal conduct, as if they were true, is improper.

It is established that reputation witnesses may be asked if they have heard of a fact that tends to reflect negatively on the defendant's reputation. Michelson v. United States, 335 U.S. 469, 478-79 (1948). According to the Eleventh Circuit, if they have not, that fact demonstrates that their knowledge of the defendant is lacking and unreliable. Hewitt, 663 F.2d at 1390-91. If the witness has heard of these facts, but still testifies the defendant's reputation is good, then the witness is either lying or applies lower standards to assess the defendant's good reputation. Id. In Hewitt, the Eleventh Circuit found that once the government had demonstrated the witness's knowledge was shallow and unreliable, the prosecutor then improperly asked the witness to speculate. Id. at 1391.

The situation here is distinguishable. The reputation witness volunteered that he was familiar with the facts of the case.1  He was not asked to speculate. Therefore, the holding in Hewitt is not applicable.

Whether There Was Error in Permitting Expert Testimony About the Relationship of Evidence Seized and Narcotic Transactions

Hernando argues the district court erred in allowing experts to testify concerning the relationship between certain evidence introduced in the case (specifically, guns and 5.5 grams of cocaine seized at Hernando's residence, a meeting set up on May 14, 1988, types of cars that were driven, a package of cocaine, use of a pager, counter-surveillance, possession of a balance scale by an associate of Hernando's, and Hernando's $70,000 in bank accounts) and what drug dealers "normally" do.

A trial judge has broad discretion whether to admit expert testimony. His decision will be reversed only if it is manifestly erroneous. United States v. Espinosa, 827 F.2d 604, 611-12 (9th Cir. 1987), cert. denied, 485 U.S. 968 (1988).

We have specifically held that " [l]aw enforcement officers with sufficient qualifications may testify concerning the methods and techniques employed in an area of criminal activity." Id. at 612. Hernando does not dispute that the officers who testified were qualified. He points out that each one had twenty or more years of experience. Moreover, the Court sustained an objection to testimony calling for an opinion as to the hypothetical use of the weapons and admonished the jury not to speculate as to what the answer might have been.

Given our precedent and the district court's limitation of the use of the evidence, the admission of expert testimony in this case was not manifestly erroneous.

Whether the District Court Erred in Admitting a Tape Recording Made Subsequent to the Charged Crime

Hernando objects to the introduction of a tape recording made on May 24, 1988, after the conduct of May 17, 1988, for which he was charged, occurred. He claims it improperly allowed evidence of uncharged misconduct and that the prejudicial value of this tape outweighs its probative value under Fed.R.Evid. 404(b).

Federal Rule of Evidence 404(b) authorizes the introduction of "other crimes" evidence to help establish a plan and knowledge of the crime, subject only to the relevancy requirement of Fed.R.Evid. 403. United States v. Miller, 688 F.2d 652, 659 (9th Cir. 1982). Application of Rule 403 is committed to the trial court's discretion, and is reviewed for an abuse of discretion. Id.

The tape recording demonstrates that Hernando and the informant met so that Hernando could be paid $2,000 as partial payment for the 966 grams of cocaine previously delivered and to discuss their continuing business relationship. Therefore, Rule 404(b) is not applicable insofar as this meeting related to the crime charged, not to "other crimes, wrongs, or acts." In any event, the tape is admissible under Rule 404(b) to prove that Hernando and the informant planned the transaction and that Hernando had knowledge of the crime for which he was charged. See id. at 659 ("because the 'other crimes' evidence ... stemmed from the same transaction that was in issue, the prejudicial effect of that evidence was less than that of 'other crimes' evidence that pertains to separate criminal transactions"). Consequently, we find no abuse of discretion.

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) and 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

 1

The testimony was as follows:

Q: (prosecutor): Now, sir, did you know about the activities of Mr. Hernando with [the informant] before the court today?

A: No, I did not, sir.

Q: And have you heard of any of those activities?

A: Well, I read the transcripts, but I--

Q: All right.

A: --knew nothing about them.

Q: And, sir, reading the transcripts and with your knowledge of his background, sir, does the new knowledge that you have change your opinion of his character at all?

A: Absolutely not.

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