Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1990)

MEMORANDUM^** 

Luene B. Curry ("Curry") appeals his conviction for conspiracy to distribute cocaine, four counts of distribution of cocaine, and one count of possession of cocaine with intent to distribute. Curry contends he did not knowingly waive his right to a trial by jury, that his 1988 superseding indictment was insufficient, that the evidence against him was insufficient for a conviction, that his agreement to consolidate and waive his right to a speedy trial was invalid, that he was convicted by perjured testimony, and that his trial counsel was ineffective. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

ANALYSIS

In open court, Curry stated that he had consulted with his attorney regarding the waiver of his right to a trial by jury. The court then conducted a colloquy by which Curry was informed that he was entitled to trial by a jury of twelve persons drawn from the community, that the jurors would be selected and subjected to voir dire examination in which both Curry and his attorney could participate, that Curry and his attorney had the right to make peremptory challenges, that in a bench trial the judge would make the determination of either guilt or innocence, and that if Curry were convicted the judge would decide what sentence to impose. Curry then stated that he wanted to waive his right to trial by jury. Curry also executed a written waiver in the presence of the court. The waiver was accepted by the court and consented to by the government in compliance with Fed. R. Crim. P. 23(a). Curry was then tried by the court and convicted.

Curry asks us to adopt a mandatory supervisory rule requiring trial courts to conduct an in depth examination of a defendant to assure that the waiver of a jury trial is voluntary, knowing and intelligent. Specifically, Curry contends that in this examination the court should make sure that a defendant who waives trial by jury is aware of the requirement of jury unanimity in a criminal case. We decline to adopt such a rule.

A criminal defendant's right to a jury trial is fundamental. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). However, a defendant may waive this right if four requirements are satisfied: (1) the waiver is in writing, (2) the government consents, (3) the trial court accepts the waiver, and (4) the waiver is made voluntarily, knowingly and intelligently. Patton v. United States, 281 U.S. 276, 312-13 (1930). The first three of these requirements are embodied in Fed. R. Crim. P. 23(a).¹  When a jury waiver is made in compliance with Rule 23(a), it is presumed that the jury waiver is voluntary, knowing and intelligent. United States v. Goodwin, 446 F.2d 894, 895 (9th Cir. 1971) (per curiam).

Here, the requirements of Rule 23(a) were met. Therefore, there is a presumption that Curry's waiver was voluntary, knowing and intelligent. In addition, the record reflects an inquiry by the court of Curry to ascertain that Curry voluntarily, knowingly and intelligently waived his right to a jury trial. Curry argues, however, that the court did not specifically inform Curry of the jury unanimity requirement, and thus Curry's jury waiver was not voluntarily, knowingly and intelligently made.

In this circuit we do not require district courts to inquire of a defendant on the record to establish that a jury waiver is voluntary, knowing and intelligent. United States v. Cochran, 770 F.2d 850, 853 (9th Cir. 1985). Since a trial court need not engage in a colloquy of this type, we will not impose on the trial court a requirement to make the specific inquiry for which Curry contends.² 

Curry contends that the 1988 superseding indictment was not sufficiently specific to inform him of the charges against him.

An indictment is sufficient if it states the elements of the offense charged with sufficient clarity to apprise a defendant of the charge against him, primarily so that he can defend himself against the charge and plead double jeopardy in appropriate cases. United States v. Givens, 767 F.2d 574 (9th Cir.), cert. denied, 474 U.S. 953 (1985). To ascertain whether an indictment adequately performs this function, we have held that an indictment must "be read in its entirety" and "be construed according to common sense." United States v. Drew, 722 F.2d 551, 552 (9th Cir. 1983), cert. denied, 467 U.S. 1216 (1984); see also Hamling v. United States, 418 U.S. 87, 117-18 (1974). " 'An indictment under 21 U.S.C. § 846 is sufficient if it alleges: a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege or prove any specific overt act in furtherance of the conspiracy.' " United States v. McCown, 711 F.2d 1441 (9th Cir. 1983) (quoting United States v. Tavelman, 650 F.2d 1133, 1137 (9th Cir. 1981), cert. denied, 455 U.S. 939 (1982)). Curry's indictment sufficiently alleges a conspiracy to distribute cocaine, a specific and narrow time frame of the conspiracy, the name of the coconspirator, the common intent of the scheme, and the statute allegedly violated. Similarly, Counts II, III and IV sufficiently allege the elements of the statutes violated. Therefore, the indictment adequately apprised Curry of the charges against him.

Curry contends that there is insufficient evidence to uphold his conviction because (1) the court relied on inadmissible hearsay, and (2) the court relied on conflicting testimony. In determining the sufficiency of the evidence, the appropriate standard of review is whether "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Clevenger, 733 F.2d 1356 (9th Cir. 1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Curry contends that the testimony of William H. Bryant regarding what an unknown person told him was inadmissible hearsay. The statement made was " [g]ive this to Mr. Curry." This statement is not hearsay because it is not offered to prove the truth of the matter asserted. 28 U.S.C. § 801(c). If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay. United States v. Gibson, 690 F.2d 697, 700-01 (9th Cir. 1982), cert. denied, 460 U.S. 1046 (1983).

Curry further contends that there is insufficient evidence to support his conviction because witnesses testifying against him gave conflicting testimony. Issues of credibility, however, are for the trier of fact to resolve. Milgard Tempering, Inc. v. Selas Corp. of America, No. 87-4087, slip op. at 3401, 3420 (9th Cir. Apr. 24, 1990). The trial judge, as the trier of fact, observed the demeanor of the witnesses, listened as the witnesses were cross-examined, and considered the testimony of several witnesses. From this testimony, a rational trier of fact could have found Curry guilty beyond a reasonable doubt of the crimes of which he was convicted. Therefore, the evidence is sufficient to uphold his conviction.

E. Agreement to Consolidate and Waiver of Speedy Trial

Curry contends that his conviction should be reversed under the Speedy Trial Act because there was only an eighteen-day period between his first appearance on the superseding indictment and his trial. The Speedy Trial Act requires that a trial shall not commence less than thirty days from the date on which the defendant first appears, unless there is a writing to the contrary. 18 U.S.C. § 3161(c) (2). Curry consented in writing to waive his right to a speedy trial. Therefore, the requirements of the Speedy Trial Act were met.

Additionally, Curry argues that the trial court erred in failing to determine whether Curry understood the consequences of his waiver to have charges against him tried separately. This argument is meritless. Curry requested that the charges be consolidated. Offenses may be joined in the same indictment and tried together when they are "based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R. of Crim.P. 8(a); United States v. Kaplan, 895 F.2d 618, 621 (9th Cir. 1990). Curry's indictments were sufficiently connected to make consolidation proper even in the absence of his consent.

F. Alleged Perjury by Informant and Undercover Agent

Curry contends that informant Agnes Williams ("Williams") committed perjury when she testified that she did not use any of the $2,600 she received from the government to purchase cocaine. There is no evidence to support Curry's bald assertion that Williams did in fact use government funds to purchase drugs. Furthermore, a new trial is only required if "the false testimony could ... in any reasonable likelihood have affected the judgment of the jury...." Napue v. Illinois, 360 U.S. 264 (1959). Even if Williams had perjured herself regarding the use of government funds to purchase drugs, this testimony was not material to Curry's conviction.

Curry further argues that Federal Bureau of Investigation agent Hilldorfer's testimony was inconsistent. Agent Hilldorfer's testimony can be construed as consistent and thus is at best ambiguous. The question of whether the camera was working or working clearly is a matter of semantics and does not constitute perjured testimony. See U.S. v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1987). Even assuming that agent Hilldorfer perjured himself, a new trial is unwarranted because his statements regarding whether the audio equipment was operating did not affect the outcome of the trial.

Curry argues that he received ineffective assistance of counsel. Whether a defendant received ineffective assistance of counsel is a question of law reviewed de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492-93 (9th Cir. 1985) (citing Strickland v. Washington, 446 U.S. 668, 698 (1984)). Review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation. United States v. Hamilton, 792 F.2d 837, 839 (9th Cir. 1985) (quoting Strickland, 442 U.S. at 689).

There is a two-part test to evaluate claims of ineffective assistance of counsel. First, the "defendant must show that the counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Second, counsel's error must have prejudiced the defendant. Id. at 692.

Curry contends that because his counsel did not produce cases, conduct adequate discovery, object to certain evidence, adequately cross-examine a witness, and call witnesses on behalf of Curry, the trial counsel was ineffective. However, mere criticism of trial tactics is not sufficient to support a charge of ineffective representation of counsel. United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.), cert. denied, 474 U.S. 979 (1985) (quoting Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980)). The conduct and trial strategy of Curry's defense counsel fell within the wide range of reasonable professional representation. Moreover, Curry does not demonstrate that he was prejudiced as a result of his attorney's trial conduct. The evidence against Curry was overwhelming; there is no reasonable probability that the outcome of the trial would have been different but for the purported inadequate representation by his trial counsel.

If Curry wishes to introduce facts beyond the record regarding the adequacy and propriety of his defense counsel's representation, these allegations should be set forth in a motion pursuant to 28 U.S.C. § 2255. United States v. Lutz, 621 F.2d 940, 948 (9th Cir. 1980). In a section 2255 proceeding, a defendant may present new facts. United States v. Johnson, 820 F.2d 1065 (9th Cir. 1987). From the record before us on this direct appeal, there is no evidence that Curry was prejudiced by ineffective assistance of counsel.

AFFIRMED.