Unpublished Disposition, 907 F.2d 155 (9th Cir. 1990)

MEMORANDUM^* 

* A jury found appellants Issa Aqleh and Jihad Akleh guilty of one count of conspiracy to commit arson and mail fraud, one count of arson, and five counts of mail fraud. Aqleh appeals his conviction, arguing that the district court erred in (1) refusing to dismiss the first superseding indictment based on prosecutorial misconduct before the grand jury; (2) refusing to grant a mistrial or a new trial based on prosecutorial misconduct during trial; (3) allowing the prosecution to question witnesses about their grant of immunity; and (4) denying the motion for a new trial or acquittal based on insufficiency of the evidence.

Akleh appeals the district court's order denying his motion to remit the forfeiture of Aqleh's bail bond, for which he was surety.

We affirm in both cases.

II

The issue of whether the prosecution's conduct before the grand jury warrants dismissal of the indictment is a mixed question of law and fact, which the court reviews de novo. United States v. Spillone, 879 F.2d 514, 520 (9th Cir. 1989).

A district court's decision whether to grant a motion for a mistrial or a new trial is reviewed for abuse of discretion. United States v. Yarbrough, 852 F.2d 1522, 1538 (9th Cir.) (discussing motion for mistrial), cert. denied, 109 S. Ct. 171 (1988); United States v. Lopez, 803 F.2d 969, 977 (9th Cir. 1986) (discussing motion for new trial), cert. denied, 481 U.S. 1030 (1987).

In determining whether sufficient evidence supported the conviction, the court of appeals reviews the evidence in the light most favorable to the prosecution to find whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Palacios, 835 F.2d 230, 232 (9th Cir. 1987) (citing, inter alia, Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also United States v. Still, 850 F.2d 607, 608 (9th Cir. 1988), cert. denied, 109 S. Ct. 1330 (1989).

The court reviews a court's decision not to set aside a forfeiture of a bond posted for bail for abuse of discretion. United States v. Minor, 846 F.2d 1184, 1190 (9th Cir. 1988).

III

Aqleh claims the government knowingly presented Suhail Awadallah's perjured testimony to the grand jury, and that this misconduct required dismissal of the first superseding indictment.

"The grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process." United States v. Mechanik, 475 U.S. 66, 75 (1986) (O'Connor, J., concurring) (citing United States v. Johnson, 319 U.S. 503, 512-13 (1943)). To support a claim of prosecutorial misconduct, a defendant must show that "the government knows [the indictment] is based partially on perjured testimony." United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir. 1974). The testimony must be "knowing perjury relating to a material matter." United States v. Flake, 746 F.2d 535, 538 (9th Cir. 1984) (quoting United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 435 U.S. 944 (1978)), cert. denied, 469 U.S. 1225 (1985).

The prosecutor did not knowingly present perjured testimony. Although the prosecutor may have known that Awadallah's testimony as to the extent of his own involvement or the identity of those involved in the conspiracy conflicted with that of other witnesses, this fact did not necessarily lead to the conclusion that Awadallah was lying. Flake, 746 F.2d at 539.

Moreover, the allegedly false statements were not material to the issue of Aqleh's guilt or innocence or relevant to the determination of probable cause to charge Aqleh. The alleged falsities are only material to a determination of Awadallah's credibility, not Aqleh's guilt. See United States v. Spillone, 879 F.2d 514, 524 (9th Cir. 1989) (citing Flake, 746 F.2d at 539). Aqleh's indictment did not rest exclusively on Awadallah's testimony; the prosecution presented other evidence corroborating Aqleh's role in Awadallah's story. Presenting Awadallah's testimony to the grand jury was not prosecutorial misconduct.

IV

At trial, Aqleh moved for a mistrial based on the government's references in opening statement to witnesses' claims of the fifth amendment privilege and grants of immunity. He also moved for a new trial after the guilty verdict based on the prosecutor's further references to two witnesses' immunity agreements. Aqleh argues that the court erred in denying both motions because the references to the witnesses' fifth amendment rights and immunity agreements imputed guilt to the witnesses, and thereby implied that defendants were guilty as well.

The district court's denial of Aqleh's motions for a mistrial and a new trial was not an abuse of discretion. The government did not attempt to build its case out of inferences arising from the witnesses' use of the testimonial privilege. See Namet v. United States, 373 U.S. 179, 185-86 (1963). In its closing statement, the government suggested that Habash's and Barakat's testimony was less credible because it was given under a grant of immunity and therefore compelled. It did not use the immunity grants to infer guilt on the part of either the witnesses or the defendants. Moreover, it was attacking its own witnesses' credibility. Cf. United States v. Crouch, 528 F.2d 625, 632-33 (7th Cir.), cert. denied, 429 U.S. 900 (1976), cited in United States v. Peterson, 549 F.2d 654, 659 (9th Cir. 1977) ("The court held there was no prosecutorial misconduct when there was no evidence of an impermissible attempt to bolster the prosecution's case and when the witness was subject to cross-examination." (emphasis added)).

Even if the government's statements can be said to have added critical weight to the prosecution's case in a form not subject to cross-examination, the statements were "no more than minor lapses through a long trial." See Namet, 373 U.S. at 187. Even if the remark about Habash's fifth amendment rights was improper, neither it nor the prosecution's references to the immunity agreements in its closing prejudicially affected substantial rights of the defendant.

Furthermore, the trial court's instructions to the jury were sufficient to neutralize any undue weight the jury might have been prone to give the testimony and statements about the immunity agreements. See United States v. Shaw, 829 F.2d 714, 718 (9th Cir. 1987) (finding that the trial court's instructions rendered harmless prosecutor's remarks vouching for a witness' credibility), cert. denied, 485 U.S. 1022 (1988).

V

In addition to claiming that the prosecutor's comments about the witnesses' immunity agreements constituted misconduct, Aqleh argues that the court abused its discretion in overruling his objection to the testimony, because the testimony was more prejudicial than probative.

However, Aqleh's counsel did not object to the witness's testimony at trial; Akleh's counsel objected, and Aqleh did not join. "A ruling on the admissibility of evidence cannot be raised on appeal if no contemporaneous objection was made at trial unless plain error is shown. Plain error is shown if the evidence was inadmissible and its admission affected the outcome and his right to a fair trial." United States v. Houser, 804 F.2d 565, 570 (9th Cir. 1986) (citations omitted).

"Relevant evidence is not rendered inadmissible merely because it is prejudicial. Instead, evidence should be suppressed under Rule 403 only when it presents a danger of 'unfair prejudice.' " United States v. Booth, 669 F.2d 1231, 1240 (9th Cir. 1981). The witnesses' testimony about their immunity agreements was not misleading, inflammatory or prejudicial. It was relevant to the jury's determination of their credibility. The admission of this evidence did not prejudice Aqleh's right to a fair trial. Thus, the court's ruling was not "plain error," and Aqleh's counsel's failure to contemporaneously object forecloses this argument on appeal.

VI

Aqleh claims that Awadallah's testimony was inherently unbelievable, and that it was the only evidence implicating him in the conspiracy. He therefore argues that, as a matter of law, the evidence was not sufficient to convict him.

"The credibility of witnesses is a matter for the jury, not an appellate court." Lyda v. United States, 321 F.2d 788, 794 (9th Cir. 1963) (citing United States v. Verra, 301 F.2d 381 (2d Cir. 1962)). However, "there comes a point when the witness' qualifications are so shoddy that a verdict of acquittal should have been directed." Id. at 795. The standard is whether the testimony is "incredible or unsubstantial on its face." Id. (citing Haakinson v. United States, 238 F.2d 775, 779 (8th Cir. 1956); see also United States v. Tertrou, 742 F.2d 538, 541 (9th Cir. 1984). The fact that the witness is a participant or accomplice does not necessarily make the witness' testimony incredible. United States v. Vaccaro, 816 F.2d 443, 454 (9th Cir.), cert. denied, 484 U.S. 914 (9th Cir. 1987).

Aqleh argues that Awadallah's testimony is inherently incredible because it "contradicts the laws of human nature." However, the standard for overriding a jury's determination of credibility is so high that we rarely overturn jury verdicts on these grounds. See, e.g., Tertrou, 742 F.2d at 541; United States v. Shelton, 588 F.2d 1242, 1245 (9th Cir. 1978), cert. denied, 442 U.S. 909 (1979); United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977); United States v. Hibler, 463 F.2d 455, 456 (9th Cir. 1972); Darden v. United States, 405 F.2d 1054, 1056 (9th Cir. 1969); Moody v. United States, 376 F.2d 525, 528 (9th Cir. 1967); Lyda, 321 F.2d at 793-95.

The "unbelievability" Aqleh points to goes to Awadallah's credibility as a witness, not the inherent impossibility that the facts occurred as he testified that they did. Moreover, the government offered evidence corroborating Awadallah's testimony. Defense counsel extensively cross-examined Awadallah, and attacked his credibility in closing argument. The court specifically instructed the jury that the testimony of an informer must be examined with greater care than that of an ordinary witness.

Given the fact that the jury had before it Awadallah's testimony, corroborating testimony, attacks on Awadallah's credibility, and the trial court's appropriate instructions, the testimony was not inherently unbelievable so as to justify overturning the jury verdict on appeal.

VII

Akleh, who acted as surety for Aqleh's bail, appeals the court's failure to remit the forfeiture of the bond. The district court has wide discretion in making the decision of whether to grant relief from forfeiture. United States v. Abernathy, 757 F.2d 1012, 1015 (9th Cir.) (citing United States v. Stanley, 601 F.2d 380, 382 (9th Cir. 1979)), cert. denied, 474 U.S. 854 (1985).

In exercising its discretion, the court may consider:

the willfulness of defendant's breach, any explanation or mitigating circumstances, whether the sureties were professionals or defendant's friends and family members, the participation of the sureties in apprehending defendant, the appropriateness of the bond amount, and the cost, inconvenience or prejudice to the government.

United States v. Minor, 846 F.2d 1184, 1190 (9th Cir. 1988) (citing United States v. Frias-Ramirez, 670 F.2d 849, 852 (9th Cir.), cert. denied, 459 U.S. 842 (1982)).

Aqleh's violation was willful, and neither he nor Akleh have offered any explanation for it. Furthermore, the court recognized that the amount of the bond was relatively low. The government's declaration stated that agents spent eighty hours attempting to apprehend Aqleh, and an additional forty hours dealing with Aqleh after his surrender. In addition, the proceedings were delayed several months because of Aqleh's disappearance.

The court's oral order shows that it fully considered the relevant factors in exercising its "wide discretion." Minor, 846 F.2d at 1190; Abernathy, 757 F.2d at 1015. Even though several of the relevant considerations supported Akleh's claim, the record shows that the district court's considered decision was not an abuse of discretion.

AFFIRMED.