Unpublished Disposition, 917 F.2d 1307 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 917 F.2d 1307 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Sara BELLOC, Defendant-Appellant.

Nos. 89-10526, 89-10527.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1990.* Decided Nov. 9, 1990.

Before ALARCON, BRUNETTI and KOZINSKI, Circuit Judges.


MEMORANDUM** 

Appellant Sara Belloc ("Belloc") appeals her conviction, following a jury trial, for possession with intent to distribute marijuana, conspiracy with intent to distribute marijuana, use of a telephone facility to facilitate a controlled substance transaction, and interstate travel in aid of racketeering enterprise. We affirm on all grounds.

Belloc was indicted in the District of New Mexico for violation of 21 U.S.C. § 841(a) (1) (West 1981) (possession with intent to distribute marijuana). In January 1989, a grand jury in the District of Arizona indicted Belloc for violation of 21 U.S.C. § 846 (West 1981) (conspiracy to possess with intent to distribute marijuana), 18 U.S.C. § 1952 (West 1984 and Supp.1990) (interstate travel in aid of racketeering enterprise), and 21 U.S.C. § 843(b) (West 1981) (use of a telephone facility to facilitate a controlled substance transaction).

The two indictments were joined in the District of Arizona for trial. The jury convicted Belloc on all counts. The district court sentenced Belloc on October 10, 1989.

A district court's formulation of jury instructions is reviewed for an abuse of discretion. United States v. Linn, 880 F.2d 209, 217 (9th Cir. 1989).

At trial, Belloc objected to the propriety of the instruction that a defendant may be liable for a substantive offense committed by a co-conspirator in furtherance of the conspiracy. See United States v. Pinkerton, 328 U.S. 640 (1946). The instruction given by the court accurately stated the law of this circuit. See United States v. Crespo de Llano, 838 F.2d 1006, 1019 (9th Cir. 1987) (defendant properly held responsible for possession of cocaine by co-conspirator, even when defendant never exercised control over cocaine).

Belloc also argues that the district court erred in refusing to give a proposed aiding and abetting instruction. The cases in this circuit have been split as to the proper standard for reviewing a district court's denial of a proposed instruction. See United States v. Sotelo-Rivera, 906 F.2d 1324, 1327 (9th Cir. 1990); United States v. Whitehead, 896 F.2d 432, 434 (9th Cir. 1990).

This case need not turn on the proper standard for reviewing the district court's refusal to give Belloc's proposed instruction on aiding and abetting, as even applying a de novo standard, the district court did not err in refusing to give Belloc's proposed instruction. The record did not provide a basis for such an instruction, as Belloc performed no act that assisted in the actual transfer of the marijuana.

A district court's decision regarding the scope of cross-examination is reviewed for an abuse of discretion. United States v. Bonanno, 852 F.2d 434, 439 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989).

The district court properly refused to permit Belloc to cross-examine the government's cooperating witness, John Carl Stringland ("Stringland"), regarding Stringland's alleged beating and kidnapping of his own son, and of Stringland's desire to have his son born in Mexico so Stringland could purchase property in Mexico on which to raise marijuana. None of these proposed lines of questioning would have been probative of the witness' credibility, see F.R.E. 608(b), and would have violated F.R.E. 611(a) (3), which directs judges to "protect witnesses from harassment or undue embarrassment."

The district court properly granted a motion in limine to preclude questioning Stringland concerning possible punishment for certain uncharged crimes. The court allowed cross-examination as to a guilty plea in Missouri and any possible benefit Stringland might receive from his cooperation in the instant case. Stringland testified that no other promises or representations had been made to him regarding other crimes, including those at issue in the case at trial. Therefore, the motion in limine was a proper exercise of the district court's discretionary power.

Belloc moved for a mistrial when, at the end of his rebuttal argument, the prosecutor made a brief reference to the court's discretionary sentencing powers.1  The district court denied the motion.

A district court's denial of a motion for mistrial is reviewed for an abuse of discretion. United States v. Yarbrough, 852 F.2d 1522, 1538 (9th Cir.), cert. denied, 488 U.S. 866 (1988). A claim of prosecutorial misconduct is viewed in the entire context of the trial. United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir. 1987).

Viewed in this context, and considering the weight of the evidence, it is unlikely that the prosecutor's statement materially affected the verdict. Thus, even if the prosecutor's statement was improper, any error was harmless.

When reviewing the sufficiency of the evidence to support a criminal conviction, the appropriate standard of review is whether, in viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Pisello, 877 F.2d 762, 764 (9th Cir. 1989).

Belloc argues that her convictions under 21 U.S.C. § 843(b) and 18 U.S.C. § 1952 must be reversed, because the government's cooperating witness "manufactured" the interstate activity that was a necessary element of the crimes. In this case, neither the actions of the government nor its cooperating witness created the illegal activity in which Belloc and her co-conspirators were involved. The activities between the time the government witness was arrested and began cooperating, and the time Belloc was arrested were simply a part of the continuing illegal enterprise in which Belloc had been involved for some time.

The judgment of the district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 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 Circuit Rule 36-3

 1

The prosecutor stated: "The court performs its function. If in fact you do find the government has proven these charges beyond a reasonable doubt, the Court can consider other factors; employment over 17 years with the Eloy school system...." [TR vol. 7, p. 55]