Unpublished Disposition, 917 F.2d 29 (9th Cir. 1990)

MEMORANDUM^* 

A jury convicted Roman Magana-Olvera ("Magana") for conspiracy to distribute cocaine, use of a firearm during drug trafficking, and use of a juvenile to distribute cocaine. Magana's appeal raised numerous claims, most of which are addressed in a separate, published opinion.

We review in this memorandum three rulings by the district court. We affirm each.

* Magana first appeals the denial of his Rule 14 motion to sever Count Three of the indictment (use of a juvenile to distribute cocaine). However, because Magana neglected to renew his motion for severance after the government presented its case-in-chief, he has waived his right to appellate review. See United States v. Burgess, 791 F.2d 676, 678 (9th Cir. 1986); United States v. Guess, 745 F.2d 1286, 1289 (9th Cir. 1984), cert. denied, 469 U.S. 1225 (1985).

II

Magana next objects to the district court's admission of the testimony of his former cellmate, Michael Nelson. Nelson testified that he had heard Magana state that he knew people in Mexico that could "take care of," or "waste" Richard Zimmerle, who was expected to testify for the government. Magana contends that this testimony was unfairly prejudicial. See Fed.R.Evid. 403.

We review the admission of evidence under Rule 403 for a clear abuse of discretion. See Coursen v. A.H. Robins Co., 764 F.2d 1329, 1333 (9th Cir. 1985). Rule 403 permits the exclusion of relevant evidence where "its probative value is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403 (emphasis added). The choice of the term "substantially outweighed" in Rule 403 reflects a "basic policy favoring admissibility of relevant evidence." United States v. Hearst, 563 F.2d 1331, 1348-49 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978).

Although "threat" evidence tends to be inflammatory, it is also highly relevant to indicate consciousness of guilt. United States v. Castillo, 615 F.2d 878, 885 (9th Cir. 1980); United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976), cert. denied, 429 U.S. 1111 (1977). This relevancy not only adds to the probative value of the testimony, but minimizes the possibility that the prejudice would be unfair --that is, having "an undue tendency to suggest decision on an improper basis." Advisory Committee's Note to Rule 403, 56 F.R.D. 183, 218 (1972) (emphasis added). Thus, we conclude that the district court did not err in admitting Nelson's testimony.

III

Finally, Magana claims that the prosecutor's closing remarks referred to the defendant's refusal to take the stand.¹  He claims that this reference violated his fifth amendment right not to testify on his own behalf.

Generally speaking, we review a trial court's control of closing arguments for an abuse of discretion. However, because the issue here implicates a constitutional right, our review is de novo. See United States v. Schuler, 813 F.2d 978, 980 (9th Cir. 1987).

The fifth amendment requires the prosecutor to refrain from commenting on the defendant's decision not to testify. Griffin v. California, 380 U.S. 609, 615 (1965); accord United States v. Gray, 876 F.2d 1411, 1416 (9th Cir. 1989), cert. denied, 110 S. Ct. 2168 (1990). "A prosecutorial statement 'is impermissible if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.' " Id. (quoting Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987)); see also United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir. 1984). A comment on the failure of the defense, as opposed to the defendant, to counter or explain the government's evidence does not implicate the fifth amendment. United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1988).

Reversal is warranted only if it appears that the comment on the defendant's silence might have affected the jury's decision. United States v. Pruitt, 719 F.2d 975, 978 (9th Cir.) (per curiam), cert. denied, 464 U.S. 1012 (1983). Consequently, "courts will not reverse when the prosecutorial comment is a single, isolated incident, does not stress an inference of guilt from silence as a basis of conviction, and is followed by curative instructions." Lincoln, 807 F.2d at 809 (citing Soulard, 730 F.2d at 1307; United States v. Kennedy, 714 F.2d 968, 976 (9th Cir. 1983), cert. denied, 465 U.S. 1034 (1984)).

Magana's argument fails under this analysis for two reasons. First, we cannot say that the reference was to the defendant, rather than to the defense. See, e.g., Castillo, 866 F.2d at 1083. The jury could have taken the remark as a comment on the defense's failure to produce any alibi witnesses for the nights of November 3 and 10. Second, even if the remark necessarily referred to Magana's silence, it would not have risen to the level of reversible error. In the first place, it was an isolated incident. See Lincoln, 807 F.2d at 809. Moreover, the district court's cautionary instructions to the jury prevented any possible prejudice. See Soulard, 730 F.2d at 1307 (A district court's subsequent instruction prohibiting inferences of guilt from failure to testify is "sufficient to cure any prejudice [a criminal defendant] may have suffered from the allegedly impermissible comment.").

IV

For these reasons, the rulings of the district court addressed in this memorandum are AFFIRMED.