Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

MEMORANDUM

Tate appeals from her conviction, following a jury trial, for aiding and abetting in the distribution of cocaine base within 1,000 feet of a school, and possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a) (1) and 845(a), and 18 U.S.C. § 2. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Tate argues that there was insufficient evidence to support the convictions. There is sufficient evidence if, 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. Adler, 879 F.2d 491, 495 (9th Cir. 1988) (citation omitted).

For the jury to find that Tate aided and abetted Hunt in the distribution, the government must prove beyond a reasonable doubt that Tate associated herself with the venture, participated in it as in something that she wished to bring about, and sought by her action to make it succeed. United States v. Batimana, 623 F.2d 1366, 1370 (9th Cir.), cert. denied, 449 U.S. 1038 (1980). Overwhelming evidence was introduced from which a reasonable jury could properly find that Tate was a significant and intentional participant in the drug transaction. Tate instructed the buyer to get out of the car, stating "this ain't no self-service here." Tate then asked how much the buyer wanted to purchase and communicated the amount to Hunt. It is clear that Tate negotiated with a prospective buyer and otherwise assisted in the sale of the illegal drug.

Tate argues that there was insufficient evidence to support a finding on the "possession" element of the "possession with the intent to distribute" charge. To satisfy that element, a jury must find either actual or constructive possession. A jury can find constructive possession where a defendant has "dominion and control ... so as to give power of disposal of the drug." Id. at 1369 (citation omitted); see also United States v. Terry, No. 89-10121, slip op. 13843, 13856-57 (9th Cir. Nov. 9, 1990) (Terry). Here, Tate did not have actual possession of the drugs. However, Tate negotiated the transaction and manifested some control over the distribution of the drug when she instructed Hunt to give the buyer "a twenty" (twenty dollar bag of rock cocaine). The twenty dollar bill used to make the purchase was found in Tate's possession. We hold that "under the highly deferential standard of review there was sufficient evidence to sustain the verdict." Terry, slip op. at 13857.

Tate also argues that her due process rights were violated by "prosecutorial vouching" during the rebuttal argument. "Prosecutorial vouching may occur when the prosecutor either (1) 'place [s] the prestige of the government behind the witness' through personal assurances of the witness's veracity, or (2) suggests that 'information not presented to the jury supports the witness's testimony.' " United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir. 1988) (citation omitted).

The allegations here concern statements in which the prosecutor hypothesized as to what Hunt might say in his defense if called as a witness. The prosecutor first speculated that Hunt would deny direct involvement in the drug transaction, and instead place all of the blame on Tate. The prosecutor then undercut Hunt's hypothetical "responses" in order to demonstrate that Hunt's "claims" lacked credibility.

The parties disagree as to when and to which comments Tate objected to at trial. However, we affirm under either the "harmless error" or "plain error" standard.

The overall purpose of the prosecutor's statements was to demonstrate the incredibility of Tate's claim that she was not working with Hunt. The prosecutor did not "vouch" for Hunt or any other witness's credibility. See id.

Even if the prosecutor's argument may have suggested he knew something more about Hunt's role, any error would be harmless. We take into consideration the assessment of the district judge who denied Tate's motions for mistrial and for new trial. See United States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986). " [T]rial judges are generally better situated to evaluate the effect of any misconduct." Id. Here, there was overwhelming evidence from which a reasonable jury could find that Tate committed the alleged crimes. Further, the district court twice instructed the jury on the limited significance of the closing arguments. In light of all the evidence, we hold that Tate was not prejudiced by any prosecutor misconduct.

AFFIRMED.