Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1989)

MEMORANDUM^** 

To obtain a reversal based on the district court's failure to grant a continuance, the defendant "must show at a minimum that he has suffered prejudice" as a result. United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.), amended in part not relevant here, 764 F.2d 675 (9th Cir. 1985). Melton has not made such a showing. He was permitted to interview the confidential informant on the day of trial and the witness had nothing exculpatory to offer him; counsel offers no reason why the informant would have had anything exculpatory to offer had he been interviewed earlier. Nor did counsel need to investigate the informant's character to impeach his credibility: The informant never testified. No harm, no foul.

B. Prosecution's failure to comply with the discovery order

To warrant reversal, a discovery error must demonstrably result in prejudice to substantial rights. United States v. Michaels, 796 F.2d 1112, 1115 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987). Defendant has failed to show how the prosecution's failure to produce the informant until the day of trial prejudiced him. Defendant's claim that he was unable to "analyze ... potential testimony" or "develop any important evidence related to his status as an informant," Appellant's Response Brief at 4, doesn't even come close. It utterly fails to inform us what evidence the defendant would have uncovered or presented had the informant been produced according to the order.

It was not clearly erroneous for the district court to exclude Agent Johnson's report as hearsay. The report could not qualify as a prior inconsistent statement under Fed.R.Evid. 801(d) (1) (A) because it was not inconsistent with Johnson's testimony at trial; it was merely ambiguous. Even had it been error for the court to exclude it, the error would have been harmless. The statement went to the jury when the court permitted defendant to impeach Johnson with it. It is highly unlikely that the outcome of this case would have been different had the jury received the statement in documentary form rather than as testimony.

Inasmuch as defendant's motion for a new trial was merely a post-verdict reiteration of the above arguments--all of which we reject--the district court did not err in denying it.

Defendant claims that he was denied procedural due process when the district court failed to conduct a hearing on his motion to dismiss the indictment under the Speedy Trial Act, 18 U.S.C. § 3161. However, he doesn't tell us what he could have shown at a hearing that would have made a difference. Because defendant offers us no reason to believe a hearing was necessary, he has failed to show that the court's failure to conduct one violated due process.

Under the Sentencing Guidelines "the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." Sentencing Guideline Sec. 2D1.1(c) n.*; see United States v. Hoyt, 879 F.2d 505, 512 (9th Cir.) (upholding the approach against an equal protection challenge), amended in part not relevant here, 888 F.2d 1257 (9th Cir. 1989). Accordingly, the district court did not err by basing defendant's sentence on 1.9 grams of cocaine base even though it was only 43% pure.

Nor did the court err in setting defendant's base offense level. The jury convicted defendant of distributing cocaine base, not cocaine. See Jury Verdict, May 3, 1989, ER 4, at 54. The base offense level for 1.9 grams of cocaine base is 18. Sentencing Guideline Sec. 2D1.1(c) (13).

AFFIRMED.