Unpublished Disposition, 927 F.2d 610 (9th Cir. 1988)

Nos. 88-3251, 88-3256, 88-3278 and 88-3292.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Western District of Washington; No. CR 88-92C, John C. Coughenour, District Judge, Presiding.

W.D.Wash, 914 F.2d 1497.

AFFIRMED.

Before JAMES R. BROWNING and FLETCHER, Circuit Judges, and REED,^*  District Judge.

AMENDED MEMORANDUM^** 

Ramon Alvarado-Guzman, Wayne Campbell, Charles DeCoster, and Gonzolo Gonzales appeal convictions on cocaine charges. Each was convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Guzman, Campbell, and Gonzales were also convicted of possession with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841. The conspiracy involved transporting drugs from southern California to the Seattle area.

1. Equal Protection and Due Process Clauses.

Guzman asserts that the minimum mandatory sentencing provisions of 21 U.S.C. § 841(b) (1) (A) violate his fifth amendment rights to due process and equal protection. He bases his claim on two arguments: (1) because of differences in purity of the drug, weight of the substance is not a fair indicator of quantity; and (2) mandatory minimum sentences unconstitutionally disregard the offender's role in the conspiracy.

Because the cocaine in Guzman's case was of a high level of purity (78-85%), he does not have standing to claim unconstitutionality based on his first premise. United States v. Zavala-Serra, 853 F.2d 1512, 1517-18 (9th Cir. 1988); United States v. Kidder, 869 F.2d 1329, 1335 (9th Cir. 1989) (no standing when purity was 86%).

Section 841(b) (1) (A)'s mandatory minimum sentence provisions do not violate the equal protection or due process clauses, regardless of the defendant's role in the conspiracy. They are "rationally related to the strong governmental interest in the deterrence of drug abuse and drug trafficking," and courts retain discretion under the provisions to individualize sentences within the guidelines above the minimum. United States v. Kinsey, 843 F.2d 383, 394 (9th Cir. 1988); see also United States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988) (section 841(b) (1) (A) does not violate the due process and equal protection clauses regardless of the offender's role).

2. Eighth Amendment.

Guzman asserts that the sentencing provisions in Sec. 841(b) (1) (A) constitute cruel and unusual punishment under the eighth amendment because they are disproportionate to the crime. We have held otherwise. Kinsey, 843 F.2d at 392-93.

Guzman alleges that the trial court erred in giving a Jewell instruction¹  on deliberate avoidance. The construction given closely tracks Ninth Circuit Model Instruction 5.09. The court instructed,

You may find that a particular defendant acted knowingly if you find beyond a reasonable doubt that that defendant was aware of a high probability that drugs were placed in the blue and white Chevrolet and deliberately avoided learning the truth.

You may not find such knowledge, however, if you find that that defendant actually believed that no drugs were in the car, or if you find that that defendant was simply careless.

Whether or not this jury instruction should have been given over Guzman's objection is reviewed de novo. United States v. Stenberg, 803 F.2d 422, 433 (9th Cir. 1986).

A Jewell instruction is proper only when the defendant claims "lack of guilty knowledge and the proof at trial supports an inference of deliberate ignorance." United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1988); United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir. 1985). The trial court rarely should give the instruction because of the risk that the jury will convict for negligence: "that the defendant should have known the conduct was illegal" is not a basis for giving the instruction. Alvarado, 838 F.2d at 314. It should only be given if there is evidence that the defendant "purposely contrived to avoid learning all the facts in order to have a defense in the event he was arrested and charged." United States v. Beckett, 724 F.2d 855, 856 (9th Cir. 1984).

If giving the instruction was error, however, it was harmless.²  First, the instructions as a whole informed the jury that they could not convict Guzman without finding that he had the requisite mental state. Instruction 13 read, "An act is done knowingly if the defendant realized what he or she was doing and did not act through ignorance, mistake, or accident. You may consider all the evidence of the defendant's acts and words, along with all the other evidence, in deciding whether the defendant acted knowingly." In addition, the last paragraph of the Jewell instruction, quoted above, told the jury that they could not convict Guzman if he succeeded in convincing them that he believed no drugs were in the car.

Second, the issue at trial regarding Guzman's knowledge of the conspiracy objective was framed as knowledge versus lack of knowledge, not deliberate avoidance. The prosecutor did not argue that Guzman had deliberately avoided learning that drugs were in the car in the closing argument. She argued that Guzman knew drugs were in the car, despite his protestations.

Finally, the evidence adduced at trial indicated that Guzman knew precisely what was going on when he drove to Seattle and delivered the contraband. The government informant testified that Guzman had delivered cocaine to her twice before. Guzman's language referring to the contraband was more consistent with drugs than stolen jewelry, which he claimed he believed he was delivering. It was shown that Guzman was the only one involved in the delivery who knew the complicated process for getting the contraband out of the automobile's secret compartment and that Guzman had received specific instructions from Gonzales to collect money from the government informant/purchaser for "three" before delivering the seven kilograms.

Viewing the instructions and the proof at trial as a whole, any error in giving the Jewell instruction was harmless beyond a reasonable doubt.

Guzman asserts that the trial court erred in ruling that evidence of Guzman's prior burglary conviction was admissible to impeach him under Fed.R.Evid. 609(a). Because Guzman himself introduced the bad acts evidence, even though he did so to blunt the evidence's expected impact on the jury if the prosecution introduced it, he cannot claim error. Shorter v. United States, 412 F.2d 428, 431 (9th Cir. 1969).

Cambell argues that the trial court erred in admitting the contents of a briefcase (money and a hotel receipt) seized at the Seattle airport in an incident separate from the current criminal action. He also objects to the admission of statements, made during the airport stop, to impeach him. We review for abuse of discretion.

In the prior civil forfeiture proceeding regarding the briefcase contents, the court found all of Campbell's statements voluntary except one about the hotel receipt. Those statements were therefore admissible. In addition, much evidence had been introduced before Campbell testified that DEA agents had seized the cash from Campbell. The hotel receipt statement and the briefcase contents were therefore cumulative. Their admission, if error, was harmless beyond a reasonable doubt.

We find meritless the claim of Campbell's counsel that he was ineffective.

DeCoster contends that the trial judge erred in denying his post-trial motion for judgment of acquittal. In reviewing the verdict against him, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987).

DeCoster was convicted only on the conspiracy charge. Once a conspiracy is established beyond a reasonable doubt, only a slight connection to the conspiracy by the defendant is necessary to convict, United States v. Meyers, 847 F.2d 1408, 1413 (9th Cir. 1988); United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987); but the defendant must know of the connection, Meyers, 847 F.2d at 1413.

DeCoster claims that the government never proved that DeCoster agreed to effectuate the charged conspiracy's criminal design and asserts that United States v. Bailey, 607 F.2d 237 (9th Cir. 1979), requires his acquittal. In Bailey, the court reversed defendant Moss's conviction, holding that proof only that he was a purchaser from a conspiracy whose members were suppliers and retailers did not make him part of the conspiracy.

Here, DeCoster's necessary "slight" connection to the conspiracy was established. The evidence showed that he was more than a purchaser. He bought large quantities of cocaine, and he collected substantial sums of money from its sale. He discussed finding a buyer for cocaine with the government informant early in 1987. DeCoster knew there were other members of the conspiracy even though he did not know their identities. A rational jury could find that his apparent activity as one of the bottom rung distributors made him a part of this conspiracy. The trial court did not err in denying his motion for acquittal.

Gonzales did not object to the jury instructions at trial, and so we review them as to him for plain error. United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989). Plain error should be found only in exceptional circumstances. Id. The instructions must be considered as a whole to see if they are "misleading or inadequate." United States v. Spillone, 879 F.2d 514, 525 (9th Cir. 1989).

1. Reasonable doubt.

Gonzales alleges error in the trial court's formulation of the reasonable doubt instruction. The instruction read, in relevant part,

A reasonable doubt is a doubt based on reason and common sense. This means that you must return a not guilty verdict if, after you have considered all the evidence in this case, you have a doubt based on reason and common sense that the government has proved the defendants' guilt. You may not convict on the basis of a mere suspicion. On the other hand, the government is not required to prove guilt beyond all possible doubt. You should return a guilty verdict if, but only if, you find the evidence so convincing that an ordinary person would be willing to make the most important decisions in his or her own life on the basis of such evidence.

The instruction examined as a whole, and especially the last line, communicates the widely accepted requirement that a jury member be sure of her or his verdict and not have doubt. There is no plain error here that would cause a reasonable person to hesitate to act.

a. Mens rea instruction.

The trial judge did not use the language on mens rea contained in Ninth Circuit Model Jury Instruction 5.01A on conspiracy: " [Y]ou must find that this defendant joined the conspiracy and did so knowing of the unlawful plan and intending to help carry it out." Gonzales alleges this as error.

Mens rea is an essential element of conspiracy. United States v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987). Instructions must require the jury "to find all of the elements of the crime" charged. United States v. Mastelotto, 717 F.2d 1238, 1248 (9th Cir. 1983). The conspiracy mens rea instruction protects defendants from being convicted for joining a conspiracy inadvertently: a late joiner may well not know the existing plan had an unlawful objective; a peripheral player might know of the unlawful plan, but not intend it to be carried out. The jury should be so instructed.

However, the jury, based on the evidence in this case, could not have found that Gonzales was a member of the conspiracy, which the court's instructions explicitly required for conviction, without also concluding that he knew the conspiracy's unlawful objective and intended that it be carried out. Under the court's instructions, the jury had to find "an agreement of two or more people to do something unlawful," "that there was an agreement to distribute cocaine starting sometime before August 1986," and "that there was a joint plan to distribute cocaine." Given Gonzales's founding, pervasive, and central role in the conspiracy, there is no possibility the jury could have found that he "joined" the conspiracy without the requisite mens rea. This is not a case where the conspiracy's goal is arguably lawful or where Gonzales's participation could have been inadvertent. The evidence showed Gonzales was the pivotal participant: he was the wholesale supplier; he "fronted" the cocaine, arranged transportation, and collected payments. Given this central role, no jury could have found an "agreement" or "joint plan" to distribute cocaine without finding Gonzales to have agreed and planned--both states of mind which meet the mens rea required.

While there was error in the conspiracy instruction, it did not prejudice Gonzales when we consider the instructions as a whole. See, e.g., Willard v. California, 812 F.2d 461, 464 (9th Cir. 1987) (harmless error where instructions failed to mention specific intent element of offense but defendant did not raise lack of intent as defense). " [R]eversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." United States v. Still, 857 F.2d 671, 671 (9th Cir. 1988) (quoting United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986)). No miscarriage of justice has occurred here, and reversing Gonzales's conviction would do nothing to preserve the integrity and reputation of the judicial process.

b. Variance between indictment and instructions.

Gonzales alleges that a variance between dates in the indictment and in the instructions is reversible error because the jury could convict of a conspiracy not charged in the indictment. The indictment, read in Instruction 4, described the conspiracy as beginning "at least as early as August 1986," continuing until March 12, 1988. Instruction 6 states that the conspiracy started "sometime before August 1986," continuing until March 12, 1988. The jury asked about the discrepancy during their deliberations. Gonzales did not object to the instruction. In fact, he specifically requested that the instructions remain "as is" and objected to the court giving a supplemental instruction to conform the instruction to the indictment date, as originally intended. Clerk's Record Doc. No. 306, Reporter's Transcript, July 29, 1988, at 4. At the request of counsel for all defendants, the court responded to the jury's query that they were to follow the instructions as given.

Gonzales charges that Instruction 6 permits the jury to convict upon finding a conspiracy pre-dating August 1986 but that the indictment did not charge such a conspiracy. The indictment, however, charges a conspiracy beginning "at least as early as August 1986," which includes a conspiracy beginning before August 1986. We find no plain error.

c. Right to unanimous jury verdict.

Gonzales alleges that the date discrepancy prejudiced his substantial right to a unanimous jury verdict under Art. III, Sec. 2 and the sixth amendment of the Constitution. The proof, however, did not vary from the indictment; the jury could have found only one conspiracy. This is not plain error.

3. Aiding and abetting.

Gonzales alleges that language in the instruction on aiding and abetting permits the jury to convict on a noncharged offense. The instruction mistakenly identifies the underlying offense as the distribution of cocaine rather than possession with intent to distribute cocaine. In light of all of the jury instructions, which contain several accurate references to the underlying offense, this was not plain error.

Gonzales also argues that the instruction varied from the indictment by referring to unnamed "others" in addition to Campbell and Guzman as principals. The indictment named specific codefendants and did not refer to unnamed "others." In light of the instructions as a whole and the proof at trial, the jury would not have understood the word to mean anything other than the persons specified in the indictment. This is not plain error.

Gonzales alleges that the court's admission of drug transaction records seized from an absent codefendant's purse constitutes error. The trial court's ruling must be upheld unless clearly erroneous. United States v. Moody, 778 F.2d 1380, 1382 (9th Cir. 1985).

The records are admissible only as co-conspirator declarations under Fed.R.Evid. 801(b) (2) (E). Gonzales claims that United States v. Attardi, 796 F.2d 257 (9th Cir. 1986), is factually controlling. The court there held that the government had not established that the sales were made in the course of the conspiracy but found the error harmless. Id. at 260. There was so much other evidence that the records made no difference.

Even if admission of the records was clearly erroneous, the error was harmless. The records were a drop in the bucket in the sea of evidence against Gonzales.

The trial court agreed to give a requested entrapment instruction as to Gonzales and Campbell. When the judge orally instructed the jury just prior to argument, however, he mistakenly gave it as to "Campbell and Guzman," not "Campbell and Gonzales." No one recognized the error; Gonzales's attorney proceeded to argue entrapment to the jury. The written instructions that went into the jury room contained the same error. Gonzales did not object to the erroneous instruction at any point in the trial court below, but asserts error on appeal under Fed. R. Crim. P. 30, which requires the trial court to give counsel notice of the jury instructions that will be given.

Had Gonzales made a timely objection, and were he entitled to an entrapment instruction, the failure to give the instruction would be reversible per se. United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984) (if a defendant's theory of the case is supported by law, and if there is some foundation for the theory in the evidence, the failure to give the defendant's proposed jury instruction is reversible per se) . Even if Gonzales were not entitled to an entrapment instruction as a legal and factual matter, if the judge led him to believe he would give an entrapment instruction and then announced his intention not to give the instruction at such time that Gonzales' closing argument was prejudicially affected (e.g., after closing arguments were completed), that would constitute reversible error under Rule 30. United States v. Harvill, 501 F.2d 295, 296-97 (9th Cir. 1974) (per curiam).

In this case, the judge read the jury instructions prior to the closing arguments, so it is questionable whether appellant can claim a Rule 30 violation based on prejudice to his closing argument at all. More importantly, Gonzales did not object to the erroneous entrapment instruction. Rule 30 specifies that " [n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict...." Absent such an objection, we review only for plain error. As we noted above, plain error should be found only in exceptional circumstances. United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989). "A plain error is a highly prejudicial error affecting substantial rights." United States v. Giese, 597 F.2d 1170, 1199 (9th Cir. 1979). "It must be highly probable that the error materially affected the verdict." Kessi, 868 F.2d at 1103 (citations omitted). Here, while there are two possible ways the verdict could have been affected, we find it highly unlikely that the verdict was affected in either manner. Thus, we find no plain error.

First, as a substantive matter, the error in the instruction arguably precluded the jury from finding that Gonzales was entrapped by the government.³  Gonzales failed, however, to offer even enough evidence to entitle him to an entrapment instruction. A defendant is entitled to an entrapment instruction if he presents "some evidence that (1) a government agent induced him ... to commit an illegal act that (2) he ... was not predisposed to commit." United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir. 1989). The evidence in this case conclusively demonstrated that Gonzales was (1) dealing with the government-informant dealer long before she became a government informant and (2) supplying drugs long before he was caught up in the government sting. Based on this evidence, no rational jury could have concluded that Gonzales was entrapped. Had Gonzales' counsel spotted the name-error and had it been corrected so that the case went to the jury error-free, with an entrapment instruction in his name, Gonzales would have been no better off since no reasonable juror possibly could have found entrapment. All-in-all, given his counsel's trial strategy, Gonzales was not prejudiced.

Second, the effectiveness of Gonzales' closing argument may have been prejudiced because his counsel argued entrapment when he ultimately did not receive an entrapment instruction. Were we actually confronted here with a last-minute refusal by the trial judge to give an entrapment instruction as promised in advance, coupled with a timely objection by the defendant, the relevant inquiry would be whether defendant's closing argument was prejudicially affected by such a Rule 30 violation. Harvill, 501 F.2d at 296-97. However, since we review for plain error only, we must also consider whether it is highly probable that any negative effect on Gonzales' closing argument materially affected the verdict. Undoubtedly had Gonzales' counsel been aware that he would not receive an entrapment instruction, he would have structured his closing argument differently; but given that he devoted less than a third of his closing argument to issues related to entrapment, and in light of the overwhelming evidence of Gonzales' guilt, we cannot say that any prejudice to Gonzales' closing argument reaches the level of plain error.

CONCLUSION

We affirm the convictions as to all defendants.