Unpublished Disposition, 927 F.2d 611 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 611 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Carlton DIETRICK, aka Carl Yetrick, Defendant-Appellant.

No. 90-50078.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 6, 1990.Decided Feb. 27, 1991.

Appeal from the United States District Court for the Southern District of California, No. CR 89-0322-K; Judith N. Keep, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before JAMES R. BROWNING, PREGERSON and LEAVY, Circuit Judges.


MEMORANDUM* 

Carlton Dietrick appeals his conviction, following a jury trial, for conspiracy to import cocaine and for the importation of cocaine in violation of 21 U.S.C. §§ 952, 960, and 963. Dietrick contends the district court erred by admitting evidence of a threat made by him to Alberto Hernandez-Rodriguez ("Hernandez"), a witness, in order to show consciousness of guilt. Dietrick also claims the district court erred by admitting into evidence two receipts concerning the maintenance of two cars in order to connect the cars to Dietrick. We affirm.

DISCUSSION

Dietrick raises two sets of challenges on appeal to the admissibility of the threat testimony by Deputy Marshal David Dallaire. First, Dietrick contends the district court erred by failing to weigh the probative value of the threat testimony against the possibility of prejudice. Dietrick also asserts in this vein that the probative value of the evidence was outweighed by its prejudicial effect due to its lack of reliability. Second, Dietrick alleges the government used evidence of the threat in a context beyond the limited purpose for which it was introduced. Dietrick also maintains the use of this threat evidence to discredit Hernandez's testimony was otherwise improper.

Dietrick's two contentions based upon Fed.R.Evid. 403 were not raised below. A party fails to preserve an evidentiary issue for appeal by failing to make a specific objection. United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990). Accordingly, we review these contentions for plain error. Id.

First, as to the contention that the district court failed to conduct a Rule 403 balancing, we have held that "a district court need not mechanically recite Rule 403's requirements before admitting evidence." United States v. Thomas, 893 F.2d 1066, 1071 (9th Cir. 1990). It is enough if we can conclude, based upon a review of the record, that the district court considered Rule 403's requirements. Id. Here, we are satisfied upon reviewing the record that the district court did consider this issue. The district court originally indicated it would not admit the threat testimony when Hernandez had testified only that he could not remember if Dietrick had sold him the maroon Caprice, and only reconsidered after Hernandez had testified that Dietrick was in fact not the seller and that he had "no fear of admitting to anything." Moreover, the district court held a hearing outside the presence of the jury to take testimony from the witnesses before rendering its decision.

Second, as to the contention that the probative value of the threat testimony was outweighed by its unreliability, we have upheld the introduction of threat evidence even in situations in which the recipient of the threat did not testify as to its communication to her. In United States v. Mouton, 617 F.2d 1379, 1386 (9th Cir.), cert. denied, 449 U.S. 860 (1980), we upheld the introduction of threat evidence via tape recordings of telephone conversations. We concluded that it was not an abuse of discretion for the district court to accept an FBI agent's testimony concerning the recordings as a proper foundation for the evidence. Id. at 1384. Dietrick has cited no case which holds that threat testimony must be verified by the threat's recipient.

Accordingly, we conclude that the district court's admission of the threat testimony in light of Rule 403 does not amount to plain error.

Dietrick's second set of contentions relates to the use of the threat testimony to rebut Hernandez's testimony. Dietrick first contends that the use of the threat testimony beyond its limited purpose to show "consciousness of guilt" was error. As the government correctly notes, however, the threat testimony was introduced not only to show "consciousness of guilt" but also to explain away Hernandez's testimony. Dietrick did not object to the use of the threat testimony for this purpose. Hence, we again review this issue only for plain error. Gomez-Norena, 908 F.2d at 500.

We conclude that the district court's admission of the threat testimony for purposes beyond the showing of consciousness of guilt was not plain error. Bias evidence consistently has been held to be a permissible basis for impeachment of a witness. United States v. Abel, 469 U.S. 45, 51 (1984).

As such, we also reject Dietrick's second argument that the threat testimony, as extrinsic evidence, was improperly used to discredit Hernandez's testimony. As has been noted, bias evidence is permissible in this context. Id.

Dietrick also contends the district court erred by admitting into evidence two receipts found in the glove boxes of the maroon Caprice driven by Hernandez and the brown truck driven by Octavio Chig-Valenzuela. Dietrick asserts the district court erred because there was an insufficient foundation connecting these receipts. We disagree.

The district court ruled the documents were admissible only as circumstantial evidence to show a connection between the two cars, not to show a connection between Dietrick and the two vehicles.1  We conclude that the government established a sufficient foundation justifying the admission of the two "diagnostico" receipts. Both cars came across the border on October 16, 1987. Both cars contained packages of cocaine marked with the initials "MIO", "CHA", or "A1". Both cars had identical temporary permits which expired on November 5, 1987. Accordingly, the district court did not err by admitting the Diagnostico receipts into evidence.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The connection between Dietrick and the vehicles had already been established by the admission of a "Mad Jack's" stereo receipt in Dietrick's name and containing his signature that was also found in the glove box of the maroon Caprice. On appeal, Dietrick does not contest the propriety of admitting the "Mad Jack's" receipt into evidence