Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

MEMORANDUM^** 

Mose Allen Geter appeals his conviction, after a jury trial, of one count of conspiracy to commit theft from an interstate pipeline, a violation of 18 U.S.C. sections 371 and 659, and ten counts of aiding and abetting theft from an interstate pipeline, violations of 18 U.S.C. sections 659 and 2(a). We affirm.

Geter argues that the district court committed reversible error by allowing co-conspirator Milo Janis to testify as follows:

Q: I would like to direct your attention to the years 1982 through 1984. During those years did you participate in the theft of oil from an interstate pipeline in Morongo Valley, California?

Mr. Twitty [defense counsel]: Objection. That calls for a significant legal conclusion on the part of the witness, Judge.

The Court: Overruled. You may answer it.

The Witness: Yes, I did.

By Mr. Heather [prosecutor]: Q: And with whom--where were those thefts accomplished?

A: In the Morongo Valley, California, area.

Q: And with whom, if anyone, did you participate in those thefts?

A: I participated with Chip Geter, Chris Geter, Mose Geter, and Konrad Prager.

After identifying the men named, Janis admitted under oath that he had entered into a plea bargain and cooperation agreement with the government.

Geter contends that Janis gave a lay opinion on the legal implications of Geter's conduct. He argues that the phrase "theft of oil from an interstate pipeline" tracks the caption of his indictment. We understand but reject the argument.

Janis's testimony was permissible as an admission of his own involvement in the charged crime. Such admissions are permissible to support the witness's claim of firsthand knowledge of the conduct relevant to the charged crime. United States v. Rewald, 889 F.2d 836, 865 (9th Cir. 1989) (" 'evidence of a witness' own guilty plea can be used only to assess credibility' ") (quoting United States v. Halbert, 640 F.2d 1000, 1006 (9th Cir. 1981)), as amended, 902 F.2d 18 (9th Cir.), cert. denied, 111 S. Ct. 64 (1990).

Opinion testimony in the form of a legal conclusion is impermissible because it tends to convey the witness's unexpressed and perhaps erroneous legal standards to the jury. Torres v. County of Oakland, 758 F.2d 147, 150 (9th Cir. 1985). Exclusion is required if "the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular." Id. at 151. The term "theft" as used by the witness has no "specialized meaning in law different from that present in the vernacular." Further, questions regarding the state of mind of another are proper. United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988); Hansard v. Pepsi-Cola Metropolitan Bottling Co., 865 F.2d 1461 (5th Cir.), cert. denied, 110 S. Ct. 129, and 110 S. Ct. 129 (1989). "(T)heft of oil from an interstate pipeline" was merely nonmisleading, vernacular shorthand describing Geter's conduct to which Janis later testified. Geter attempts to bolster his claim of reversible error with the fact that the jury apparently had difficulty in reaching a verdict. We have reviewed the record. There is no support for Geter's contention that Janis's alleged opinion testimony created that difficulty.

Evidence of Geter's involvement was substantial. In addition to Janis's testimony, the evidence included: (1) witness testimony that Geter drove a tanker truck matching the description of those used in transporting the oil and asked to park it on the witness's property, (2) extensive physical evidence on Geter's property of pipeline tapping, (3) incriminating statements Geter made during and immediately after the FBI search of his property, and (4) Geter's statement to a witness that there were three other taps into the pipeline, combined with the discovery of two of those taps.

Affirmed.