Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

MEMORANDUM^* 

In early June, 1988, agents of the Federal Bureau of Investigation (FBI) in Philadelphia, Pennsylvania informed FBI agents in Tucson, Arizona that a 1988 Chevrolet pickup truck would be arriving in Tucson to buy a load of marijuana which was to be taken back to Philadelphia and distributed. The Philadelphia agents gave the Tucson agents the truck's license number and told them the truck would arrive at the Cliff Manor Inn in Tucson. On June 12, 1988, FBI agents spotted the truck at the motel and began surveillance. It was later determined that Thomas Twaddle was the driver of the truck.

On June 13, 1988, FBI agents followed the truck to a townhouse on Seig Avenue in Tucson where Martin Moose was waiting. A few minutes later appellant Larry Lester Gray arrived at the townhouse in a Ford Taurus; Gray got out of the Taurus and carried several large plastic bags into the townhouse. Inside the house Gray and Moose provided Twaddle with a marijuana sample, but no deal was made because Twaddle was not impressed with its quality.

The next day Gray met Twaddle in a restaurant and told him a higher grade of marijuana was being obtained and would be available later in the day. Gray and Twaddle went back to the Cliff Manor Inn, had lunch at a different restaurant, and then drove together in Gray's Taurus to the townhouse on Seig Avenue where Moose was again waiting. This time Twaddle approved of the marijuana sample, so Gray drove Twaddle back to the motel and told him to wait until all of the marijuana could be obtained.

At approximately 5:00 p.m. the same day, Twaddle drove the truck to the townhouse. Gray and Moose took Twaddle to a bedroom and showed him numerous bags of marijuana with a specific weight written upon each one. Twaddle had $100,000, but according to the weights on the bags the marijuana was worth $105,000, and there was no way to accurately reduce the amount in any bag. The men therefore agreed that Twaddle should take all of the marijuana to Philadelphia, sell it, and return to Arizona to pay Gray for the extra marijuana. Minutes after Twaddle gave Gray the $100,000, Gray left. Twaddle then spent two hours wrapping the marijuana to conceal its smell.

After the marijuana was loaded into the truck, Twaddle drove to the motel and checked out, and then started for Philadelphia. FBI agents and Tucson police stopped Twaddle as he was leaving Tucson. After Twaddle consented to a search and executed a written consent form, FBI agents searched the truck and found the marijuana in some suitcases.

In October, 1988, FBI agents discovered Gray owned the Ford Taurus they had observed in the drug transaction. FBI agent Cole prepared an affidavit and obtained a seizure warrant for the car; the car was then confiscated.

On November 1, 1989, Gray was indicted and charged with conspiring to distribute marijuana in violation of 21 U.S.C. § 846 and with distributing between fifty and one hundred kilograms of marijuana in violation of 21 U.S.C. § 841(a) (1). Gray pled not guilty to both counts.

Gray filed a pretrial motion to suppress the evidence obtained in the search of Twaddle's truck. The court concluded that neither Gray's affidavit nor his subsequent testimony established he had standing to contest the search.

Gray's trial began on February 26, 1990. At trial Agent Cole was called to testify. On redirect examination, the prosecutor asked Cole whether there was "any effort whatsoever by anybody to get that Taurus back?" Finding the question was "close to a comment on failure of the defendant to testify," the court sustained defense counsel's objection, instructed the jury to disregard the question, but refused to grant appellant's motion for a mistrial. The government never raised the question again.

On February 28, 1990, the jury found Gray guilty on both counts. On April 27, the court sentenced Gray to 50 months of imprisonment on each count to run concurrently, and five years supervised release. The court rejected appellant's contention that he was entitled to a two point reduction for acceptance of responsibility. We affirm.

ANALYSIS

A. Standing to Contest the Search and Seizure

We review de novo the district court's conclusion that a defendant lacks standing to assert a Fourth Amendment claim. United States v. Iglesias, 881 F.2d 1519, 1522 (9th Cir. 1989).

Gray maintains he had standing because he partially owned the marijuana and because he and Twaddle were pursuing a joint criminal venture when the marijuana was seized. See United States v. Johns, 707 F.2d 1093 (9th Cir. 1983), rev'd on other grounds, 469 U.S. 478 (1985). We disagree. The United States Supreme Court has made clear that the relevant inquiry in determining whether a person has standing to contest an allegedly illegal search is whether the person has a "legitimate expectation of privacy" in the place searched. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v. Illinois, 439 U.S. 128 (1978); Iglesias, 881 F.2d at 1522; United States v. Grandstaff, 807 F.2d 851 (9th Cir. 1987); United States v. Kovac, 795 F.2d 1509, 1510 (9th Cir. 1986), cert. denied, 479 U.S. 1065 (1987) (citing Rawlings) . The alleged existence of a joint venture and appellant's alleged ownership in the drugs are simply facts "to be considered" in determining whether appellant did indeed have a legitimate expectation of privacy in the truck. Rawlings, 448 U.S. at 105; United States v. DiCesare, 765 F.2d 890, 896 (9th Cir. 1985) (rejecting standing based on a joint venture alone).

The trial judge was not required to accept Gray's view that the loose agreement between Twaddle and Gray was a joint venture; it is more easily viewed as a credit sale. Whether or not Gray partially owned the drugs, Gray nonetheless has wholly failed to sustain his burden of proving he had a legitimate expectation of privacy in the truck. See Rawlings, 448 U.S. at 104. In Rawlings, the Court held that a defendant did not have standing to contest the search of another person's purse in which the defendant had placed illegal drugs. In so holding, the Court explained the defendant had no expectation of privacy in the purse because he "had known [the owner of the purse] for only a few days" when he placed the drugs in the purse; he "had never sought or received access to [the] purse prior to that sudden bailment"; he did not "have any right to exclude other persons from access to [the] purse"; and the "precipitous nature of the transaction" did not support "a reasonable inference that [the defendant] took normal precautions to maintain his privacy." Id. at 105. In the case at bar, Gray had known the owner of the truck for less than two days; he did not seek or receive access to the truck; he could not exclude others from the truck; and the precipitous nature of the transaction demonstrated appellant did not take normal precautions to maintain his privacy. Indeed, only minutes after Gray received the money for the marijuana he left the scene without taking any precautions whatsoever to maintain his privacy in the truck.

B. The Defendant's Right Against Self-Incrimination

We review a district court's denial of a motion for a mistrial for abuse of discretion. United States v. Segal, 852 F.2d 1152, 1155 (9th Cir. 1988). To prevail on a claim that a prosecutor's remark constitutes an impermissible comment on the defendant's failure to testify, a defendant must show the statement "was manifestly intended or was of such character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Carter, 760 F.2d 1568, 1578 (11th Cir. 1985) (citations omitted); see United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987).

In the case at bar the prosecutor asked an FBI agent on redirect examination whether there was "any effort whatsoever by anyone to get the Taurus back?" The prosecutor told the district court he asked the question because he thought the defendant's inaction before trial regarding the forfeiture of the Taurus was probative since the car was expensive and defense counsel had elicited testimony respecting its seizure. In some instances a defendant's pre-arrest, pre-Miranda warning silence may be introduced without violating the defendant's right against self-incrimination. Jenkins v. Anderson, 447 U.S. 231 (1980); United States v. Giese, 597 F.2d 1170, 1197 (9th Cir.), cert. denied, 444 U.S. 979 (1979). The prosecutor's comment came only after defense counsel had produced the agent's affidavit for the seizure of the Taurus, and after counsel had attempted to impeach the agent on cross-examination using the affidavit. Hence, the district court did not abuse its discretion in concluding the prosecutor did not ask the question with the manifest intent of making an improper comment on appellant's failure to testify.

Moreover, the jury would not naturally and necessarily have to conclude that asking whether "anyone" tried to get the Taurus back was a comment on appellant's failure to testify. The prosecutor did not mention appellant by name, ask the question a second time, or "directly comment on appellant's failure to testify." Lopez, 803 F.2d at 973. The court also instructed the jury to disregard the question.

We review the district court's refusal to give a two point reduction for acceptance of responsibility under the clearly erroneous standard. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). The commentary to section 3E1.1 of the Sentencing Guidelines tells us the sentencing judge is "in a unique position to evaluate a defendant's acceptance of responsibility." United States Sentencing Commission, Guidelines Manual, Sec. 3E1.1, comment (n. 5) (Nov. 1989). Based on this comment, this court gives "great deference" to the sentencing judge's determination on acceptance of responsibility and will not disturb it unless it is "without foundation." Gonzalez, 897 F.2d at 1019.

The district court provided a foundation for its refusal to grant a two point acceptance of responsibility reduction: the court explained that it would not accept the mere admission of guilt after a conviction as a basis for such an award. Gray is correct that his election to proceed to trial, rather than pleading guilty at the outset, does not in itself make him ineligible for the acceptance of responsibility reduction. See id. at 1021. Even disregarding his election to plead not guilty, however, appellant's behavior does not rise to the level of "sincere contrition" or "sincere remorse" required to qualify for the reduction. See Sec. 3E1.1 comment. (n. 2); United States v. Ramos, No. 89-50242, slip op. at 513 (9th Cir. January 17, 1991) (a defendant's "minimilistic description of his involvement" in a crime does not establish acceptance of responsibility). Appellant also failed to provide any assistance to authorities, including the probation officer who was seeking information regarding the convicted offenses. See United States v. Skillman, 922 F.2d 1370 (9th Cir. 1991) (holding a defendant did not accept responsibility, in part because he refused to talk to the probation officer).

Appellant's contention that the district court in effect has "punished" him for exercising his constitutional right to remain silent lacks merit. As this court stated in Gonzalez: "The pursuit by a defendant of a trial strategy of denying culpability may lower his chances of obtaining the reduction under section 3E1.1, but these consequences do not constitute an infringement of the Fifth Amendment privilege against self-incrimination." Gonzalez, 897 F.2d at 1021.

AFFIRMED.