Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^* 

Beauford Edgar Dunn appeals his conviction for possession of methamphetamine with intent to distribute. We affirm.

* DEA agents searched Dunn's residence pursuant to a search warrant. In the garage, which was detached from the house, the agents found an ice chest containing a large quantity of methamphetamine, some of which was contained in separate ziplock bags, and a set of measuring spoons. Debra Dunn, defendant's wife, was arrested. Beauford Dunn was found at the construction site where he worked. Dunn was arrested and a search revealed that he was carrying $2,664.00 in cash.

Debra Dunn pleaded guilty to a charge in a superseding information that she provided a fictitious or fraudulent statement. She was sentenced to seven months, which she had already served, and was released from custody. In a separate trial, Beauford Dunn was convicted of possession of the methamphetamine with intent to distribute. He was sentenced to 120 months imprisonment, to be followed by a five year period of supervised release.

II

Dunn challenges the sufficiency of the evidence supporting his conviction. Although Dunn failed to move for a judgment of acquittal at the close of evidence, which usually serves to waive the right to appeal the sufficiency of the evidence, see United States v. Mora, 876 F.2d 76, 77 (9th Cir. 1989), we may nevertheless review the sufficiency of the evidence to prevent a manifest miscarriage of justice or for plain error. Id.

To prove possession with intent to distribute, the government must prove that the defendant knowingly possessed the contraband with intent to distribute. United States v. Walitwarangkul, 808 F.2d 1352, 1353 (9th Cir.), cert. denied, 481 U.S. 1023 (1987). Possession may be actual or constructive, and constructive possession exists if the government proves "a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over the substance." United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986).

Dominion or control over the "premises ... in which the contraband is concealed" may be sufficient to establish constructive possession. See United States v. Terry, 911 F.2d 272, 280 (9th Cir. 1990). Knowledge may be inferred from constructive possession of a substantial quantity of narcotics. See Williams v. United States, 418 F.2d 159 (9th Cir. 1969) (conviction upheld where heroin found in closet from which defendant took his clothes), aff'd on other grounds, 401 U.S. 646 (1971); United States v. Collins, 764 F.2d 647, 652 (9th Cir. 1985). The fact that the defendant is found with a large amount of cash is also probative of state of mind and intent in a narcotics distribution scheme. See United States v. Bernal, 719 F.2d 1475, 1478 (9th Cir. 1983).

In the present case, Dunn had dominion and control over the drugs by virtue of his residence at the house and his control over the key to the garage. The fact that he was found to be carrying an unusually large amount of cash is also evidence of knowledge of and participation in a drug distribution scheme. Although Dunn presented evidence to show that he was unaware of the presence of the drugs in the garage, some of this evidence was contradicted by evidence introduced by the government and all of it depended on the credibility of Dunn's witnesses.¹  We must "respect the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict." United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987) (quotation omitted). Assuming resolution of all evidentiary conflicts and credibility determinations in favor of the prosecution, as we must in the case of a challenge to the sufficiency of the evidence, see Terry, 911 F.2d at 278, Dunn's conviction does not constitute either a manifest miscarriage of justice or plain error.

III

Dunn argues that he was prejudiced by the answers the trial court gave in response to questions asked by the jury during its deliberations. The invited error doctrine precludes a party from arguing that a jury instruction was erroneous if that party itself suggested the language of the instruction. United States v. Benny, 786 F.2d 1410, 1416 (9th Cir.) (citation omitted), cert. denied, 479 U.S. 1017 (1986). If the defendant fails to object to the court's proposed instruction, any alleged error is waived and the instruction may only be reviewed for plain error. Id. (citation omitted). These principles apply in the present case to bar review of four of the seven answers to which Dunn objects.

Regarding the question about the cause for the search warrant, Dunn's counsel agreed that the court could tell the jury that a magistrate issued the warrant on the basis of probable cause if the court cautioned the jury that "they're to draw no inference about guilt or innocence from the issuance of the search warrant, and that the standard for the issuance of the search warrant is substantially less [than beyond a reasonable doubt]." [E.R. 71 at 277.] The trial court complied with this request. [E.R. 71 at 280.] Dunn's counsel also agreed that the court could tell the jury that Dunn's nephew was not involved in the case in any way [E.R. 71 at 278], and that the court could respond to the questions about the Debra Dunn's charges and convictions by reading the superseding information and stating that she pleaded guilty. [E.R. 71 at 272.]

Regarding the jury's question about the ownership of the cooler in which the drugs were found, the trial judge told the jury that "unfortunately, this was not gone into during the trial. ... [P]resumably none of us know [s] whether the cooler chest belonged to Beauford Dunn or belonged to Roger Dunn. We just don't know because the evidence as to that fact did not come out during the trial." [E.R. 71 at 282]. There is nothing to support Dunn's contention that this gave the jury the impression that the trial judge knew the answer. The judge did not tell the jury anything they did not already know; had there been evidence of ownership, they would not have felt the need to ask the question. Similarly, the trial judge did not err in having the court reporter read from the transcript of Roger Dunn's testimony in response to the jury's question whether Roger knew about the spoons found in the cooler.

The final issue raised on appeal is that of the trial judge's admitted error in telling the jury that Dunn was in jail during the trial. Although the judge admitted that he erred, he also gave a detailed curative instruction to remind the jury that Dunn was to be considered innocent and that they were to draw no inference from the fact of his custody. [E.R. 71 at 294-96]. It is presumed that the jury will follow curative instructions "unless there is an 'overwhelming probability' that the jury will be unable to [do so], and a strong likelihood that the effect of the evidence would be 'devastating' to the defendant." Greer v. Miller, 483 U.S. 756, 766 n. 8 (1986) (citing Richardson v. Marsh, 481 U.S. 200, 208 (1987); Bruton v. United States, 391 U.S. 123, 136 (1968)).

There is nothing in the present case to suggest that the jury would be unable to follow the trial court's instructions. Furthermore, we have held that allowing the jurors to see a defendant handcuffed to a United States Marshal is "not so inherently prejudicial as to require a mistrial without more." United States v. Hopkins, 486 F.2d 360, 362 (9th Cir. 1973) (quotation omitted); see also, Payne v. Smith, 667 F.2d 541, 545 (6th Cir. 1981) (comments of the trial judge regarding custody did not deny the defendant due process). Similarly, knowing that the defendant is in custody is not prejudicial when the jury is instructed not to draw any inference of guilt from that fact.

AFFIRMED.