Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

No. 87-5262.

United States Court of Appeals, Ninth Circuit.

Before BEEZER, KOZINSKI and RYMER, Circuit Judges

MEMORANDUM^** 

Steven Kostov appeals pro se his conviction of one count of conspiracy in violation of 18 U.S.C. § 371, and seven counts of mail fraud in violation of 18 U.S.C. § 1341.¹  A fire occurred on July 22, 1984 at a retail establishment known as "Harold's Place," owned and operated by Diane Candoli. Kostov was convicted of participating in a scheme to purchase insurance coverage for Harold's Place, liquidate the store's saleable inventory, burn down the store, file a claim for insurance proceeds, and share in the proceeds.

* We review de novo the validity of a warrantless search and seizure. United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989). The probable cause finding is reviewed de novo, while findings of fact are reviewed for clear error. Id. at 740.

A district court's determination whether a search was consensual depends on the totality of the circumstances and is a question of fact reviewed under the clearly erroneous standard. United States v. Brown, 884 F.2d 1309, 1311 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 732, 107 L. Ed. 2d 750 (1990).

There is sufficient evidence to support a conspiracy conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 862 F.2d 210, 214 (1988), reh'g denied, 882 F.2d 356 (1989).

Whether, and the manner in which, a court conducts in-court identification are reviewed for an abuse of discretion. United States v. Domina, 784 F.2d 1361, 1369-72 (9th Cir. 1986), cert. denied, 479 U.S. 1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987).

A court's control over the manner of questioning at trial is reviewed for an abuse of discretion. United States v. Taylor, 716 F.2d 701, 710 (9th Cir. 1983).

II

Fourth amendment violation

Kostov argues that the July 10 stop of the Mercedes in which he was driving violated his Fourth Amendment rights, and that the subsequent July 26 search which produced the "fruits" of that illegal stop should not have been admitted. We disagree.

First, Kostov lacks standing to challenge the July 26 search of the Mercedes since he did not own the car; rather, Aetna Insurance Company did. Only the vehicle's owner or an individual with a legitimate privacy interest in the vehicle may challenge a search. United States v. Wanless, 882 F.2d 1459, 1462 (9th Cir. 1989). Here, the Mercedes had been reported stolen and Aetna had reimbursed the car's true owner for the car's value. Therefore, Kostov has no standing to challenge the search.

Further, the July 10 stop of the Mercedes was reasonable. When a police officer observes a driver commit a moving violation, he has probable cause to stop the driver. New York v. Class, 475 U.S. 106, 117-18, 106 S. Ct. 960, 968, 89 L. Ed. 2d 81 (1986). Once the officer stops the car, he may conduct a limited investigatory stop and order the driver out of the car. Pennsylvania v. Mimms, 434 U.S. 106, 109-10, 98 S. Ct. 330, 332-33 54 L. Ed. 2d 331 (1977). If probable cause to arrest develops, the officer may arrest the occupants and search the vehicle's passenger compartment contemporaneous to the arrest. New York v. Belton, 453 U.S. 454, 461 n. 4, 101 S. Ct. 2860, 2864 n. 4, 69 L. Ed. 2d 768 (1981). The officer may search the entire car, including the trunk and containers located inside, if he has probable cause to believe the places searched contain evidence of a crime. United States v. Ross, 456 U.S. 798, 821, 102 S. Ct. 2157, 2171, 72 L. Ed. 2d 572 (1982). Finally, an officer may lawfully search a car after securing the owner's consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854 (1973).

Here, the police stopped the Mercedes because the driver had committed a moving violation: he drove the wrong way down a one-way alley. Before approaching the car, the officers learned that the same car had been seen parked an hour earlier across the street from a store recently victimized by early morning burglaries. The officers' observations, in plain view, of a prybar tucked under the front seat and screwdrivers in the glove compartment, heightened their suspicion as did Kostov's and the driver's inconsistent explanations concerning their presence in the area. Moreover, the officers learned that the car was stolen and there was an outstanding arrest warrant for Kostov. These facts gave the officers sufficient probable cause to stop the Mercedes and to arrest the occupants. The ensuing search of the car was reasonable and did not violate Kostov's fourth amendment rights.

Moreover, the July 26 search was legal because police may inventory a lawfully impounded vehicle without a warrant at any time. South Dakota v. Opperman, 428 U.S. 364, 367-69, 96 S. Ct. 3092, 3096-97, 49 L. Ed. 2d 1000 (1976). Further, Aetna, the car's owner, consented to the search. See Schneckloth, 412 U.S. at 222, 93 S. Ct. at 2045.

Finally, the July 26 search was so far removed from the July 10 arrest that the evidence discovered cannot be said to be the "fruit of the poisonous tree," and therefore the exclusionary rule does not apply. The causal chain between Kostov's arrest on July 10 and the search of the Mercedes on July 26 was broken by the intervening fire at Harold's Place on July 22. Thus, the July 26 search was based on information wholly independent of the July 10 stop. See Wong Sun v. United States, 371 U.S. 471, 491-92, 83 S. Ct. 407. 419-20, 9 L. Ed. 2d 441 (1963).

Therefore, in light of the fact that both the July 26 search and July 10 stop complied with Fourth Amendment requirements, the district court properly denied his motion to suppress.

Sufficiency of the evidence

Kostov argues that there was insufficient evidence to establish a conspiracy since other than associational factors, no evidence connected him to the July 22 arson or to mail fraud. Sufficient evidence to support a conspiracy conviction exists if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Adler, 862 F.2d at 214. Once a conspiracy is established, the defendant need only have a slight connection to link him with the conspiracy. United States v. Hernandez, 876 F.2d 774, 779 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 179, 107 L. Ed. 2d 135 (1989). Circumstantial evidence may prove the existence of a conspiracy--the agreement need not be explicit. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987).

The jury could reasonably convict. Kostov managed Harold's Place and was involved in a "relationship" with Candoli. In late July, Candoli put her entire inventory up for sale. Earlier, Candoli had consistently opposed any kind of inventory sale. Further, Candoli had bought insurance before the fire after long disapproving of the idea of insurance. The day before Kostov's arrest, Kostov had asked the gas station attendant to fill empty plastic milk containers with gasoline. Gasoline started the fire, and Harold's Place was a point of the fire's origin. After Kostov's arrest, matches and plastic containers containing gasoline were discovered in the Mercedes' trunk. On the night of the fire, and right before the fire broke out, witnesses saw Kostov at the Daisy Club, a short distance from the fire scene. Further, the door to Harold's place had not been broken down, but had been opened with the key and Kostov was the only person that night who had the key to Harold's Place.

In-court identification

Kostov argues that the in-court identification made by the gas station attendant, Frank Jones, was the result of an impermissibly suggestive pretrial photo identification. A suggestive identification procedure does not violate due process if the identification has sufficient aspects of reliability. Manson v. Brathwaite, 432 U.S. 98, 109-114, 97 S. Ct. 2243, 2250-53, 53 L. Ed. 2d 140 (1977). Whether an identification is reliable depends on the witness's opportunity to view the criminal at the time of the crime; the witness's degree of attention; the accuracy of his prior description of the criminal; the level of certainty shown at the confrontation; and the time between the crime and the confrontation. Id. (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).

Here, Jones had ample opportunity to view Kostov when Kostov bought gasoline: Kostov purchased the gasoline from a full-serve station; Jones served Kostov in broad daylight; and Jones spoke directly with Kostov. Also, Kostov stood out in Jones's mind because of the unusual nature of his request to fill two empty plastic milk containers with gasoline. Under these circumstances Jones's identification was reliable.

Limitation on scope of cross-examination of investigating agent

Kostov complains that his cross-examination of the investigating agent regarding a sanction for failing to perform his duties properly in dealings with the insurance companies who insured the businesses in the same building as Harold's place was unduly restricted. This same claim was rejected in the related case of United States v. Candoli, 870 F.2d 496, 503-04 (9th Cir. 1989).

Testimony about Kostov's flight

Kostov indicated to the court that he wished to testify about his reasons for fleeing the United States, and sought a ruling that such testimony would not waive his Fifth Amendment privilege as to other matters. A testifying defendant cannot invoke on cross-examination the privilege against self-incrimination regarding matters made relevant by direct examination. Brown v. United States, 356 U.S. 148, 155-56, 78 S. Ct. 622, 627, 2 L. Ed. 2d 589 (1958). What the defendant actually discusses on direct examination does not determine the extent of permissible cross-examination or of his waiver; rather, the question is whether "the government's questions are 'reasonably related' to the subjects covered by the defendant's testimony." United States v. Black, 767 F.2d 1334, 1341 (9th Cir.), cert. denied, 474 U.S. 1022, 106 S. Ct. 574, 88 L. Ed. 2d 557 (1985). Further, fixing the extent of cross-examination is within the trial judge's discretion, Id, which he did not abuse.

Special verdict on conspiracy count

Kostov argues that the district court should have required the jury to return a special verdict form on the conspiracy count so that the jury could identify which of the charged objects they unanimously agreed upon. Having failed to do that, Kostov urges that the conspiracy conviction must be reversed because there is no way to tell that the jury did not rely upon one object--attempted arson--for which the evidence was legally insufficient. The court gave a unanimous agreement instruction, and there was no call for it to instruct more particularly.²  Nor is there any reason to reverse in this case; because the jury convicted on mail fraud charges, its unanimous agreement on those charges support the conspiracy verdict.

Fair cross section challenge

Kostov argues that the jury was nonrepresentative of the community since the jury consisted exclusively of "white Caucasians" and no Russians--Kostov's nationality. He fails to indicate that the issue is preserved. In any event Kostov's argument fails because the sixth amendment does not guarantee a randomly selected jury nor does it require that the jury contain representatives from every group in the community. Coleman v. McCormick, 874 F.2d 1280, 1283 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 349, 107 L. Ed. 2d 337 (1989) (citations omitted).

Government employee sitting as a juror

Kostov has similarly failed to indicate that this issue was preserved for appeal. Regardless, Kostov's assertion that the "possibility of lingering loyalty to the agency" may exist does not amount to bias. Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir. 1990), cert. denied, No. 90-5737, slip op. (U.S. Feb. 19, 1991).

Accordingly, we VACATE the conviction and sentence imposed on the attempted arson count. AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

KOZINSKI, Circuit Judge, concurring:

I concur in the judgment. I would not reach the merits of the fourth amendment issues because Kostov clearly lacked standing to challenge either the July 10 stop or the July 26 search. Only the owner of a vehicle or an individual with a legitimate privacy interest in a vehicle may challenge a search. United States v. Wanless, 882 F2d 1459, 1462 (9th Cir 1989). On July 10, Kostov was merely a passenger in a stolen vehicle; on July 26, the vehicle was lawfully impounded in a police lot and was owned by Aetna insurance. Kostov never owned the vehicle nor had he a legitimate expectation of privacy with respect to it. As standing is a threshold issue, we need not go any further; indeed, we may not.

I would also not reach the merits of either the fair cross section or juror bias challenges. If, as the court holds, defendant waived these arguments, he waived them.