Unpublished Disposition, 930 F.2d 920 (9th Cir. 1988)

MEMORANDUM^** 

In December of 1986, a federal grand jury indicted appellant, Donald Gene Henthorn, and seventeen others for conspiracy to import cocaine (21 U.S.C. §§ 952, 960, 963) (count 1); conspiracy to possess cocaine with intent to distribute (21 U.S.C. §§ 841(a) (1), 846) (count 2); conspiracy to transport monetary instruments of more than $10,000 to or from the United States (count 3) [Henthorn was not charged in this count]; and travel in interstate and foreign commerce in aid of racketeering enterprises (18 U.S.C. 1952(a) (3)) (count 4).

The case was originally assigned to federal District Judge Irving. After Henthorn filed a motion to dismiss on double jeopardy grounds, Judge Irving held evidentiary hearings and ultimately denied the motion.

In January of 1986, the case was reassigned to Judge Turrentine. The trial commenced on March 8, 1988 and the jury returned a verdict of guilty on all three counts. On June 2, 1988, Henthorn was allowed to join co-defendant Riley's motion to reconsider Judge Irving's denial of the double jeopardy motion. The motion was again denied.

Judge Turrentine sentenced Henthorn to 10 years in custody on counts one and two, which run concurrently with each other, and consecutively to the sentence for his Texas conspiracy conviction. On count four, Henthorn was sentenced to five years probation.

Appellant sets forth a plethora of issues, only one of which has substantive merit: the prosecution's failure to review for Brady material the personnel files of testifying officers. We consider that issue separately in an opinion filed concurrently herewith.

DISCUSSION

1. Were co-conspirator statements properly admitted under Fed.R.Evid. 801(d) (2) (E)?

Appellant argues that the trial court erred in admitting the statements of his alleged co-conspirators. District court determinations that the statements were made, "during the course" and "in furtherance of" the conspiracy are reversible only on showing of clear error. United States v. Schmidt, 881 F.2d 608, 610 (9th Cir. 1989).

a. Larsen

In accordance with Judge Turrentine's ruling, Larsen's testimony regarding his conversation with co-conspirator Lawrence excluded any reference to Henthorn. The testimony was offered solely to implicate Lawrence. Therefore, the testimony does not prejudice appellant. Henthorn, at any rate, asserts that Larsen's testimony failed the requirements of the co-conspirator exception to the hearsay rule. However, the record shows that the trial court properly allowed Larsen's testimony under the standards set forth in Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987), and United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986).

b. Harper

Henthorn objects to Harper's testimony regarding Henthorn's statements to Agent Harper. Statements made by a party opponent are not hearsay and are admissible, provided the statements are offered against the party and are the party's own statement. Fed.R.Evid. 801(d) (2) (A). The record demonstrates that Harper's testimony satisfies the requirements of Rule 801(d) (2) (A). Accordingly, the district court did not err in allowing Harper's testimony.

c. Jansante

Ms. Jansante's testimony was not offered against Henthorn [RT V 118-141]. Instead, the testimony was offered against Lawrence as an admission by co-defendant Lawrence under Fed.R.Evid. 801(d) (2) (A). Henthorn's name was not mentioned by Ms. Jansante, and the jury was instructed not to consider her testimony with regard to him. The district court properly admitted Jansante's testimony as a party admission against Lawrence.

d. Giddings

Ms. Giddings testified that Lawrence had telephoned her in an attempt to persuade Ms. Jansante not to testify against him [RT IV 145]. As such her testimony was admitted as a party admission only against co-defendant Lawrence. Fed.R.Evid. 801(d) (2) (A) [RT IV 138].

e. Pittman

Appellant contends that the district court erred in admitting Pittman's testimony because "Pittman produced no independent [sic] evidence that the appellant had watched admitted Captain Pittman (T3 II 64) load, fly, and unload drugs ..." Appellant's Opening Brief at 11. This argument has no merit, as the appellant fails to point to any coconspirator statement to which Pittman testified.

Appellant also argues that the trial court erred in not allowing appellant to impeach Pittman by using information that Delta Airline's allegedly fired Pittman for "illicit abuse of drugs." The record shows that Henthorn did not raise this issue at the February 18, 1988 hearing. We therefore do not consider the objection on appeal.

f. Ashley

Again, Henthorn challenges this witness' statements as hearsay, without identifying any particular objectionable statements. In any event, even if Ashley's testimony constituted hearsay, its admission into evidence would amount only to harmless error since, as Henthorn himself notes, Ashley's testimony did not directly inculpate Henthorn in any manner.

2. Did evidence of co-conspirator Lawrence's admissions to co-conspirators Larsen, Jansante, and Giddings violate Bruton v. U.S. and therefore require a severance?

Appellant contends that the district court erred in refusing to grant a severance because the introduction of evidence regarding co-conspirator Lawrence's admissions violated Bruton v. United States, 391 U.S. 123 (1968).

Denial of a motion for severance is reviewed for abuse of discretion. United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 823 (9th Cir.), cert. denied 471 U.S. 1139 (1985). The court must determine whether " 'a joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion by ordering a separate trial.' " United States v. McCown, 711 F.2d 1441, 1449 (9th Cir. 1983) (quoting United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir. 1982).

Bruton held that the Sixth Amendment prohibits a court from introducing into evidence a co-defendant's incriminating confession in a joint trial with the defendant, even if the jury is instructed to consider that confession only against the co-defendant. Bruton does not, however, preclude the trial court from admitting evidence of a co-defendant's confession if all references to the defendant are removed from it. Richardson v. Marsh, 481 U.S. 200 (1987). Here, none of the evidence regarding Lawrence's admissions implicated the appellant. We conclude that the district court properly found that the evidence regarding Lawrence's admissions did not violate Bruton and therefore did not require a severance.

3. Did the district court infringe upon Appellant's right to present relevant impeachment evidence?

We review questions regarding the admissibility of evidence for abuse of discretion. See United States v. Catabran, 836 F.2d 453, 456 (9th Cir. 1988). Factual determinations by the trial court are reviewed for clear error. See United States v. McConney 728 F.2d 1195, 1200 (9th Cir. 1984) (en banc), cert denied, 469 U.S. 824 (1984).

a. The district court did not abuse its discretion by restricting appellant's disclosure of the amount the government paid to Harold Larsen as a reward for his role as an informant. The court allowed appellant to refer only to the fact that Larsen was paid a "substantial sum," in order to avoid "open [ing] the door to reflect the prior conviction on the Texas conspiracy." The court stated that it would allow the government to inquire about the Texas conspiracy conviction if appellant questioned Larsen as to the specific amounts Larsen had been paid. We find that the trial court did not abuse its discretion in so doing. See United States v. Marshall, 526 F.2d 1349, 1361 (9th Cir. 1975), cert. denied sub nom., Marshall v. United States, 426 U.S. 923, 96 S. Ct. 2631, 49 L. Ed. 2d 376 (1976). With regard to Larsen's failure to produce his income tax returns, appellant has shown no prejudice resulting from their absence. Indeed, at trial, appellant did not seek any additional order to compel production of the tax returns.

b. Henthorn's allegation that charges against Larsen's son were dropped in exchange for Larsen's testimony was not made at trial. Accordingly, he may not litigate the issue on appeal.

c. Appellant did not raise at trial his claim that Larsen made various statements to appellant's Texas attorney which might serve to exculpate appellant. Appellant's claim is therefore waived on appeal.

d. The district court did not abuse its discretion in allowing appellant's request for Pittman's past addresses, but denying appellant's request for Pittman's current address. See Clark v. Ricketts, 886 F.2d 1152, 1154 (9th Cir. 1989).

Pittman's testimony that he did not file income tax returns for the years 1983, 1984, and 1985, undermines appellant's request for those documents, absent other proof of their existence. As discussed supra, appellant did not raise this issue at trial and therefore has waived it for purposes of appeal.

e. Customs' agents testified that Pittman made no handwritten statements. [RT at 63-64] Henthorn does not offer any proof of wrongdoing--i.e. a cover-up--by the agents. At trial, Henthorn had ample opportunity to challenge the veracity of the witness's claims.

f. Henthorn asserts that the court reporter failed to transcribe witness testimony at the motion hearing on September 9, 10, and 11, 1987. Appellant does not offer any argument or point to any evidence to buttress his allegations. Absent evidence to the contrary, we presume on appeal that the reporter's transcript is correct. See Bergerco, U.S.A. v. The Shipping Corporation of India, Limited, 896 F.2d 1210 (9th Cir. 1990). We also reject appellant's allegations of an illegal arrest and "cover-up," because he fails to provide any supporting evidence or argument.

g. & h. Likewise, in the absence of supporting evidence, we find no merit in appellant's claim that Larsen has tape recordings which show that he asked Larsen not to do the government's preferred drug deal.

i. Appellant makes no showing that his attendance during the United States government's interview of Baramdyka in a Chilean jail would have been helpful in any way. Nor does appellant claim that his counsel could not have conducted his own interview of Baramdyka.

j. Henthorn argues that in order for him to have a fair hearing, the court must entertain his 60 witnesses to determine whether the two trials constitute double jeopardy. Where the court can establish that two separate crimes have been committed, based on the proffered materials, an evidentiary hearing is not required for the double jeopardy determination. See United States v. Benefield, 874 F.2d 1503 (11th Cir. 1989). The district court examined the transcript of the prior proceedings and held evidentiary hearings before deciding the double jeopardy question. Under the circumstances of this case, the district court hearings were sufficient. We therefore conclude that the district court did not err in refusing to allow appellant to present his 60 witnesses in support of his argument that the instant trial violates the Double Jeopardy clause.¹ 

4. Was Henthorn improperly misled by the district court's evidentiary rulings?

Contrary to Henthorn's assertion, the district court did not rule at the February 18, 1988 pretrial hearing that Larsen's, Harper's and Jansante's testimony would be excluded [RT 2/18/88 at 36]. Instead the court tentatively ruled that the facts surrounding the Texas trial would not be admitted [RT 2/18/88 at 20]. The district court adhered to this ruling throughout the trial.

With regard to statements made by Henthorn, the district court noted that "admissions, statements that he made, may well be [admitted]," [RT 2/18/88 at 20]. Additionally, it was defense counsel Michael McCabe, not the district court as Henthorn contends, who raised the issue of excluding Henthorn's statements and referred to them as "general" and "puffing." [RT 2/18/88 at 36].

With respect to the tape recordings of telephone conversations between Henthorn and Larsen, there was no mention of the tapes at the February 18, 1988 hearing.

5. Was Henthorn's prosecution for conspiracy barred by a prior conspiracy conviction?

We review de novo a district court's denial of a motion to dismiss the indictment on the ground of double jeopardy. U.S. v. Goland, 897 F.2d 405 (9th Cir. 1990).

Appellant argues that the Texas conspiracy prosecution conviction encompasses the government's charges for the California conspiracy, as both conspiracies arise from his alleged involvement with the Baramdyka organization. We disagree. The record shows that the Texas conspiracy trial arose from agent Harper's sting operation, which induced Henthorn and Riley to purchase six (6) kilos of cocaine from agent Harper in Texas. Conversely, the California conspiracy involved Henthorn's role in the importation of cocaine for the Baramdyka organization. The Texas prosecution did not address Henthorn's involvement with the Baramdyka organization; it dealt only with the sting operation in Texas. In other words, the Texas and California cases involved separate and distinct conspiracies. The two separate prosecutions therefore do not violate the Double Jeopardy Clause of the Fifth Amendment.² 

6. Did the district court err in instructing the jury?

a. Double Jeopardy: Appellant was not entitled to a jury instruction on his double jeopardy defense, because the district court must decide double jeopardy claims as a matter of law.

b. Unanimous Jury Instructions: We conclude that Judge Turrentine's instructions that the jury must "agree on which of the overt acts was committed," [RT VII 69] and further that they must find beyond a reasonable doubt "that some particular one of the overt acts charged in the indictment on which you all agree was carried out" [RT VII 69-70] satisfy Fed. R. Crim. P. 31(a) and does not violate due process.

c. Dominion and control. The district court properly refused to instruct the jury on dominion and control because Henthorn was charged with conspiracy, not substantive offenses.

d. Non-verdict: The district court's instruction that the jury must reach a unanimous verdict sufficiently informed the jury of its decisional options. Such an instruction effectively covers non-verdicts.

e. Historical Conspiracy. Appellant was indicted for and convicted of conspiracy, not "historical conspiracy." Thus, the district court did not err in not defining the term "historical conspiracy."

f. Lesser Included Offense. As stated previously, the Texas conspiracy is not a lesser included offense of the Baramdyka conspiracy.

7. Interdiction of the Truth Seeking Process

a. "Coaching" Witnesses: Appellant does not substantiate, to any extent, his assertion that the government "coached" Harper, Pittman, Ashely, and Jansante. We therefore find no merit in his claim.

With respect to Larson, the district court properly instructed the witness in order to avoid double jeopardy problems. We find no evidence of improper "coaching."

b. Allowing testifying agents to hear each other's testimony at trial?

Fed. R. Crim. P. 615(2) provides that a court may not exclude government case agents from trial proceedings, even though those agents may later appear as a witnesses.

8. Was there Government Misconduct?

The record discloses no evidence of government misconduct or suppression of the evidence.

9. Has Appellant been denied access to the court?

We agree with the government that appellant's 51 attachments serve as ample proof that he has had access to the court.

10. Was Henthorn denied effective assistance of counsel?

A claim of ineffective assistance of counsel, as a mixed question of law and fact, is reviewed de novo. See Reiger v. Christensen, 789 F.2d 1425, 1428 (9th Cir. 1986). A deficient performance is one in which counsel made errors so egregious that he failed to function within the scope guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1983). To demonstrate ineffective assistance of counsel, a convicted appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland at 485.

Appellant contends that his attorney advised him that if he proceeded to trial and lost, he would be sentenced to no more than the one year plea bargain offered by the Government and that if he should plead guilty he could not appeal on double jeopardy grounds. However, appellant's statements at his sentencing hearing undermine this position. He stated, " [I] took total responsibility for the decision to go to trial." [RT 6/16/88 21] Moreover, the record indicates that appellant's attorney informed him that it is "possible to plead guilty and then appeal on double jeopardy grounds." [RT 6/16/88 24].

Even if we assume appellant's assertions are true, inaccurate predictions standing alone still fail to rise to the level of the "ineffective assistance" under the Sixth Amendment. JAEA v. Summer, 800 F.2d 861 (9th Cir. 1986).

11. Was Henthorn improperly indicted and sentenced under 18 U.S.C. § 1961?

Appellant's argument is inapposite, as he was indicted and sentenced for interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952, not for RICO, 18 U.S.C. 1961.

12. Was Henthorn's sentence disproportionate to co-conspirators' sentences?

Imposition of a sentence within the legally prescribed limits is reviewed for abuse of discretion, United States v. Hall, 778 F.2d 1427, 1428 (9th Cir. 1985), and the fact that sentences are disparate is insufficient to demonstrate abuse. United States v. Meyer, 847 F.2d 1408, 1416 (9th Cir. 1988).

At trial the prosecutor addressed the disparity issue, citing the fact that appellant was both pilot and in charge of the flight operations for the Baramdyka conspiracy. [RT 6/16/88 at 27]. In sentencing appellant, the district court stated that because he was not familiar with the charges and plea agreements of the other defendants, he would not consider them as compared to the facts of this case. [RT 6/16/88 at 43.]. We conclude that the district court did not abuse its discretion in sentencing appellant.

Appellant also contends that he was penalized for exercising his constitutional right to stand trial because the district court punished him much more severely than the plea bargain he rejected. The district court imposed a ten-year sentence for his conviction; although the prosecution had offered to plea bargain for a one-year sentence. While a defendant cannot be punished more severely because he exercised his right to stand trial, Meyer at 1416, the mere fact that defendant rejected a lesser plea bargain does not of itself invalidate the relatively severe sentence for abuse of discretion. United States v. Morris, 827 F.2d 1348, 1352 (9th Cir. 1987). Indeed, contrary to defendant's assumption, "no presumption of vindictiveness arises when the defendant's original sentence was based upon a guilty plea and the second sentence follows a trial." Alabama v. Smith, --- U.S. ---- 109 S. Ct. 2201, 2205-06 (1989). Appellant's sentence is within the statutory limits. Nothing in the record on appeal, aside from the length of the sentence, suggests that the district court used its sentencing power as a "carrot and stick." In the absence of supporting evidence, appellant's claim must fail. Accordingly, on the record before us we cannot conclude that the district court abused its discretion in imposing the ten-year sentence on appellant.

13. Do appellant's concurrent sentences for the two conspiracy counts violate the Double Jeopardy Clause?

The Double Jeopardy Clause protects against, inter alia, multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969). As the United States Supreme Court noted in Grady v. Corbin, 110 S. Ct. 2084 (1990), the Double Jeopardy Clause simply prevents the sentencing court from meting out greater punishment than intended by the legislature. Where Congress intended to impose multiple punishments arising from a single conspiracy, the imposition of sentences for both transgressions does not violate the Double Jeopardy Clause. See Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137 (1981). Here, appellant was convicted and sentenced for conspiracy to import and conspiracy to possess cocaine with intent to distribute. Congress' enactment of the statutes exhibit a clear intention to impose multiple punishments for the two drug conspiracies.

14. Did the district court violate Rule 32 at sentencing?

The legality of a sentence is reviewed de novo. United States v. Pomazi, 851 F.2d 244, 247 (9th Cir. 1988). Fed. R. Crim. P. 32(c) (3) (d) states that challenges to the factual accuracy of the presentence investigation report shall require the court to make a finding as to the allegation or determine that no such finding is necessary because the matter will not be taken into account for sentencing. A written record of such findings shall accompany the presentence investigation report and be made available to the Bureau of Prisons and the Parole Commission.

The district court made the requisite determination as per Fed. R. Crim. P. 32(c) (3) (d), but did not attach a copy of its findings to the presentence investigation report.³ 

In United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 (9th Cir. 1990) (en banc), this court held that such a technical violation does not require re-sentencing. Such ministerial errors may be remedied by ordering the district court to attach the sentencing transcript to the presentence report, and absent a showing that the defendant's sentence was based on demonstrably false information, the sentence should stand.⁴  Here, the record does not show that Henthorn's sentence was based on false information. Thus, there is no basis for setting it aside.

CONCLUSION

The judgment of the district court is affirmed in all respects considered in this memorandum disposition. However, the district court is ordered to attach a copy of its findings made pursuant to Fed. R. Crim. P. 32(c) (3) (d) to the presentence report. The case is now remanded to the district courts for the reasons and purposes set forth in our contemporaneously filed published opinion.

REMANDED for further proceedings in conformance with our published opinion in this case.