Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

MEMORANDUM^* 

OVERVIEW

Defendant-appellant Joseph David Dunham appeals his conviction for conspiracy and creating and supplying fraudulent documents for use in applications for adjustment of alien residence status, in violation of 18 U.S.C. §§ 371 & 2; 8 U.S.C. § 1160(b) (7) (A) (ii) (1988). We affirm.

DISCUSSION

Dunham contends the district court abused its discretion in denying his motion for severance, pursuant to Fed. R. Crim. P. 14.

Dunham argues severance was warranted in light of several factors: the four-month length of the trial; more than 160 exhibits introduced at trial; the overwhelming weight of the evidence against codefendant John Johnson; the fact that Johnson represented himself in pro per at trial; and six separately charged conspiracies involved. Consequently, Dunham contends he suffered from a prejudicial spillover effect from the evidence against Johnson and from the complexity of the conspiracies.

Dunham has not met his burden to show the district court abused its discretion in denying the numerous motions for severance. See, e.g., United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987). The appellants have not convincingly shown any of their fair trial rights were deprived by joinder. See United States v. Vaccaro, 816 F.2d 443, 449 (9th Cir.), cert. denied, 484 U.S. 914 (1987). As a general rule, "defendants jointly charged are to be jointly tried." United States v. Ramirez, 710 F.2d 535, 545 (9th Cir. 1983); see also United States v. Whitworth, 856 F.2d 1268, 1277 (9th Cir. 1988), cert. denied, 489 U.S. 1084 (1989).

Here, the Superseding Indictment charged common offenses based on similar conduct and involving six separately stated conspiracies. Each defendant was named with at least one other defendant in a common count: Johnson, Quintana-Rascon and Gonzalez on count six; Johnson and Benitez-Urquidez on counts one and nine; and Johnson and Dunham on counts three and eight. The court further repeated limiting instructions concerning the admissibility of evidence against certain defendants. At the end of the trial, the court instructed the jury to consider separately the evidence against each defendant and added "your verdict as to any defendant should not control your decision as to any other defendant." See, e.g., United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856 (1980). The spillover concerns of Dunham were not so manifestly prejudicial as to deny his fair trial rights. United States v. Jenkins, 785 F.2d 1387, 1394 (9th Cir.), cert. denied, 479 U.S. 855 (1986). Dunham has not shown that the circumstances of this case made the jury unable to segregate the evidence presented against each of the defendants. Nor has he shown that the jury was unable to follow the court's limiting instructions. Id.; Ramirez, 710 F.2d at 546.

Dunham argues the district court abused its discretion in admitting hearsay translations of statements attributed to him. See generally United States v. Kirk, 844 F.2d 660, 663 (9th Cir.) (per curiam), cert. denied, 488 U.S. 890 (1988).

The district court did not abuse its discretion in admitting this evidence, as it was admissible as non-hearsay pursuant to Fed.R.Evid. 801(d) (2) (C) or (D). An inference that the translators served as agents of Dunham may be established where, as here, "there is no motive to mislead and no reason to believe the translation is inaccurate." United States v. Da Silva, 725 F.2d 828, 832 (2d Cir. 1983).¹  The translations of Dunham's statements were contemporaneous. Therefore, the translators served merely as "a language conduit" between Dunham and Rodriguez-Ochoa. United States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973) (per curiam).

III. Motion for Mistrial: Prosecutorial Misconduct

Dunham appeals the denial of his mistrial motion based upon prosecutorial comments during rebuttal argument. Specifically, Dunham contends the prosecutor impermissibly commented on the fact that Dunham did not testify at trial. Additionally, Dunham maintains the prosecutor shifted the burden of proof. "The inquiry is whether allegedly improper behavior, considered in the context of the entire trial, including the conduct of the defense counsel, affected the jury's ability to judge the evidence fairly." United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986).

No prosecutorial misconduct has been shown. Contrary to Dunham's assertion, a review of the trial transcript shows the Government did not refer to Dunham's failure to testify but noted the lack of testimony of three specific witnesses. Cf. Griffin v. California, 380 U.S. 609, 615 (1965) (prohibiting a prosecutor from commenting on an accused's failure to testify). First, Dunham points to the Government comments that two witnesses did not testify, Estaban Soto, a paid INS informant, and Gilberto, a bartender-interpreter for Dunham. Second, Dunham objected to the prosecutor's rebuttal argument that only the Government's handwriting expert testified, although Dunham had a handwriting expert review some documents. It is permissible to note the defense failure to present exculpatory evidence where those comments, as here, do not implicate the defendant's right not to testify. United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987); see also United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1988); United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir. 1984). Significantly, none of the challenged comments reflected upon Dunham's failure to testify.

IV. Motion for Mistrial: Alleged Doyle Violation

Dunham challenges the denial of his motion for mistrial, arguing an impermissible trial reference was made to the invocation of his Miranda rights during custodial interrogation. Dunham contends this violated the Due Process Clause under the holding in Doyle v. Ohio, 426 U.S. 610, 619 (1976). Review is whether any error was harmless beyond a reasonable doubt. See United States v. Espinosa, 827 F.2d 604, 616 (9th Cir. 1987), cert. denied, 485 U.S. 968 (1988).

Recently the Supreme Court found no Doyle violation occurred where the prosecutor asked a single question concerning the accused's postarrest silence, an immediate objection was made, and two curative instructions were given. Under these circumstances, the Supreme Court held, " [t]he fact of [the] postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred." Greer v. Miller, 483 U.S. 756, 765-66 (1987). Similar to Greer, Dunham's due process rights were not violated here. First, the Miranda rights testimony was elicited by the counsel for Gonzales, not by the prosecution, and also appears to have been inadvertent. The reference clearly was an isolated event in this four-month trial. Second, Dunham's counsel raised an immediate objection and the trial court promptly had the response stricken.

Dunham challenges the upward departure of his sentence under the Sentencing Guidelines, pursuant to U.S.S.G. Sec. 5K2.7, at 5.45 (Nov.1990) for causing significant disruption of a governmental function.

In a Statement of Reasons for Imposing Sentence, the district court adopted the Presentence Report recommendations as bases for an upward departure: (1) significant disruption of governmental function; and (2) multiple violations of section 1160(b) (7) (A) (ii). Prior to sentencing the court had given notice of these grounds for departure. The district court also received a three-and-a-quarter page letter from the INS Regional Commissioner detailing the disruptive impact the Johnson et al. case had on the Yuma Sector Border Patrol.

Dunham argues his role in the scheme to create or supply false documents was minimal and that the upward departure was erroneously based upon the aggregate conduct of his codefendants. The Presentence Report, p 26, noted Dunham sold at least 200 sets of fraudulent documents. Dunham only admitted that he was involved in two sets of documents for profit, but the Presentence Report noted the evidence of investigating agents was overwhelming that his participation was greater. Presentence Report, paragraphs 32, 44. We find that the district court did not abuse its discretion and that the departure was in all respects reasonable.

Dunham also challenges the district court order of up to $15,000 in restitution as a special condition of supervised release. Dunham argues the restitution is excessive as it does not relate to the offense for which he was convicted.

We find that the restitution order is not excessive since it is expressly limited "to those who actually suffered economic loss."

AFFIRMED.