Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^** 

Humberto Martin-Gonzalez appeals his conviction, following a jury trial, for conspiracy to distribute cocaine and possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a) (1) and 846. Martin-Gonzalez contends that the district court erred in denying his motion for a mistrial. We review for an abuse of discretion, United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985), and we affirm.

The power to declare a mistrial " 'ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.' " United States v. Escalante, 637 F.2d 1197, 1202 (9th Cir.), cert. denied, 449 U.S. 856 (1980). When a witness makes inappropriate or prejudicial remarks, a mistrial should be granted only if there has been so much prejudice that a cautionary instruction is unlikely to cure the error. Id. at 1203.

Here, Martin-Gonzalez and three codefendants were arrested following an undercover investigation by the Drug Enforcement Administration (DEA). Codefendant Loic Pouvreau gave a detailed statement and named Martin-Gonzalez as the source of the cocaine that Pouvreau had sold. Before trial, the prosecutor and defense counsel agreed that when the DEA agent testified about Pouvreau's post-arrest statement, Pouvreau's identification of Martin-Gonzalez as the source of cocaine would not be admitted. During direct examination of the DEA agent, the prosecutor referred to Pouvreau's post-arrest statement and asked who were some of the individuals "to whom" Pouvreau had supplied cocaine. Although Pouvreau's statement indicated only that he received cocaine from Martin-Gonzalez, the agent mistakenly responded that "some of the individuals mentioned in the statement were Humberto." Defense counsel did not make a contemporaneous objection, but after the jury had been excused for the day counsel made a motion for a mistrial. The district court denied the motion, and instructed the jury to disregard all of the DEA agent's testimony about Pouvreau's post-arrest statement.

The district court did not abuse its discretion in denying Martin-Gonzalez's motion for a mistrial. The court instructed the jury to ignore all of the agent's testimony regarding Pouvreau's post-arrest statement. In light of the substantial evidence presented against Martin-Gonzalez, this cautionary instruction was sufficient to cure any prejudice caused by the agent's inadvertent and inaccurate reference to "Humberto" in response to the prosecutor's question. See Escalante, 637 F.2d at 1202-03.

AFFIRMED.