Unpublished Disposition, 935 F.2d 276 (9th Cir. 1989)

MEMORANDUM^* 

Whether the Jury Was Properly Instructed on What Constitutes Possession

Appellant David Chow argues his conviction of the lesser included offense on count 5, possession with intent to distribute over 500 grams of cocaine, must be reversed because the jury was improperly instructed on what constitutes possession. Relying on United States v. Terry, 911 F.2d 272 (9th Cir. 1990), Chow asserts that the jury was not told that they would have to find that the person "knows of its presence and has physical control of it or has the power and intention to control it."

The jury was instructed that the government must prove that the defendant knowingly possessed cocaine and that he possessed it with intent to deliver it to another person. The court went on to instruct on the meaning of possession by using instruction number 9.03B from the Manual of Model Jury Instructions for the Ninth Circuit (1985). In addition, the jury was instructed, "Mere proximity to contraband, mere presence on the property where it is found, mere association with the person having control over the contraband or control over the property on which the contraband is found, are all insufficient to establish constructive possession." The instruction, including the need to prove that the defendant knowingly possessed the cocaine along with the instruction that proximity, presence, or association are insufficient to establish constructive possession, overcomes the infirmity of instruction number 9.03B found in Terry.

Chow also argues the jury was improperly instructed because they were told "possession means having physical control [which] may be direct, as by actually holding a thing " and that the jurors erroneously could have concluded that the presence of Chow's fingerprints on the tape established that he held the kilo and therefore possessed it. We will not consider this contention because it is raised for the first time in the reply brief. United States v. Kendrick, 692 F.2d 1262, 1265 n. 3 (9th Cir. 1982), cert. denied, 461 U.S. 914 (1983).

Whether an Instruction Was Necessary That a Fingerprint, Without More, Cannot Establish Possession

Chow claims he was entitled to an instruction, based on the defense theory of the case, that fingerprint evidence alone is insufficient to establish possession. " 'A defendant is entitled to an instruction concerning his theory of the case if it is supported by law and has some foundation in the evidence.' " United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir. 1984) (en banc).

Here, there was evidence in addition to the fingerprints that linked Chow to the cocaine. Because the record does not support Chow's contention that the only evidence of his involvement was his fingerprints, the district court did not err in refusing his requested instruction.

Whether the Jury Was Improperly Instructed on Reasonable Doubt

Chow argues the court erred by using the reasonable doubt instruction from section 3.04 of the Manual of Model Jury Instructions for the Ninth Circuit. Chow contends the court should have given the instruction on reasonable doubt from Devitt and Blackmar, Federal Jury Practice and Instructions, Sec. 11.14 (3rd ed. 1977).

Chow's argument fails. Although this circuit prefers the "hesitate to act" language of the Devitt and Blackmar instruction, the failure to use that instruction does not constitute reversible error. United States v. Robinson, 546 F.2d 309, 313-14 (9th Cir. 1976), cert. denied, 430 U.S. 918 (1977).

Whether the Court Improperly Admitted the Expert Testimony Regarding Where the Cocaine Was Packaged

Chow claims the trial court improperly admitted the expert testimony of DEA agent Georges that, with rare exceptions, cocaine that is 88% pure is cocaine that was originally packaged in South America and is probably in the same form as when it was smuggled into this country.

Chow objected to the admission of the expert testimony on a different basis before the trial court, so we review for plain error only.¹  United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.), cert. denied, 111 S. Ct. 363 (1990). Reversal on the basis of plain error is an "exceptional remedy" invoked "only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.), cert. denied, 110 S. Ct. 416 (1989).

This case does not implicate these concerns. We have consistently held that an expert may testify that particular conduct fits the usual cocaine trafficker's modus operandi. See, e.g., United States v. Espinoza, 827 F.2d 604, 612 (9th Cir. 1987), cert. denied, 485 U.S. 968 (1988).

Whether the Trial Court Erred by Refusing to Grant Immunity to Two Defense Witnesses

Chow claims the trial court committed reversible error by refusing to grant immunity to two defense witnesses, both of whom asserted their fifth amendment rights in refusing to testify.

A defendant is entitled to an evidentiary hearing on the failure of defense witnesses to give testimony only if he makes "an unrebutted prima facie showing of prosecutorial misconduct that could have prevented a defense witness from giving relevant testimony." United States v. Lord, 711 F.2d 887, 891 (9th Cir. 1983). To make a prima facie showing, a defendant must establish that the evidence was relevant and that the prosecution deliberately intended to distort the judicial factfinding process by denying immunity to the defense witness. Id.

Chow failed to present any evidence that the prosecutor deliberately intended to distort the judicial factfinding process. Therefore, we need not consider the argument further.

Whether Chow Had Standing to Challenge the Search of the Mercedes in Which the Cocaine Was Found

Chow appeals the district court's ruling that he had no standing to challenge the search of the duffel bag that contained the cocaine. The duffel bag was in the trunk of a red Mercedes Benz parked in Honore's garage.

We affirm the district court. At the suppression hearing on September 18, 1989, Chow failed to prove his ownership of the Mercedes Benz or that he had the right to use the Mercedes or the garage. The cocaine was placed in the trunk of the car without Honore's consent, and Honore demanded that Chow remove the cocaine. Under these circumstances, Chow had no expectations of privacy in the Mercedes or the garage. See United States v. Salvucci, 448 U.S. 83, 93 (1980).

AFFIRMED.