Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Leroy SCHLEINING, Defendant-Appellant.

No. 90-10269.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


MEMORANDUM** 

Leroy Schleining appeals his conviction following a jury trial for possession of a non-registered explosive device (pipe bomb), in violation of 26 U.S.C. § 5861(d). Schleining contends that: (1) the evidence was insufficient to support the jury's guilty verdict; (2) the district court erred by refusing to order the government to produce a witness for an interview; (3) the district court erred by excluding portions of expert testimony; and (4) the trial judge's comments and suggestions during trial constituted judicial misconduct. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Sufficiency of the Evidence

Schleining claims the evidence was insufficient to establish that he had constructive possession of the pipe bomb. Sufficient evidence to support a conviction exists if "a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989) (citation omitted); Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Under a theory of constructive possession, the defendant must have "sufficient dominion and control to give him the power of disposal.... Possession and knowledge can be established by circumstantial evidence.... 'Mere proximity to contraband, presence on property where it is found and association with a person or persons having control of it are all insufficient to establish constructive possession.' " United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1989) (citations omitted) (quoted in Hernandez, 876 F.2d at 778). A possessory interest in the premises where contraband is found raises an inference of constructive possession. See Hernandez, 876 F.2d at 778. Nevertheless, when two or more persons share the premises where contraband is discovered, a party must have knowledge of the contraband, as well as the power and the intention to exercise dominion and control over it. See United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990); United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985).

Here, Schleining argues that he and Theresa Edelman shared the house where the police discovered the pipe bomb, and that it belonged to Edelman. He claims that he had no connection to the pipe bomb, and that he segregated Edelman's belongings from his own when she vacated the house.

Nevertheless, the pipe bomb was discovered on Schleining's bedroom shelf and he was aware of its existence. Schleining had unlimited access to the explosive device and was the sole occupant of the room at the time of the search. The evidence, when viewed in the light most favorable to the government, could have lead a rational trier of fact to find that Schleining had constructive possession of the pipe bomb. See Terry, 911 F.2d at 278.

Right to Interview Witness

Schleining argues that the district court erred by denying him the right to ask Edelman personally whether she would consent to an interview.1  Schleining concedes that the government is not obligated by the Constitution or by statute to produce a witness who does not wish to be interviewed. Nevertheless, he claims he should have been permitted to confront the witness.

We interpret Schleining's claim as challenging the district court's refusal to order a deposition. We review the district court's denial for an abuse of discretion. United States v. Cutler, 806 F.2d 933, 935 (9th Cir. 1986). " [T]he government [is] not obliged to make [a witness] available for trial nor [does the witness] have to consent to an interview." Id. at 936; see Fed. R. Crim. P. 15(a). "A defendant may depose a witness only if the witness may be unable to attend trial." United States v. Rich, 580 F.2d 929, 934 (9th Cir.), cert. denied, 439 U.S. 935 (1978).

Here, Schleining requested the district court to order the government to produce Edelman for an interview. The government responded by stating that although Edelman was available to testify in court, she refused to consent to an interview by the defense.

Edelman was not obliged to grant Schleining an interview. See Cutler, 806 F.2d at 936. Furthermore, Schleining had the opportunity to call and question Edelman at trial, but chose not to. See id. Therefore, the district court did not err by denying Schleining's request for an interview. Id.2 

Expert Testimony

Schleining asserts that the district court erred by refusing to admit evidence from a proffered expert on latent fingerprint analysis and investigative techniques. "A trial court's exclusion of expert testimony is reviewed for manifest error or abuse of discretion." United States v. Rubio-Villareal, 927 F.2d 1495, 1502 (9th Cir. 1991).

Here, Schleining introduced Robert Reid as an expert on explosive devices. Reid would have presented testimony about the lack of fingerprints on the pipe bomb and alleged flaws in the investigation. Schleining contended that Reid was an expert in these areas because Reid was a fire marshall trained in handling explosive devices. Nevertheless, upon questioning by the government, Reid admitted that he had very limited training in the analysis of latent fingerprints, and that he had never conducted an investigation of this type. Reid's lack of formal training and actual experience provided the district court with a reasonable basis to exclude the proffered testimony. See Rubio-Villareal, 927 F.2d at 1502.

Judicial Misconduct

Schleining argues that the district court committed judicial misconduct by its comments and suggestion during trial. Schleining did not object to the district court's comments and did not make a motion for a mistrial. Accordingly, we review only for plain error. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir. 1989).

Here, the government neglected to admit into evidence the PVC pipe bomb found on Schleining's bedroom shelf before closing its case. The district court reminded the government of this oversight and allowed it to reopen its case for the purpose of admitting the exhibit. Schleining claims that, but for the district court's comments, he "most likely would have been not guilty ... and fully exonerated." Appellant's Brief at 31. Nevertheless, prior to the alleged misconduct, the government had elicited testimony describing the pipe bomb in detail and had introduced a photograph of the device into evidence.

In light of the evidence admitted prior to the alleged misconduct, Schleining failed to demonstrate that the district court's comments affected his substantial rights or the outcome of the trial. See Sanchez-Lopez, 879 F.2d at 553. Thus, the district court's comments did not constitute plain error. Id.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Therefore, Schleining's request for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The government did not call Edelman to testify at trial. Nevertheless, she was available to testify throughout the course of the trial, and Schleining chose not to question her

 2

Schleining's reliance on United States v. Opager, 589 F.2d 799 (5th Cir. 1979) is misplaced. Opager does not create the right for a party to interview or question an adverse witness. Rather, in Opager, the government defied a court order requiring the government to disclose the location and identity of an informant. Id. at 804. The government openly disregarded the district court's order, and the Fifth circuit reversed the judgment for that reason. Id. at 805. Here, the district court did not order Edelman to be deposed