Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)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.Trinidad GUTIEREZ-NUNEZ, Defendant-Appellant.

No. 90-30032.

United States Court of Appeals, Ninth Circuit.

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

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


MEMORANDUM** 

Trinidad Gutierez-Nunez ("Nunez")1  appeals his conviction following a jury trial for conspiracy to possess and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a) (1), 846. Nunez contends that the district court erred by refusing to give his proposed jury instructions on "mere presence" and permissible inferences. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

"It is well-established that a criminal defendant is entitled to have a jury instruction on any legal defense to the charge against him which has some foundation in the evidence." United States v. Chen, No. 90-10434, slip op. at 6509, 6514 (9th Cir. May 23, 1991). "A failure to give such instruction is reversible error; but it is not reversible error to reject a defendant's proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that defense theory." United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990). "So long as the instructions fairly and adequately cover the issues presented, the judge's formulation of those instructions or choice of language is a matter of discretion." United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985) (citation omitted) (quoted in Chen, No. 90-10434, slip op. at 6515).2 

Mere Presence Instruction

Nunez's defense theory was that he was merely present at the crime scene and did not possess or agree to possess the cocaine. Accordingly, Nunez requested the following instruction:

[k]nowledge that a transaction is being committed, even when coupled with presence at the scene, without more, is insufficient to prove a person's criminal involvement in the crime allegedly being committed.

The district court denied Nunez's request because its conspiracy instruction required the government to prove beyond a reasonable doubt Nunez's knowing and willful participation in the criminal venture.3 

Viewing the instructions as a whole, the jury was instructed that the government had to prove that Nunez knowingly joined the conspiracy and intended to help carry it out. Although the instructions did not explicitly use the term "mere presence," they sufficiently warned the jury not to convict Nunez if it found that he did not possess the requisite intent. Therefore, the instructions adequately covered Nunez's defense theory, and the district court did not err by refusing to give Nunez's instruction. Cf. Chen, No. 90-10434, slip op. at 6515-16 ("bad memory" instruction not necessary when district court gave adequate instruction on specific intent); United States v. Dorotich, 900 F.2d 192, 193-94 (9th Cir. 1990) ("good faith belief" instruction not required when instruction on specific intent given).4 

Permissible Inferences

Nunez requested the district court to instruct the jury that its conclusions could not be based on multiple layers of inferences, or evidence which was uncertain or speculative. Nunez's proposed instruction was drawn from United States v. Ross, 92 U.S. 281 (1875), which prohibited the Court of Claims from making conclusions of law based on inferences drawn from other inferences. Id. at 283. The principle of Ross has no bearing on jury instructions, but relates to whether the evidence was sufficient to support a finding by the fact finder. Id. at 284. Therefore, the district court did not err by refusing to give the proposed instruction.

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, appellant'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 appellant refers to himself as Mr. Nunez in his brief. We defer to the appellant's choice of self-identification, despite the government's assertion to the contrary

 2

We have not resolved the applicable standard of review for whether the district court's instructions adequately cover the defense theory. Compare Mason, 902 F.2d at 1438 (de novo review) with United States v. Wagner, 834 F.2d 1474, 1487 (9th Cir. 1987) (abuse of discretion). We need not resolve the issue today because under either standard, Nunez's claim fails. See United States v. Knott, 894 F.2d 1119, 1121 (9th Cir.), cert. denied, 111 S. Ct. 197 (1990)

 3

Instruction 12 explained to the jury that "it is not enough that [people] simply met, discussed matters of common interest, acted in similar ways or perhaps helped one another."

 4

Furthermore, the evidence indicated that Nunez's participation in the criminal conduct extended beyond merely being present at the scene. He carried eight kilograms of cocaine out to the car and was designated to give cocaine to Juan Mendoza. The district court stated, "I don't feel that the factual background in this case would require the mere presence instruction." ER 4 (277)