Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

MEMORANDUM^* 

Diaz-Reyes appeals his convictions for conspiracy to distribute, and to possess with intent to distribute, cocaine and for possession of more than five kilos of cocaine with intent to distribute. Diaz-Reyes contends that: (1) the Assistant United States Attorney's ("AUSA") misconduct in three instances prejudiced Diaz-Reyes and undermined the fairness of the trial; (2) the trial court failed to cure the AUSA's prejudicial references to facts not in evidence; (3) the trial court's admission of hearsay testimony violated Diaz-Reyes' Sixth Amendment right to confront witnesses against him. Diaz-Reyes argues that any one of these errors constitutes reversible error or, in the alternative, that their cumulative effect warrants reversal of his convictions.

We affirm.

ANALYSIS

Brady v. Maryland, 373 U.S. 83, 87 (1963), requires the prosecution to disclose evidence favorable to the accused. However, Diaz-Reyes may not secure a reversal of his conviction simply by showing that the prosecution failed to disclose any favorable evidence, no matter how insignificant. See United States v. Bagley, 473 U.S. 667, 675 n. 7 (1984). He must show that the withheld evidence was material. United States v. Agurs, 427 U.S. 97, 104 (1976). Evidence is material, and thus reversal is appropriate, "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S., at 682. See also Agurs, 427 U.S. at 104 (withheld evidence material if it creates a reasonable doubt of guilt that did not exist otherwise).

We need not decide here whether the AUSA misrepresented the hearsay declarant's identity: the result of the proceeding would not have been different had the defense known from the beginning that Diaz-Reyes was not the actual declarant. The declarant's true identity became known during the trial, allowing the defense to make full use of the information for purposes of impeachment.

In addition, the judge had an opportunity to counter any harmful effects of the hearsay witness's testimony. The judge's instructions to the jury properly narrowed the testimony to exclude its use to prove the truth of the matter asserted. The AUSA's improper referrence to the testimony in closing arguments to support "the truth of the matter asserted" was offset by the judge's jury instruction.

Moreover, there was ample evidence presented to support Diaz-Reyes' convictions. Witnesses testified to Diaz-Reyes' statements upon arrest. Government agents had seen Diaz-Reyes carry a black bag from his apartment to Carvajal's car, which Diaz-Reyes then drove to a restaurant where it had been prearranged that he would meet McDonald. When the under-cover agent asked where the cocaine was, Diaz-Reyes opened the trunk and pointed to the black bag, which was then found to contain drugs. The agents did not detect any surprise on Diaz-Reyes' face when they opened the bag and took out a sample of cocaine.

We apply the Brady-Agurs standard to determine whether deportation of a defense witness requires reversal of a conviction. United States v. Valenzuela-Bernal, 458 U.S. 858, 868 (1981). There must be a reasonable likelihood that the testimony could have affected the judgment of the trier of fact. Id. at 874 (citations omitted).

Diaz-Reyes made a pretrial motion to dismiss the indictment because the government had deported a defense witness. The district court's denial of this motion was proper. The testimony of the unavailable witness would have been cumulative. Moreover, ample evidence, other than the hearsay statement erroneously attributed to Diaz-Reyes, supported the judge's determination to deny the motion to dismiss.

Impeachment evidence is subject to the Brady disclosure requirement. Bagley, 473 U.S. 667, 682 (1984). That evidence must be material, such that disclosure would have led to a different result at trial, to justify reversing. Id. In this case, the jury was informed of payments from the government to McDonald totalling $11,000, and the defense was made aware of the additional $5000 payment before cross-examining McDonald. The defense used this information during the trial and in closing arguments to impeach McDonald.

Diaz-Reyes was not unduly prejudiced by the delay in disclosure.

The Federal Rules of Evidence allow a defendant to offer evidence of character through opinion or reputation testimony. Fed.R.Evid. 404(a). Diaz-Reyes placed his character for truthfulness and honesty in issue by presenting testimony on that issue. It was not improper for the AUSA on cross-examination of defendant's character witness to ask the witness if she knew that Diaz-Reyes was an illegal alien; the Rules permit inquiry into relevant specific conduct. Fed.R.Evid. 405(a) The character witness's ignorance of Diaz-Reyes' illegal status was relevant to his credibility. Moreover, the judge gave cautionary instructions to the jurors so that they were aware of the proper use to which this information could be put.

The government may not vouch for the credibility of its witnesses by indicating that extrinsic information not presented in Court supports the witness's testimony. United States v. Simtob, 901 F.2d 799, 805 (9th Cir. 1990) (citations omitted). McDonald's testimony may have been bolstered by the AUSA's showing the jury a tape recording that was not admitted into evidence and referring to its accuracy. The trial judge, however, instructed the jury extensively that they were to draw no conclusions from the tape or its contents. The judge's action cured any prejudicial effect that would otherwise have resulted from the AUSA's conduct and remarks regarding the tapes. See Simtob, 901 F.2d at 806 (appropriate curative instructions may neutralize prosecutorial misconduct).² 

We review the decision whether to admit expert testimony only for manifest error or an abuse of discretion. Salem v. United States Lines Co., 370 U.S. 31, 35 (1962) (manifest error); United States v. Kinsey, 843 F.2d 383, 388 (9th Cir.) (manifest error), cert. denied, 487 U.S. 1223 (1988); United States v. Tsinnijinnie, 601 F.2d 1035 (9th Cir. 1979) (abuse of discretion), cert. denied, 445 U.S. 966 (1980). The trial judge was well within his discretion in excluding the testimony; the tape the expert would have testified about was not in evidence. Instead of highlighting the existence of the tape, the judge chose to cure any possible vouching error through a corrective jury instruction.

The district court admitted testimony of Agent Hall over defense counsel's hearsay objection. Agent Hall testified that government informant McDonald had told him that Diaz-Reyes and another, unknown man had been at Carvajal's apartment and that "they" had told McDonald that they were there to buy cocaine. It later became clear that only the unknown man had spoken to McDonald.

The trial judge admitted Hall's testimony, not for its truth, but to test the "veracity" of Hall's assumption that Diaz-Reyes had been at Carvajal's apartment. The jury was informed that the statement was not admitted for its truth, but only to establish state of mind. Diaz-Reyes argues, with some force, that the state of mind of Agent Hall was never in issue. Defense counsel had, however, inquired of Agent Hall whether he was making an unsupported assumtion that Diaz-Reyes had been at Carvajal's apartment; the government argues that this questioning opened up the subject. The district court appears to have concluded that Agent Hall's state of mind was in issue, and we cannot say that the court exceeded its discretion in so deciding. Since the statement was not admitted for its truth, it was not hearsay. Fed. R. Evid. 801(c); see United States v. Kirk, 844 F.2d 660, 663 (9th cir.), cert. denied, 488 U.S. 890 (1988).³ 

In addressing Diaz-Reyes' charge of cumulative prejudicial error, we consider all errors and instances of prosecutorial misconduct which were preserved for appeal with a proper objection or which were plain error. United States v. Berry, 627 F.2d 193, 200 (9th Cir. 1980), cert. denied, 449 U.S. 1113 (1981). We will also consider errors and instances of misconduct which were adequately cured by the court's instruction; a trace of prejudice may remain even after a proper instruction is given. If we find a residue of prejudice, we will take it into account. Id.

Where nonconstitutional error is charged, we will affirm the district court's judgment if the error is more probably harmless than not. See United States v. Valle-Valdez, 554 F.2d 911, 915 (9th Cir. 1977). The potential errors on prosecutorial misconduct, vouching, and admission of inadmissible hearsay, even if taken together, were harmless and unlikely to have materially prejudiced the jury given the highly incriminating evidence of Diaz-Reyes' own testimony, his statement upon arrest, the physical evidence, and the testimony of several witnesses.

We hold that there was no cumulative prejudice and affirm the conviction.