NOTICE: THIS IS AN UNPUBLISHED
OPINION.
v.
Keith A. HARRIS,
Defendant-Appellant.
No. 94-30326.
Argued and Submitted
Decided
Appeal from the United States
District Court, for the Eastern District of Washington, DC No. CR-94-00108-WFN;
William Fremming Nielsen ,
District Judge, Presiding . [ The United States was represented by U.S.
Attorney Frank Wilson, The Defendant was represented by John A. Maxwell Jr. of
Meyer, Fluegge and Tenney P.S. of Yakima, Washington ] - ed. note.
E.D.Wash.
REVERSED IN PART ,
AFFIRMED IN PART .
Before: BROWNING, BOOCHEVER, and
T.G. NELSON , Circuit Judges.
MEMORANDUM FN*
*1 Keith Harris was convicted after
a jury trial of conspiracy to possess with intent to distribute heroin and one
count of possession with intent to distribute, based largely on the testimony
of Kathleen Lopez, a confidential informant. He appeals his conviction and
sentence on multiple grounds.
I. Sufficiency of the evidence
“The evidence is sufficient to
support a conviction as long as, viewing the evidence in the light most
favorable to the government, a rational jury could have found the defendants
guilty beyond a reasonable doubt of each element of the crime.”
A. Possession with intent to
distribute: Count 6
Harris argues that there was
insufficient evidence that he possessed heroin with intent to distribute on
There was other evidence in the
record regarding the delivery of the heroin on October 8. The jury heard a
taped telephone conversation on the morning of October 8, in which Lopez and
Harris discussed their plans to meet that evening at a rest area, and Harris
said he needed to collect some money from other people or “I'm gonna be a little short.” A DEA agent surveilled
the rest area that evening, and testified that he saw Harris arrive late and
observed a “delivery” of heroin from Lopez and Lidio
Mercado to Harris, although he did not testify about
the details or that he actually saw heroin change hands. Viewing the evidence
in the light most favorable to the government, we find there was sufficient
evidence to sustain a conviction for a transaction on that date.
B. Conspiracy to possess with intent
to distribute
Harris argues that the evidence
establishes only a buyer-seller relationship between him and the two brothers Lidio and Santos Mercado. He points out that there was no
direct evidence of an agreement between him and Lidio.
Harris contends that his only contact was Lopez, and because Lopez was a
government agent with whom he cannot conspire, there is insufficient evidence
that he ever conspired with anyone to distribute the heroin.
The essential elements of conspiracy
under 21 U.S.C. § 846 are an agreement to accomplish an illegal objective and
the intent to commit the substantive offense. See
*2 A simple
buyer-seller relationship is not the same as a conspiracy to distribute. This
court recently found that a defendant who grew marijuana on his own and then
gave and sold some to friends had not been shown guilty of a conspiracy.
[P]roof that a defendant sold drugs
to other individuals does not prove the existence of a conspiracy.... [C]onspiracy requires proof of an agreement to commit a crime
other than the crime that consists of the sale itself. Were the rule otherwise,
every narcotics sale would constitute a conspiracy.
In a conspiracy to sell drugs, the
supplier must know he is supplying a dealer.... To show a conspiracy, the
government must show not only that [the defendant] gave drugs to other people
knowing that they would further distribute them, but also that he had an
agreement with these individuals to so further distribute the drugs.
Unlike the defendant in Lennick, Harris was not the original source of the drugs.
Instead, he was in the position of those who purchased the marijuana from a
seller. Further, there was evidence in the record that Harris, unlike the
buyers in Lennick, himself distributed the drugs he bought. Lopez testified
that Harris told her he sold the heroin to “people at the college; that he sold
it to people from out of state; that he had clients coming from Idaho and from
Montana; truckers.” Transcripts of taped telephone conversations played for the
jury show that Harris waited for payment from others before purchasing the
heroin.
In addition to the evidence of
resale, there was testimony that the Mercados
“fronted” drugs to Harris, delivering the drugs but waiting for later payment
when Harris was unable to come up with the cash. This kind of credit
arrangement is evidence supporting a finding of cooperation and partnership in
a long-term distribution relationship. See
*3 Further, even though Harris
insists his only “agreement” was with Lopez, circumstantial evidence exists
from which a jury could conclude that he and Lidio had
a common understanding. First, although much direct communication between Lidio and Harris was prevented by their language barrier,
Harris would call Lidio, not Lopez, to set the
individual transactions in motion. Second, the extension of credit to Harris
was by Lidio, not Lopez, as Lopez gave the purchase
money to the Mercados and received a separate fee for
her services. For example, the car was intended for Lidio,
not Lopez. Third, because Lopez did not drive, Lidio
drove her to most of the transactions with Harris, although the actual delivery
of the heroin was done by Lopez.
Lidio knew Harris, received calls from
Harris, spoke of Harris, controlled the method of payment, fronted drugs to
Harris, was aware of all the details of the transactions with Harris, and was
present at many of the deliveries. While there is no direct evidence that Lidio knew Harris was distributing the heroin to others,
Lopez testified directly that she knew, and she was in close contact with the Mercados as their go-between and translator. The
circumstantial evidence supports an inference that Harris agreed with Lidio to distribute the heroin. “The high degree of
coordination between [the defendant and his alleged coconspirator] is
sufficient evidence from which a jury could find agreement.” Hegwood, 977 F.2d at 497. See
United States v. Kozinski, 16 F.3d 795, 808-09 (7th
Cir.1994) (evidence necessary to support agreement to distribute includes
transactions in large quantities of drugs, prolonged cooperation and
“fronting,” and standardized transactions); United States v. Medina, 944 F.2d
60, 65-66 (2d Cir.1991) (advance planning to deal in wholesale quantity of
drugs supports broader conspiracy, not buyer-seller relationship), cert.
denied, 503 U.S. 949 (1992).
The evidence shows the type of
“chain” conspiracy common in drug distribution cases, in which each defendant,
whether importer, supplier, or street distributor, “knew of each other's
participation in the illegal enterprise and benefitted
from it.”
[t]he government need not show
direct contact or explicit agreement between the defendants. It is sufficient
to show that each defendant knew or had reason to know of the scope of the
conspiracy and that each defendant had reason to believe that [his] own
benefits were dependent upon the success of the entire venture.
*4 Finally,
the indictment alleges a conspiracy beginning in June, 1993. Because Lopez did
not become a government informant until September 1993, the jury could find
that Lopez' agreement with Harris to distribute heroin constituted a conspiracy
during June, July, and August 1993. There was evidence at trial that Lopez
arranged from jail for Lidio to make at least one
delivery of heroin to Harris in July 1993.
We find there was sufficient
evidence for a properly instructed jury to find that Harris conspired to
possess heroin with intent to distribute. Although there was sufficient
evidence from which a jury could decide that Harris was guilty of conspiracy,
Harris contends that he was entitled to an instruction on his competing theory
of the case.
II. Buyer-seller instruction
Harris requested an instruction
indicating that if there was only a buyer-seller relationship he could not be
found guilty of conspiracy. “[F]ailure to instruct
the jury on the defendant's theory of the case, where there is evidence to
support such instruction, is reversible per se and can never be considered
harmless error.”
The conspiracy instruction given by
the district court did not make any explicit reference to the difference
between merely buying heroin from an individual and conspiring with that
individual to distribute heroin, nor did it explain how distribution differs
from purchase or sale. The difference is not easily discerned. This case
presented the additional complication that Lopez did not qualify as a
coconspirator during her time as a government agent, a proposition stated only
at the end of the general conspiracy instruction. Under these circumstances,
the general instruction was not enough to cover the buyer-seller defense.
[A] standard
instruction on the elements of a conspiracy is not sufficient to inform the
jury of the [buyer-seller] theory of the case. Had the jury been properly
focused, via proper instructions, on the legal distinctions between a
conspiracy to distribute marijuana and a mere buyer-seller relationship, the
jury may well have found a buyer-seller relationship in this case. The failure
to properly instruct the jury therefore denied the defendant a fair trial on
[the conspiracy count].
Because the instructions given did
not cover the buyer-seller defense, the district court was required to give
Harris' proposed instruction if there was any evidence to support it, even if
the evidence was “ ‘weak, insufficient, inconsistent or of doubtful
credibility.’ ” Zuniga, 6 F.3d at 570 (quoting
*5 In this
case, Lopez' ineligibility as a coconspirator left open the possibility that
Harris had merely a buyer-seller relationship with the only alleged
coconspirator, Lidio. The facts sufficiently support
the theory to require the giving of the instruction. We therefore reverse
Harris' conviction for conspiracy to possess with intent to distribute.
III. Other issues
A. Lopez' notes
“The trial court has wide limits of
discretion in its decisions to permit the prosecution to refresh the memory of
a witness[, and] [a]bsent
clear injustice, that discretion will not be abridged.”
We find no abuse of discretion in
allowing Lopez to refer to her notes. Although Lopez looked at her notes at
least six times during her testimony, the district court cautioned the jury, in
judging her credibility, to weigh whether Lopez was refreshing her recollection
or simply reading.
Further, the only individual
transaction of which the jury convicted Harris was Count 6. Lopez had no notes
at all regarding Count 6. The jury's acquittal on all the other counts may well
indicate it did not rely on Lopez' testimony when she referred to her notes. No
clear injustice appears on this record.
B. DEA drug violator classification
This court reviews the district
court's admission of Agent Weeks' testimony regarding Harris' Class Three
classification for an abuse of discretion.
Testimony regarding how a defendant
fits a profile of a typical offender is generally inadmissible as substantive
evidence of guilt.
In this case, the testimony that the
DEA considered Harris a Class Three violator came directly after Agent Weeks
testified that the DEA considered the Mercados to be
Class One violators, and was offered for the purpose of explaining how the DEA
viewed the relative positions of Harris and the Mercados.
As such, the testimony was evidence of how the DEA constructed the
investigation, with the Mercados as the prime
targets, and why the DEA did not seize the heroin from Harris. See
C. Vouching
“Vouching consists of placing the
prestige of the government behind a witness through personal assurances of the
witness' veracity, or suggesting that information not presented to the jury
supports the witness's testimony.”
*6 no bright-line rule about when
vouching will result in reversal. Rather, we consider a number of factors
including: the form of vouching; how much the vouching implies that the
prosecutor has extra-record knowledge of or the capacity to monitor the witness's
truthfulness; any inference that the court is monitoring the witness's
veracity; the degree of personal opinion asserted; the timing of the vouching;
the extent to which the witness's credibility was attacked; the specificity and
timing of a curative instruction; the importance of the witness's testimony and
the vouching to the case overall. When reviewing for plain error, we then
balance the seriousness of the vouching against the strength of the curative
instruction and closeness of the case.
First, Harris claims the prosecution
improperly expressed its belief that Lopez was telling the truth when Agent
Weeks testified that all Lopez' information had been verified and
substantiated, and when Weeks then answered “To my knowledge, no” when asked
whether Lopez ever provided false information to him. Harris objected at trial.
This was not improper vouching. Agent Weeks merely stated that he had been able
to verify the information that Lopez provided. It does not appear to be a
statement of personal opinion regarding her truthfulness.
Harris also identifies as improper a
number of the prosecution's statements in final argument. He objected when the
prosecution pointed out that Lopez' arson charges already had been dismissed,
so that Lopez did not “need” Harris' case to avoid prosecution. This statement
suggests that Lopez did not have a motive to lie. It does not, however, imply
that the prosecutor knows she was truthful or has a personal opinion about her
truthfulness.
Harris did not object to, but
assigns as plain error, the prosecution's statements that to find Harris innocent, the jury “would have to find Kathleen Lopez and Lidio Mercado lied to you. You're going to have to believe
that because their testimony was strong and based on their demeanor, truthful
about their dealing heroin to the defendant,” that the information Lopez
provided was verified, and “did Kathleen Lopez ever provide false information
to you concerning the activities of Lidio Mercado or
Keith Harris? No.”
These last remarks were not plain
error. The prosecution simply repeated all the evidence verifying Lopez'
statements, and then summarized it by stating that based on the testimony and
demeanor of the witnesses the jury would have to believe Lopez testified
truthfully. The defense argued in opening statements that Lopez was an
unreliable witness with “substantial reasons to fabricate” who “starts telling
lies about Mr. Harris to make [her “successful prosecutions”] an even three,”
and warned the jury to watch “her body language.” Given the prosecutor's
latitude in closing argument, the lack of reference to personal opinion, the
defense's all-out attack on Lopez' credibility, and the context of closing
argument, it is not a miscarriage of justice to fail to reverse Harris'
conviction on this basis. Necoechea, 986 F.2d at 1276.
D. Outrageous government conduct
*7 “To violate due process,
governmental conduct must be ‘so grossly shocking and so outrageous as to
violate the universal sense of justice.’ ”
1. Lopez' agreement with the DEA
Harris argues that Lopez' agreement
with the DEA makes the withdrawal of the arson charge against her contingent on
the “successful prosecution,” or conviction, of Harris, thus giving her a
powerful incentive to testify untruthfully to ensure a finding of guilty.
Lopez' arson charge was dropped before trial began, so this incentive would not
have affected her trial testimony.
2. Payments to Lopez
Harris objects to the DEA's payment of approximately $2,670 to Lopez, $500 of
which she received when the Mercados were arrested.
Such payments do not violate due process. See
3. Lopez' role in the transactions.
Harris states that Lopez “developed”
the individual transactions. Because the record shows that Harris himself
initiated the transactions by an initial call to Lidio,
however, we reject this argument. In addition, Harris was already involved in
the purchase of heroin from the Mercados when Lopez
entered into the contingency agreement. See
4. Government payment for Lopez'
methadone
The government apparently gave Lopez
a voucher to get her methadone when she came from
5. Lopez' use of narcotics
Contrary to the terms of her
agreement with the government, Lopez continued to use heroin after her release
from jail. The government did not know of this use until a month before trial.
Harris also complains that the government did not monitor Lopez' use of drugs.
This does not amount to outrageous government conduct. See Barrera-Moreno, 951
F.2d at 1092 (no due process violation in failure to be aware of and stop
informant's drug use).
6. Lopez' two felony drug
convictions
*8 While her criminal history may
bear on Lopez' credibility, it does not constitute outrageous government
conduct to use an informant who has felony convictions.
7. Failure to demonstrate actual
delivery
Harris complains that no actual
delivery of the heroin was observed by the DEA agents. This was also argued at
trial, and goes to the strength of the government's case, not the propriety of
its use of Lopez.
We find no outrageous government
conduct.
E. Search warrant
Harris claims the affidavit
submitted in support of the search warrant issued for his home was too stale to
support probable cause, and that material omissions occurred. We review the
magistrate's issuance of a search warrant for clear error, United States v.
Bertrand, 926 F.2d 838, 841 (9th Cir.1991), giving deference to the issuing
magistrate's determination of probable cause. See
Harris attempts to incorporate by
reference the arguments (including staleness) that he made in his motion before
the district court. We do not consider these arguments, as Ninth Circuit Rule
28-3.2 provides: “Parties must not append or incorporate by reference briefs
submitted to the district court ... or refer this Court to such briefs for their
arguments on the merits of the appeal.”
Harris also makes an argument he did
not raise below, that the affidavit “contained misleading conclusions that
heroin was delivered to Harris.” Harris identifies a number of what he calls
misleading omissions, most of which are related to Lopez' credibility. Because
he raised none of these below, this court reviews for plain error. None of the
alleged omissions was plain error.
F. Communications with the jury
Instruction 4 is the separate crime
instruction, which explains that each charge should be considered separately;
Instructions 11 and 12 explain the individual counts and the requirements for
conviction on them. Harris complains that the district court overemphasized
these instructions when it responded to the jury's question during
deliberations.
The jury had all the instructions
before them. They asked about the individual counts and were referred to the
instructions specifically dealing with those counts. We find no abuse of
discretion. See
G. Amount of heroin for sentencing
purposes
Because we reverse Harris'
conviction for conspiracy, we need not review the district court's factual
finding regarding the amount of heroin involved in the conspiracy.
H. Vindictive prosecution
In his pro se brief, Harris argues
that it was prosecutorial vindictiveness to file the second indictment against
him after Lidio Mercado pled guilty and Harris
refused to do the same. Because this issue was not raised below, we review it
for plain error.
*9 The Supreme Court has held that
in the give-and-take inherent in the plea bargaining context, there is no
punishment or retaliation when the government obtains a superseding indictment
with additional charges, after the defendant rejects a plea bargain. Bordenkircher v.
Hayes, 434
CONCLUSION
We reverse Harris' conviction for
conspiracy to possess with intent to distribute. We affirm his conviction for
possession with intent to distribute.
REVERSED IN PART
FN* 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.
C.A.9 (
65 F.3d 177 (Table),