Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Submitted on the Briefs as to 87-5086.
Argued and Submitted Sept. 14, 1990.
Appeal from the United States District Court for the Central District of California; Wm. Matthew Byrne, Jr., District Judge, Presiding.
C.D.Cal.
AFFIRMED.
Before FLETCHER, WIGGINS and RYMER, Circuit Judges.
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.
Srikarn Srisookko, Wuthichai Kachanon, Suracek Kachanon, Vivat Jamawat, and Vitaya Phosritong were charged in a nineteen count indictment with offenses relating to an alleged conspiracy to deal in heroin. A jury found all defendants guilty, and the court entered judgment on the verdict. They now appeal and we affirm.
Wuthichai Kachanon has appealed the sentence imposed in his case, contending that the special parole term was illegal. By a separate order we are requesting further briefing on this issue and we accordingly reserve our disposition as to it.
I
The transactions involved in this case began in 1985, when Kriengkrai Thepkulcohon ("Piac") approached government informant Karin Jongpatchote ("Yai"), and asked if Yai could find a buyer for some heroin. Yai subsequently met with DEA Special Agent Thomas Aiu and told him about Piac's request.
In January 1986, Piac gave Yai a sample of heroin to show to his buyer. Yai then introduced Piac to Aiu, who purchased the heroin.
A few weeks later, Piac told Yai he wanted to arrange another transaction. This time, Aiu and DEA Special Agent Brian Lee met with Piac and appellant Srikarn Srisookko. Srisookko asked Lee whether he wanted to purchase large quantities of heroin and told him that the price would be $80,000 for a pound of heroin, and that he could supply as much as 20 kilograms of heroin from Bangkok. After this meeting, Srisookko and Piac participated in two heroin transactions with Aiu and Lee: the first for $5,000, and the second for $80,000.
Srisookko then proposed a larger sale. The DEA agents agreed to buy, but because the DEA did not have the funds to pay for the heroin, the agents arranged for it to be seized just prior to the sale. The day before the scheduled sale, Yai and Wuthichai Kachanon went to Srisookko's house, and Srisookko put the heroin in the trunk of Yai's car. After Yai and Wuthichai Kachanon left the house, the police stopped them and seized the heroin. However, they were arrested and released, as prearranged by the DEA.
In April, Srisookko met with Aiu and Lee and told them he had three pounds of heroin for sale. He told them that after that transaction, he wanted to sell them seven pounds, and then fifteen pounds. The agents agreed to the three-pound transaction. However, they again arranged for it to be seized just prior to the sale. This time, police surrounded the car belonging to Jamawat, whom Srisookko had indicated was his source, and seized the heroin in the car while Jamawat was meeting with Srisookko and Yai. The three fled the scene.
In his next meeting with Aiu and Lee, Srisookko said he would be travelling to Bangkok to obtain fifteen kilograms of heroin. Srisookko, Wuthichai Kachanon, and Yai then flew to Honolulu, where Lee showed them a bag containing one million dollars in cash and paid them $7,000 for several samples of heroin they had provided.
In May 1986, Srisookko, Wuthichai Kachanon, and Yai flew to Bangkok, where Wuthichai Kachanon's uncle, Suracek Kachanon, joined them. In June, Nachainarong ("Jack") Pechtes and Phosritong gave money to Srisookko to invest in heroin. Suracek and Wuthichai told Yai they would try to obtain heroin, but they were unable to locate a supplier on acceptable terms. One supplier attempted to sell Suracek and Wuthichai fake heroin. Thereafter, Suracek told Yai they would rely on him to find a supplier, but continue in the operation as financial backers.
Srisookko, meanwhile, had obtained heroin from Pechtes. In October 1986, Yai, Srisookko, and DEA Special Agent Best, who had worked with Yai in Bangkok, flew to San Francisco. Best carried the three pounds of heroin Srisookko had obtained in Bangkok. Yai told Srisookko that his former girlfriend was helping them get through customs.
Yai then flew to Los Angeles, where he met with Wuthichai Kachanon, Suracek Kachanon, and Lee. They arranged for a sale on October 21. On that day, Srisookko and Phosritong went to the Century Plaza hotel to meet Aiu, Lee, Wong, and Yai. The agents arrested them there. They confiscated Srisookko's bag, which contained a gun. They then searched their van and found another gun.
Wuthichai and Suracek Kachanon were arrested at Wuthichai's restaurant in Los Angeles. At the time of the arrest, police found a gun in Wuthichai's car.
II
A. Sufficiency of the Evidence to Support the Convictions
Srisookko, Suracek Kachanon, and Jamawat contend that the evidence produced at trial was insufficient to support their convictions. Evidence is sufficient to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988) (citation omitted); United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.1988), cert. denied, 110 S.Ct. 179 (1989).
1. Srisookko
Srisookko claims the government did not present sufficient evidence to sustain his conviction for engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 in that it failed to prove he acted as organizer, supervisor or manager, or obtained substantial income or resources from the activity. See United States v. Sterling, 742 F.2d 521, 525 (9th Cir.1984),cert. denied, 471 U.S. 1099 (1985).
Srisookko's argument that a reasonable jury could not have determined that he obtained substantial income is without merit. The government introduced evidence that Srisookko received over $80,000 in cash in one year from government agents in return for heroin. That is sufficiently "substantial." See, e.g., United States v. Gantt, 617 F.2d 831, 847 (D.C.Cir.1980); United States v. Losada, 674 F.2d 167, 173 (2d Cir.1982),cert. denied, 457 U.S. 1125 (1982); United States v. Thomas, 632 F.2d 837, 847 (10th Cir.1980), cert. denied, 449 U.S. 960 (1980).
Next, Srisookko claims the evidence did not show he was an organizer, supervisor, or manager of the operation. The defendant need not be the "sole manager" or "dominant organizer, as long as the defendant was in some managerial position." United States v. Zavala, 622 F.Supp. 319, 328 (N.D.Cal.1985), aff'd, 839 F.2d 523 (9th Cir.), cert. denied, 488 U.S. 831 (1988).
The government introduced evidence that Srisookko planned and directed the actions of his coconspirators, obtained funds for transactions, arranged security for sales, accepted payments, located sources of heroin both in the United States and in Bangkok, and negotiated sales. Upon meeting Aiu and Lee, Srisookko told them his business was heroin trafficking. The evidence thus painted a picture of Srisookko as an active leader of the conspiracy. This was sufficient to allow a reasonable jury to find that he was an organizer, supervisor or manager.
2. Wuthichai Kachanon
Wuthichai Kachanon argues that there was insufficient evidence to convict him of conspiracy because evidence that he thought he was working for the DEA rebutted the intent element. The government has the burden of showing an agreement to commit an illegal act and an overt act in furtherance of the agreement, as well as intent to commit the underlying offense. United States v. Becker, 720 F.2d 1033, 1035 (9th Cir.1983). The jury reasonably could have concluded as it did, given testimony by several witnesses as to Wuthichai's activities and involvement in the heroin trafficking conspiracy, and Yai's testimony that he never asked Wuthichai to become an informant for the DEA.
3. Suracek Kachanon
Suracek Kachanon claims the evidence was insufficient to convict him of conspiracy, because the only evidence connecting him to the conspiracy came from informant Yai's uncorroborated testimony. However, "[t]he credibility of witnesses is a matter for the jury, not an appellate court." Lyda v. United States, 321 F.2d 788, 794 (9th Cir.1963) (citing United States v. Verra, 301 F.2d 381 (2d Cir.1962)). Yai was not a coconspirator or accomplice whose testimony required corroboration. Cf. Bourjaily v. United States, 483 U.S. 171, 175 (1987).
Yai's testimony, which a reasonable jury could have believed, was that Suracek met with Yai in Bangkok and said he would find a supplier of heroin; the two attended a meeting at which Suracek attempted to purchase heroin; Suracek told Yai he had found a supplier and that the heroin must be purchased with cash; Suracek gave Yai two cashiers checks for one million baht as a deposit on the heroin; Suracek flew from Bangkok to the United States, where he was to receive his share of the proceeds; and Yai met with Suracek in the United States and told him he would be paid first. This testimony was sufficient to enable a reasonable jury to find Suracek guilty of the conspiracy charge.
4. Jamawat
Jamawat similarly argues that the evidence was insufficient to convict him of conspiracy because the only evidence connecting him to the conspiracy came from informant Yai's uncorroborated testimony. As in Suracek Kachanon's case, the jury was entitled to believe Yai's testimony. Furthermore, in Jamawat's case, there was corroborating evidence implicating him in the conspiracy.
The evidence showed that: Srisookko told Yai that Jamawat was the source of the heroin; Jamawat met Srisookko and Yai at a rendezvous point for a heroin sale; Jamawat told Yai he put the heroin on the passenger side of the car; police seized three pounds of heroin from the car; and 35 calls were made from Srisookko's telephone number to Jamawat's telephone number immediately prior to one of the heroin sales. This evidence was sufficient to allow a reasonable jury to connect Jamawat to the conspiracy.
B. Jury Instructions
1. Failure to Give Accomplice Instruction
Phosritong argues that the district court committed reversible error in failing to give a cautionary accomplice instruction to the jury regarding the testimony of Jack Pechtes, who testified that Phosritong sent him $8,000 in Thailand for the purpose of obtaining narcotics. See Williamson v. United States, 332 F.2d 123, 132-34 (5th Cir.1964). Phosritong does not contend, and the record does not suggest, that defense counsel requested such an instruction or made any objection to the failure of the court to give such an instruction.
When the defendant has not specifically requested a cautionary accomplice instruction, to prevail on appeal he must demonstrate that the trial judge's failure to give an accomplice instruction on his own constitutes plain error. United States v. Johnson, 415 F.2d 653, 655 (9th Cir.1969), cert. denied, 396 U.S. 1019 (1970); Caldwell v. United States, 405 F.2d 613, 615 (9th Cir.), cert. denied, 394 U.S. 1004 (1969). Plain error is found only in exceptional circumstances. United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989). It is well settled in the Ninth Circuit that where an accomplice instruction is not requested, as in this case, it is not plain error not to give one sua sponte. United States v. Gere, 662 F.2d 1291, 1295 (9th Cir.1981); DeCarlo v. United States, 422 F.2d 237, 240-41 (9th Cir.1970); Johnson, 415 F.2d at 655; Caldwell, 405 F.2d at 615.
Phosritong relies upon Williamson v. United States, 332 F.2d 123 (5th Cir.1964), for the proposition that a failure to give an accomplice instruction can constitute reversible error even if not requested by defense counsel. In Caldwell v. United States, however, we rejected a similar argument, also premised upon the Fifth Circuit's decision in Williamson. Caldwell emphasized the Fifth Circuit's admission that Williamson was an "exceptional case." In Williamson, the government's case was made entirely by the accomplice, there were glaring inconsistencies in the testimony of the accomplice, the accomplice on the eve of trial offered to produce certain documents for the defense if he were paid $5000.00, and the court's instructions as to other matters did not give sufficient guidance to the jury. Caldwell, 405 F.2d at 615-16. Because "the special facts that existed in Williamson do not exist here ... [there is] no reason to depart from the general rule that failure by a judge to give a cautionary accomplice instruction on his own motion does not constitute reversible error." Id.
2. Instruction Regarding Defendant's Belief
Phosritong also contends that the district court erred in instructing the jury regarding the defense theory that several of the defendants engaged in the drug activities in the belief that they were assisting the DEA. The court's instruction required a finding of a reasonable good faith belief. Phosritong's counsel objected on the grounds that the jury should be able to consider the defendant's belief, whether or not it was reasonable.
Phosritong suggests that the qualifying language regarding the need for objective reasonableness shifted the burden of proof from the prosecution to the defendant to prove a lack of intent, Citing Dietz v. Solem, 640 F.2d 126 (8th Cir.1981); Mann v. United States, 319 F.2d 404 (5th Cir.1963),cert. denied, 375 U.S. 986 (1964), and that the objective reasonableness instruction conflicted with the court's instruction regarding intent, thereby confusing the jury. See Powell v. United States, 347 F.2d 156 (9th Cir.1965) (reversing conviction where "the charge taken as a whole was such as to confuse or leave an erroneous impression in the minds of the jurors.")
We review jury instructions for abuse of discretion, considering them in the context of the overall charge to the jury. United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), amended, 872 F.2d 334 (9th Cir.), cert. denied, 110 S.Ct. 71 (1989). Viewed in the context of the jury instructions as a whole, the challenged instruction was not an abuse of discretion. The court's instructions clearly set forth the government's burden of proof and the element of intent. Unlike Dietz and Mann cited by Phosritong, the challenged instruction here does not go so far as to create a presumption of intent in the absence of evidence to the contrary. Cf. Dietz, 640 F.2d at 131; Mann, 319 F.2d at 407-10. Moreover, the instruction as phrased by the district court is in accordance with the law governing the defense of "apparent authority," the closest analogue to the defense theory asserted here. See United States v. Mason, 902 F.2d 1434, 1438-41 (9th Cir.1990).
III
Denial of Constitutional Right to Effective Assistance of Counsel
Srisookko argues that he was denied his constitutional right to effective assistance of counsel by his counsel's failure to move at trial to suppress statements made by Srisookko, while in custody awaiting trial, to codefendant Pechtes. Srisookko suggests that his statements to Pechtes, whom he characterizes as a government informant, should have been suppressed under Massiah v. United States, 377 U.S. 201 (1964), and its progeny.
To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Popoola, 881 F.2d 811, 813 (9th Cir.1989). "The customary procedure for claims of ineffective assistance of counsel in federal criminal trials is by collateral attack on the conviction under 28 U.S.C. § 2255." United States v. Johnson, 820 F.2d 1065, 1073 (9th Cir.1987). This affords the defendant the opportunity to develop the factual record, giving both himself and the court the "full picture." See, e.g., United States v. Pope, 841 F.2d 954, 958 (9th Cir.1988). A more fully developed record in this case might reveal facts supporting a claim under United States v. Henry, 447 U.S. 264 (1980). Therefore, we decline to consider Srisookko's claim.
IV
Limitation of Cross-Examination of Government Informant
Wuthichai Kachanon and Jamawat contend that the district court committed reversible error in limiting their cross-examination of the government informant Yai regarding Yai's testimony in other cases for the DEA, the monies Yai had received from the DEA for his activities in other cases, and Yai's method of developing a case for the DEA.
A district court's decision regarding the scope of cross-examination will be upheld unless it constitutes an abuse of discretion. United States v. Bonanno, 852 F.2d 434, 439 (9th Cir.1988), cert. denied, 488 U.S. 1016 (1989). A defendant's Sixth Amendment right to confront adverse witnesses through cross-examination is limited to issues relevant to the trial. Id. at 439. However, a restriction of cross-examination may still be error if sufficiently prejudicial. United States v. Feldman, 788 F.2d 544, 554 (9th Cir.1986). Where the prosecution's case depends upon the credibility of its key witness, defense counsel must be given a maximum opportunity to test the credibility of the witness. Evans v. Lewis, 855 F.2d 631, 634 (9th Cir.1988). Once cross-examination reveals sufficient information with which to appraise a witness's possible bias and motives, confrontation demands are satisfied, Bonanno, 852 F.2d at 439; United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.1982), and limitation of cross-examination does not constitute an abuse of discretion, Feldman, 788 F.2d at 354.
Evidence was elicited about payments received by Yai and the various cases worked by Yai in the past. There was testimony that Yai lived quite well off the monies received for his services to the DEA, and that when Yai first came to the United States, the DEA made it possible for him to remain in the country. The jury thus received an adequate presentation of the defendants' theory that Yai had personal and financial incentives to assist the DEA in obtaining narcotics convictions. Evans v. Lewis, 855 F.2d 631, 634 (9th Cir.1988); Feldman, 788 F.2d at 554.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4.
Because only a limitation on the scope of cross-examination is present here, this case is distinguishable from those cited by appellants in which cross-examination on a relevant topic was completely precluded. See, e.g., Chipman v. Mercer, 628 F.2d 528 (9th Cir.1980); United States v. Bleckner, 601 F.2d 382 (9th Cir.1979); United States v. Alvarez-Lopez, 559 F.2d 1155 (9th Cir.1977).
V
Entrapment
Suracek Kachanon argues that the evidence proved entrapment as a matter of law. The court reviews this legal issue de novo. United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986). However, the court must view the evidence in the light most favorable to the government, and decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Citro, 842 F.2d 1149, 1151 (9th Cir.),cert. denied, 488 U.S. 866 (1988).
The elements of entrapment are government trickery, persuasion or fraud, and lack of predisposition. United States v. Citro, 842 F.2d 1149, 1151 (9th Cir.), cert. denied, 488 U.S. 866 (1988). Viewed in the light most favorable to the government, the evidence does not compel a finding of entrapment as a matter of law. First, the informant testified that Suracek claimed he had dealt in narcotics before and had sources for heroin. Second, the evidence supports an inference that it was Wuthichai, not government agents, who first suggested to Suracek that he participate in the criminal enterprise. Third, Suracek Kachanon anticipated a profit. With respect to the fourth, and most important factor, Suracek argues that Yai's testimony that Suracek became frustrated in his attempts to locate a supplier in Bangkok and told him to find a supplier through Srisookko is compelling evidence of his reluctance to engage in the transaction. However, the evidence also shows that, even after telling Yai to "take care of the rest of it," he wanted to remain a financial backer for the transaction and was to be paid first. Thus, the evidence supports the jury's finding that Suracek was not reluctant to engage in the transaction, but merely was frustrated in his attempts to find a supplier.
Suracek contends that Yai used coercive tactics, pushing extraordinarily hard to obtain heroin from Thailand and providing a visa for Suracek's travel to the United States. However, simply persuading Suracek to complete the transaction, and supplying the visa for his travel, does not by itself constitute entrapment. See United States v. North, 746 F.2d 627, 631 (9th Cir.1984) (law enforcement officials working undercover may use "persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward ... artifice, stealth and stratagem .. in order to apprehend persons engaged in criminal activities, provided that they merely afford opportunities or facilities for the commission of the offense by one predisposed or ready to commit it"), cert. denied, 470 U.S. 1058 (1985).
VII
Outrageous Government Conduct
Phosritong, Suracek Kachanon, and Srisookko claim that the government's conduct during the investigation was so outrageous as to violate their rights to due process. The court reviews the district court's denial of the defendants' motion to dismiss the indictment on the grounds of outrageous government conduct de novo, viewing the evidence in the light most favorable to the government and accepting the court's factual findings unless clearly erroneous. United States v. Citro, 842 F.2d 1149, 1152 (9th Cir.), cert. denied, 468 U.S. 866 (1988); United States v. Emmert, 829 F.2d 805, 811 (9th Cir.1987).
The parameters of a due process defense based on outrageous government conduct are set by United States v. Russell, 411 U.S. 423, 431-32 (1973), Hampton v. United States, 425 U.S. 484, 495 (1976), Emmert, Citro, and United States v. Greene, 454 F.2d 783 (9th Cir.1971). See also United States v. Twigg, 588 F.2d 373 (3d Cir.1978) (dismissing indictment based on outrageous government conduct defense when government agents were involved in the crime from beginning to end); United States v. Batres-Santolino, 521 F.Supp. 744 (N.D.Cal.1981) (dismissing indictment based on outrageous government conduct defense when the government agents "manufactured" the crime).
Suracek Kachanon claims he became involved in the transaction only after the other defendants had been thwarted by DEA "ruses" in their efforts to obtain a supplier in the United States, and were forced to seek a supplier in Thailand. He argues that the government agents (1) persuaded the defendants to seek a supplier in Thailand; (2) provided his visa so that he could travel from Thailand to the United States ; and (3) aided him in transporting the heroin through customs.
The "ruses" to which Suracek Kachanon refers in his brief were designed to save the DEA money. After defendants obtained heroin through their supplier in the United States, DEA agents moved in and seized it so that the DEA undercover agents on the other side of the transaction would not have to pay for the heroin. However, the DEA made no arrests after seizing the heroin, so that the operation, and their investigation, could continue.
Suracek Kachanon analogizes the visa, a necessary "ingredient" of the crime, to the sugar the government supplied to the still operation in Greene.
Phosritong argues that the government's conduct was outrageous because, as in Greene, the government investigator was "enmeshed" in the charged activity and involved in the criminal activity from start to finish. He asserts that the government agents supplied expertise for testing the quality of the heroin; customers for the heroin; cooperation of officials; and the means by which the heroin was imported into the United States.
While the government provided substantial aid to the illegal operations in this case, its involvement was not "so egregious as to 'shock the universal sense of justice.' " Citro, 842 F.2d at 1153. The government here did not manufacture the drug transaction from whole cloth, nor was it both supplier and customer for the drugs. Furthermore, Yai, the government informant, did not persuade or induce defendants' participation. The evidence shows that Piac initially approached Yai, who then informed DEA agent Aiu and agreed to work undercover, and that it was Piac, not Yai or other government agents, who pulled defendants into the operation. Finally, the government's supplying several "ingredients" for the crime, including Suracek Kachanon's visa and the means for transporting the heroin and passing it through customs, is not itself outrageous, see United States v. Bogart, 783 F.2d 1428, 1438 (9th Cir.1986); see also North, 746 F.2d at 631, and does not require dismissal at least where, as here, the government does not manufacture the crime.
X
Double Jeopardy
Srisookko argues that his convictions on counts 2 (conspiring to possess and distribute heroin) and 3 (conspiring to import heroin into the United States) should be vacated on double jeopardy grounds in light of his conviction on count 1 (continuing criminal enterprise). The district court did not sentence Srisookko on counts 2 and 3, acknowledging that they were for lesser offenses included in count 1. As the government concedes, vacation is proper under United States v. Hernandez-Escarsega, 886 F.2d 1560, 1582 (9th Cir.1989), cert. denied, 110 S.Ct. 3237 (1990).
XI
Juror Challenge
Wuthichai Kachanon contends that the trial court abused its discretion in refusing to uphold a challenge for cause against juror number eight during voir dire. He also contests the court's failure to question the juror further after the challenge was asserted.
The trial court has broad discretion in both its rulings on challenges for cause and its method of conducting voir dire, and will only be reversed for abuse of discretion. United States v. Steel, 759 F.2d 706, 711 (9th Cir.1985); United States v. Brooklier, 685 F.2d 1208, 1223 (9th Cir.1982) (citing Dennis v. United States, 339 U.S. 162, 168 (1950)), cert. denied, 459 U.S. 1206 (1983).
Before ruling on the challenge for cause, the district court entertained requests for additional voir dire; Wuthichai's counsel did not request additional voir dire or object to the court's voir dire. Cf. Steel, 759 F.2d at 711 (trial court did not abuse its discretion even where it refused to ask counsel's proposed questions). Furthermore, the juror was ultimately excused on the basis of a peremptory challenge, and the defense did not exhaust all of its peremptory challenges. Cf. Ross v. Oklahoma, 487 U.S. 81, 88-89 (1988) (no actual prejudice shown even where defense used a peremptory to excuse a juror who should have been excused for cause, and exhausted all its peremptory challenges during voir dire); Brooklier, 685 F.2d at 1223 ("Any error which impairs the exercise of peremptory challenges is reversible error.") The jury composition would have been exactly the same even if the trial court had excused the challenged juror for cause. See Ross, 487 U.S. at 85-86 (no prejudice shown when the challenged juror was in fact removed and did not sit).
XII
Motion for Severance
Phosritong contends that the trial court erred in denying his motion for severance. The court reviews this claim for abuse of discretion. See United States v. Adler, 879 F.2d 491, 497 (9th Cir.1988). If the "joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial ...," the denial of a motion for severance constitutes an abuse of discretion. United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir.1987).
"Merely suggesting, or even demonstrating, a comparative advantage in separate trials, absent a showing of manifest prejudice, does not entitle a coconspirator to severance." Adler, 879 F.2d at 497. Instead, he must "demonstrate clear, manifest or undue prejudice resulting from joinder." Id.; United States v. Sherlock, 865 F.2d 1069, 1078 (9th Cir.1989).
Phosritong claims he was prejudiced because this complex case involved a 19-count indictment and nine defendants, while Phosritong was only charged in one count. He states that, because all defendants were Thai, the jury may have had difficulty distinguishing between them and therefore in compartmentalizing the evidence against each defendant. Further, he argues that his involvement in the conspiracy was limited to his sending money to Thailand to finance the transaction and his presence in the car at the time of the arrest, and thus the evidence against his co-defendants prejudiced the jury against him. These points do not amount to the clear, manifest or undue prejudice required to overturn a district court's denial of a motion for severance. As in United States v. Gulma, 563 F.2d 386, 391 (9th Cir.1977), there is no indication that the jury was unable properly to "follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon the defendant's own acts, statements and conduct."
The cases on which Phosritong relies are factually distinguishable. Kotteakos v. United States, 328 U.S. 750 (1946), involved 32 defendants, and was much more complex in that it involved eight separate conspiracies connected by a single defendant. In both Kotteakos and United States v. Varelli, 407 F.2d 735 (7th Cir.1969), the court found that the jury was not properly instructed to segregate the testimony against the individual defendants. Phosritong did not object to the jury instructions.
XIII
Improperly Admitted Evidence
Appellants contest the trial court's admission of two items of evidence: a gun and evidence obtained through a pen register.
A. Gun
Wuthichai Kachanon objects to the court's admission of a gun which was found in his car at the time of his arrest. He points to evidence that at the time the gun was seized, he was not in the process of engaging in an illegal transaction, did not have any contraband in his possession and was not protecting the conspirators' profits. He therefore claims the gun is both irrelevant, and more prejudicial than probative.
The trial court's decisions regarding relevance, as well as its balancing of probative value against prejudicial effect, are reviewed for abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir.1989).
In narcotics cases, "[P]ossession of a firearm demonstrates the likelihood that a defendant took steps to prevent contraband or money from being stolen." United States v. Kearney, 560 F.2d 1358 (9th Cir.), cert. denied, 434 U.S. 971 (1977); see also United States v. Martin, 599 F.2d 880, 889 (9th Cir.), 441 U.S. 962 (1979). However, even if the gun should not have been admitted, the error is harmless. See United States v. Browne, 829 F.2d 760, 766 (9th Cir.1987), cert. denied, 485 U.S. 991 (1988). It was a rather insignificant part of the evidence implicating Wuthichai and, given the informant's testimony against him, it is unlikely that the absence of the gun would have changed the jury's verdict.
B. Pen Register
Jamawat argues that the district court erred in admitting as evidence a summary of calls to Jamawat recorded from a pen register installed on Srisookko's phone, as well as a complete pen register printout of all calls made from Srisookko's phone, because the government did not lay a proper foundation for admission of this evidence, and presented no independent evidence of the accuracy of pen register evidence.
The court reviews the trial court's finding of sufficiency of authentication, as well as its decision to admit summary evidence, for abuse of discretion. United States v. Vasquez, 858 F.2d 1387, 1392 (9th Cir.1988),cert. denied, 109 S.Ct. 847 (1989); United States v. Marchini, 797 F.2d 759, 766 (9th Cir.1986), cert. denied, 479 U.S. 1085 (1987).
Jamawat argues that pen register evidence must be authenticated in the same way as audio tape evidence. However, there is no authority for treating the two kinds of evidence similarly, nor is there any reason to treat them alike in this case. Audio tapes are uniquely susceptible to tampering, and the tampering is more likely to have a substantive effect on the actual testimony in the case of an audio tape.
Special Agent Wong testified that a court order authorized the installation of a pen register on Srisookko's phone. A GTE employee testified that he provided a line from Srisookko's telephone number for the purpose of attaching a pen register. In addition, he testified that in eighteen years of experience he had never seen a wrong number recorded by a pen register. Wong also testified that he was familiar with the pen register installed on Srisookko's line and that he checked it while it was operating. He identified the computer printout as reflecting the calls recorded by the pen register. The trial court did not abuse its discretion in finding that this testimony sufficiently authenticated the pen register printout.
Jamawat also contests the admission of the summary of the pen register printout listing only the calls from Srisookko to Jamawat. However, summaries of telephone information are properly admitted if the summary fairly represents a portion of admissible documentary evidence which was available to the opposing party. United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir.1989). Here, Wong testified that he compiled the summary from the full pen register printout. The complete printout was not only available to the defense; it was admitted into evidence. The trial court thus did not abuse its discretion in admitting the summary of pen register evidence.
XIV
Improper closing argument
Suracek Kachanon contends that the prosecution committed reversible error during its closing argument by vouching for the credibility of a witness, and making a material misstatement of fact. We review allegations of prosecutorial misconduct to consider whether the conduct "materially affected the fairness of the trial." United States v. Solomon, 825 F.2d 1292, 1300 (9th Cir.1987) (quoting United States v. Polizzi, 801 F.2d 1543, 1558 (1986)), cert. denied, 484 U.S. 1046 (1988). If timely objection is made at trial, the court reviews under a harmless error beyond a reasonable doubt standard. Id. "A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context ... [to determine] whether the prosecutor's conduct affected the fairness of the trial." Id. (quoting United States v. Young, 470 U.S. 1, 11 (1985)); see also United States v. Patel, 762 F.2d 784, 795 (9th Cir.1985) ("The critical inquiry is whether, in the circumstances of the trial as a whole, the remarks were so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial.").
Here, counsel moved for a mistrial at the completion of the prosecution's closing argument.
A. Vouching for a Witness' Credibility
Suracek objects to the prosecutor's comments on Special Agent Brian Lee's testimony: "That's what Special Agent Lee, under oath, stated to you. I submit to you that he was telling the truth, that there is no reason for him to just fabricate that to make that up. He was telling you the truth, what was said."
A prosecutor may not express his personal opinion of the defendant's guilt or his belief in the credibility of a witness. United States v. McKoy, 771 F.2d 1207, 1210-11 (9th Cir.1985). In the context of the entire trial, the prosecutor's statement, even if improper, was harmless. Id. at 1210.
B. Material Misstatement of Fact
Suracek also claims the prosecution made two material misstatements of fact in its closing argument. First, he objects to the prosecutor's statement that "we have Ming [Wuthichai Kachanon] saying to Yai (the informant) that the money for the heroin was coming from uncle, now we know who uncle is. It's Uncle Suracek." The prosecutor went on to state that "Ming's response is very telling here as to Uncle...." and that "Ming responds 'there is only one place,' he was stating that there is only one place to get the money to pay for the heroin and that is uncle."
The evidence to which the prosecutor was referring was testimony that the informant asked "Where did you get the money to pay first? Get from uncle?" Ming responded, "there is only one place." In referring to the conversation about "uncle," the prosecutor was merely drawing a reasonable inference from the conversation between Wuthichai and Yai that Wuthichai would be obtaining money to finance the transaction from his uncle, Suracek Kachanon. Even though Yai, not Wuthichai, actually said the word "uncle," Yai was asking Wuthichai a question. His response could reasonably be interpreted to mean yes, that his source for the money was his uncle. Moreover, the court read the transcript of the testimony to the jury to be sure that there would be no misunderstanding as to who said what. Counsel did not object to the court's further instruction. The prosecutor's statement cannot be said to have prejudiced the jury.
Suracek also objects to the prosecutor's statement that Chatchai, one of the government witnesses, testified that Suracek told him that he had provided one million baht for heroin that had been imported into the United States whereas, he asserts, in actuality Chatchai testified that the informant told him the uncle had put up one million baht. Even though erroneous, the prosecutor's statement was harmless. The jury was instructed that statements of counsel were not evidence; and considered in the context of the entire trial, the statement was not likely to mislead. The trial court did not abuse its discretion in denying the motion for mistrial on these grounds.
Chatchai first testified that, in a meeting with undercover DEA agents, Yai, and the Kachanons, Wuthichai Kachanon explained to DEA agents, in Suracek Kachanon's presence, that he had invited Suracek to invest one million baht. On cross-examination, when confronted with a partial transcript of the meeting which stated that Yai, not Wuthichai, had made the statement about Suracek putting up the money, Chatchai testified that he did not remember which of them had made them statement. Then on re-direct, Chatchai testified that the transcript was only partial, and that he remembered Wuthichai Kachanon making the statement at one point in the meeting.
XV
Address Book Improperly Before Jury
Wuthichai Kachanon and Jamawat claim their convictions should be reversed because an address book which had not been admitted into evidence was inadvertently included in the materials sent into the jury room. The court reviews de novo a trial court's refusal to grant a mistrial, being mindful of the trial court's conclusion about the effect of extrinsic evidence seen by the jury. "A defendant is entitled to a new trial when the jury obtains or uses evidence that has not been introduced during trial if there is 'a reasonable possibility that the extrinsic material could have affected the verdict.' " United States v. Hernandez-Escarsega, 886 F.2d 1560, 1580 (9th Cir.1989) (emphasis in original) (citations omitted). Applying the factors relevant to determining whether the government has met its burden of showing that the extrinsic evidence did not influence the verdict set out in Marino v. Vasquez, 812 F.2d 499, 506 (9th Cir.1987), we conclude that the address book did not relate to a material aspect of the case. It contained entries in English and Thai. There were no markings on it to indicate to the jurors who it belonged to or to connect it to the charges against the defendants. None of the defendants was listed in the book. Wuthichai and Jamawat argue that it contained the name "Chow," and testimony at trial identified Chow as a narcotics dealer. However, the address book was in the jury room for less than an hour. It is unlikely that the jurors identified this tenuous connection, and even if they did, this does not constitute a "direct and rational connection" between the verdict and the address book. Like the jurors in that case, the jurors here brought the matter to the court's attention and "policed themselves so as to minimize their exposure to the extrinsic evidence." Hernandez-Escarsega, 886 F.2d at 1581. Furthermore, the court issued a curative instruction which all counsel approved. The trial court properly determined that there was no reasonable possibility that the address book inadvertently included with the jury materials influenced the jury's verdict.
AFFIRMED.
Improper jury instructions were also at issue in United States v. Winter, 663 F.2d 1120 (1st Cir.1981), another case involving multiple conspiracies. The court found that two defendants had been misjoined in the indictment. Phosritong is not claiming misjoinder, but rather, prejudice resulting from a joint trial.