OpenJurist

917 F2d 567 United States v. Morris

917 F.2d 567

Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee
v.
James MORRIS, Defendant-Appellant

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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No. 89-50458.

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United States Court of Appeals, Ninth Circuit.

Submitted Oct. 2, 1990.*
Decided Nov. 2, 1990.

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Before ALARCON, WILLIAM A. NORRIS, Circuit Judges and CALLISTER, District Judge.

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MEMORANDUM***

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Appellant James Morris appeals from the judgment of conviction for conspiracy to possess with intent to distribute cocaine and heroin. Morris was found guilty by the jury on all five counts. His codefendant Dan Guiton was acquitted.

Morris raises three arguments on appeal:

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1. The trial court's in limine ruling that would have permitted the government to elicit information from Jerry Kiser concerning his motives for testifying, should the defense cross-examine him concerning payments he received from the Drug Enforcement Administration (DEA), impaired defense counsel's attempt to impeach and cross-examine that witness.

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2. The government failed to prove the required element of agreement between parties for the charge of conspiracy because the jury acquitted codefendant Guiton.

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3. The district court should have granted Morris' motions for new trial or acquittal because the government's discovery violations substantially prejudiced the defense.

DISCUSSION

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I. Limitation on the Scope of Cross-examination

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Prior to trial Morris filed a motion in limine requesting the court to suppress evidence that he was connected with the "Crips" gang and that Kiser was motivated to assist the government based on his belief that Morris was connected with his daughter's death. At the hearing on the motion in limine the court agreed to permit defense counsel to conduct a voir dire examination of Kiser outside the presence of the jury before ruling. After hearing Kiser's testimony, the court ruled that if the defense decided to cross-examine Kiser concerning his motive for testifying, the government would be allowed to attempt to rehabilitate the witness by inquiring into his motivation for testifying as a government witness. The defense then advised the court that it would not question Kiser regarding his motives for testifying because of the court's ruling on the motion in limine.

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Morris argues that the court's ruling violated his sixth amendment right to confrontation and cross-examination of hostile witnesses. He contends that he was precluded from introducing evidence that Kiser received payments from the government for the information he provided because of the inflammatory nature of the evidence the government indicated that it would introduce on redirect examination.

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A trial court's limitation on the scope of cross-examination is reviewed for abuse of discretion. United States v. Whitworth, 856 F.2d 1268, 1283 (9th Cir.1988), cert. denied, 109 S.Ct. 1541 (1989). The district court did not abuse its discretion in ruling that the government would be permitted to attempt to rehabilitate Kiser by inquiring as to his motivation for assisting the government if the defense attempted to impeach the witness on this ground.

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In United States v. Segall, 833 F.2d 144 (9th Cir.1987), we held that the district court did not abuse its discretion in allowing the government, on redirect examination, to question a witness for the purpose of correcting a false impression that had been created by the defense on cross-examination. Id. at 148. We based our decision on two grounds. First, defense counsel "opened the door" to the redirect testimony by introducing on cross-examination evidence that might have created a false impression. Id. Second, the redirect testimony was admissible to remove any prejudice that might have resulted from the cross-examination. Id.

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Cross-examination of Kiser concerning receipt of payments for his information would have been relevant to show bias and to impeach his credibility. The court informed counsel that such cross-examination would be permitted. The district court did not abuse its discretion in ruling that cross-examination on this subject matter would open the door to questions directed at showing that the witness' true motivation for assistaing the government was his belief that Morris was involved in the death of Kiser's daughter, not the payments received from the government.

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Morris argues further that if evidence of the death of Kiser's daughter was relevant, it was inadmissible because its prejudicial effect would have outweighed its probative value. He contends that the introduction of Kiser's testimony regarding his daughter's death was inadmissible under Rule 403 of the Federal Rules of Evidence because it would have evoked an emotional response from the jury, and would have had an adverse impact on its deliberations.

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We were presented with a similar argument in United States v. Parr-Pla, 549 F.2d 660 (9th Cir.1977), cert. denied, 431 U.S. 972 (1977). In Parr-Pla we held that the district court did not abuse its discretion in allowing the prosecution to elicit evidence on redirect examination that disclosed that defendant had been convicted of murder. Parr-Pla, 549 F.2d at 663. "[Defendant's] counsel, by inquiring on cross-examination of [defendant's] girlfriend whether she knew [defendant] was on probation, opened the door to the disclosure on redirect examination of the fact that [defendant] had been convicted of murder." Id.

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As discussed above, the evidence of the death of Kiser's daughter would have been highly relevant to the issue of his motive in testifying. The probative value of Kiser's explanation of his true motivation for testifying would not have been substantially outweighed by its prejudicial effect. It would have assisted the jury in weighing his credibility. The jury might well have concluded that he was not credible because his motive to avenge his daughter's death might have caused him to testify falsely against the accused. The district court did not abuse its discretion in ruling that the government would be entitled to elicit information regarding Kiser's motive to testify if defense counsel opened the door on cross-examination.

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II. Sufficiency of Evidence to Support the Conspiracy Charge

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Morris argues that the district court erred in denying his motion for the entry of a judgment of acquittal, or, alternatively for a new trial, because the government failed to prove the existence of two or more conspirators, a requisite element for the crime of conspiracy. He contends that the government failed to prove an essential element of the crime of conspiracy, i.e. the existence of an agreement between two or more individuals, because his codefendant was acquitted.

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The acquittal of all but one co-conspirator does not compel the acquittal of the remaining defendant on the conspiracy charge. United States v. Valles-Valencia, 811 F.2d 1232, modified 823 F.2d 381 (9th Cir.1987). Additionally, "in cases in which the indictment refers to unindicted or unknown persons as conspirators, acquittal is not required if the government shows by substantial evidence that the defendant conspired with those persons." United States v. Wright, 742 F.2d 1215, 1224 (9th Cir.1984). Thus, "[e]ach case must be examined carefully to see whether evidence of conspiring with others, known or unknown, was produced during trial." Valles-Valencia, 823 F.2d at 382.

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The sufficiency of the evidence supporting the verdict is reviewed in a light most favorable to the government. United States v. Adler, 879 F.2d 491, 495 (9th Cir.1989). Here, the evidence shows that Morris conspired with unindicted or unknown persons. Count one of the indictment charged defendants Morris and Guiton and other unknown co-conspirators to have conspired in violation of 21 U.S.C. Sec. 846. During trial, the government presented witnesses who testified that Morris conspired with other unindicted conspirators. Gary Shram, the supervising investigator with the District Attorney's Office, testified that Morris met several times with Kiser and Julius Resnick for the purpose of discussing narcotics trafficking. Dempsey Jones, a special agent with the DEA, testified about a planned 5 kilogram cocaine sale, which had been arranged through various meetings with Resnick, Morris, and Kiser. Kiser testified that he and Morris met at Morris' house so that Morris could deliver three ounces of heroin to Kiser. During the meeting, "Bootsie" arrived at Morris' house and provided Morris with three ounces of heroin. Morris himself testified that he obtained the cocaine and heroin from other persons and gave it to Kiser. The district court did not err in refusing to grant Morris' motion for the entry of a judgment of acquittal or for a new trial.

III. Discovery Violations

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Morris argues that the district court committed reversible error in refusing to grant his motion for entry of a judgment of acquittal or for a new trial on the ground that the government committed three discovery violations. Morris asserts that the government belatedly produced rough notes of Morris' post arrest statement to law enforcement officers, and a tape containing Morris' voice. Morris also argues that the government failed to respond to a subpoena duces tecum concerning Kiser's financial records. We discuss each contention, and the facts pertinent thereto, under separate headings.

A. Delayed Disclosure of Notes and Tape

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The record does not support Morris' assertion that the government was guilty of misconduct with respect to the belated disclosure of the notes and the tape. In United States v. Dupuy, 760 F.2d 1492 (9th Cir.1985), we held that when the delayed disclosure of a document by the prosecution was not prejudicial to the defendant and not the result of "willful avoidance and egregious dereliction of the prosecutor's statutory obligation," a mistrial is not required. Id. 1497. Here, just as in Dupuy, the government's delayed disclosure was not a willful avoidance or egregious dereliction of its obligations. The record shows that the late production of the notes and the tape was the result of mistake, not governmental misconduct. Upon discovery of the existence of the notes and the tape, the prosecutor promptly disclosed them to the defense.

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Morris has also failed to demonstrate that he was prejudiced by the late disclosures of this material. Morris received the notes prior to the presentation of his opening statement. On the afternoon of the same day, Morris received the tape. His counsel did not request a continuance on the ground that he needed time to prepare for the possible use of this material during trial. Thus defense counsel did not give the court an opportunity to fashion an appropriate remedy for the delay. Instead, defense counsel merely stated to the court:

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I must say for the record that I wish I had had this consistent with Rule 16 from the beginning of this case. I haven't had it. I prepared my opening and my case without it. I just want that on the record. I don't know what the remedy is at this juncture, but it is incredible to me, and I can't understand it.

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The delayed disclosure of the notes and the tape does not constitute reversible error.

B. Compliance with the Subpoena Duces Tecum

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The record does not support Morris' assertion that the government was guilty of misconduct with respect to the failure to produce all of the financial records specified in the subpoena duces tecum directed to Kiser. The subpoena requested all of Kiser's financial records, including tax returns, from 1985 to the present. The uncontradicted evidence produced during Kiser's voir dire examination demonstrated that he did not have in his possession any financial records for the years following 1985. These records are in the possession of his wife who no longer lives with him. On April 11, 1989, the court impliedly quashed Morris' subpoena duces tecum by declining to order the production of the financial records for the years following 1985. "Decisions regarding the quashing of a subpoena duces tecum ... are committed to the trial judges' decision. On appeal, disturbing such a decision is unwarranted unless it is clearly arbitrary or without support in the record." United States v. Hughes, 895 F.2d 1135, 1145, (6th Cir.1990) (citations omitted). Since Kiser did not have the requested documents in his possession, the district court's decision to quash the subpoena was not arbitrary. The district court did not abuse its discretion in refusing to grant the motions for a judgment of acquittal or for a new trial.

CONCLUSION

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The judgment of conviction and the order denying Morris' motions for the entry of a judgment of acquittal or for a new trial are each AFFIRMED.

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The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

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Honorable Marion J. Callister, Senior District Judge, for the district of Oregon, sitting by designation

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