884 F. 2d 1396 - United States v. V Lara

MEMORANDUM**

Jack V. Lara appeals his conviction following a jury trial for: (1) conspiring to possess marijuana with the intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1), 846; (2) conspiring to import marijuana in violation of id. Secs. 846, 952(a); (3) possessing marijuana with the intent to distribute in violation of id. Sec. 841(a)(1); and (4) importing marijuana in violation of id. Sec. 952(a). Lara contends that the district court erred in failing to suppress a statement he made while in custody, in refusing to give his formulation of a jury instruction, and in denying his motion for a mistrial. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We affirm.

* Lara contends that the district court erred in failing to suppress a statement he made while in custody. One of the arresting agents, Pete Grijalva, was Lara's former brother-in-law. After Lara's arrest, Grijalva remarked to Lara, "I know you, and you know me. I got you." Lara replied, "Yeah, you got me." Lara contends that he had requested to speak to an attorney prior to Grijalva's remark,1 and that Grijalva's statement constituted interrogation in violation of his right to remain silent until he consulted with an attorney. The district court concluded that Lara was not subjected to interrogation or its functional equivalent. ER at 15.

"The determination whether a defendant was subjected to custodial interrogation is essentially factual, and is reviewable under the 'clearly erroneous' standard." United States v. Poole, 806 F.2d 853, 853 (9th Cir.1986), amending 794 F.2d 462 (9th Cir.1986). "[T]he definition of interrogation can extend only to words or actions on the part of the police officers that they should have known were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980) (emphasis in original). We conclude that the district court was not clearly erroneous in finding that Lara was not subjected to interrogation or its equivalent. Under the circumstances of this case, we cannot say that Grijalva should have known that his remark was reasonably likely to elicit an incriminating response from Lara.

Lara contends that the district court erred in refusing to give his requested jury instruction on conspiracy. He complains that the court's instruction failed to inform the jury that mere association with a conspirator or mere knowledge of the conspiracy is not a sufficient basis for a finding of guilt. We review the district court's choice of language or formulation of its instructions for an abuse of discretion. United States v. Soulard, 730 F.2d 1292, 1303 (9th Cir.1984). "A trial court is given substantial latitude in tailoring jury instructions so long as they fairly and adequately cover the issues presented. Neither party, including a criminal defendant, may insist upon any particular language." Id. (citation omitted); see also United States v. Giese, 597 F.2d 1170, 1197 (9th Cir.), cert. denied, 444 U.S. 979 (1979).

The district court instructed the jury on the charge of conspiring to import marijuana as follows:

In this count, the defendant is accused of having been a member of a conspiracy. A conspiracy is a kind of criminal partnership, an agreement of two or more people to do something unlawful. The crime is the agreement to do something unlawful; it does not matter whether it was successful or not.

To establish the crime charged, the Government must prove two elements beyond a reasonable doubt: First, that there was an agreement to import marijuana starting sometime on or before June 22, 1988; Second, that the defendant joined that conspiracy starting on or before June 22, 1988.

I will discuss with you briefly the law relating to each of these two elements. First, in determining whether a conspiracy existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. But it is not enough that they simply met, discussed matters of common interest, acted in similar ways or perhaps helped one another. You must find beyond a reasonable doubt that there was a joint plan to import marijuana starting sometime on or before June 22, 1988.

Second, to find against the defendant, you must find that this defendant joined the conspiracy and did so knowing of the unlawful plan and intending to help carry it out.

We conclude that the district court did not abuse its discretion in refusing Lara's formulation of the conspiracy instructions. The court's charge more than adequately conveyed to the jury that mere knowledge or mere association is not sufficient. The jury was sufficiently warned that before it could convict Lara of either conspiracy charge, "it must be convinced of his affirmative embracing of the unlawful objectives and his intent to achieve those objectives." United States v. Guillette, 547 F.2d 743, 751 (9th Cir.1976), cert. denied, 434 U.S. 839 (1977).

Finally, Lara contends that the district court erred in refusing to grant a mistrial after a government witness referred to Lara's criminal history. We review the district court's denial of a motion for mistrial for an abuse of discretion. United States v. Monks, 774 F.2d 945, 954 (9th Cir.1985); United States v. Vincent, 758 F.2d 379, 382 (9th Cir.), cert. denied, 474 U.S. 838 (1985).

Lara's coconspirator, Julio Cota-Avila, testified for the government at Lara's trial. During Cota-Avila's direct examination, the prosecutor asked him about statements Lara had made to him. In responding, Cota-Avila referred to Lara's "past criminal history." Defense counsel objected and moved for a mistrial. The district court denied the motion, but made the following statement to the jury:

You heard something a minute ago that a statement was made to the witness about the defendant's past criminal history. The lawyers have stipulated and have asked me to tell you that there is no--that the defendant here has never been convicted of any kind of a felony or serious crime.

RT at 69. Later in the trial, Lara took the stand and testified that ten years ago he had been convicted of aiding and abetting illegal aliens. He testified that he ran from the Border Patrol Agents on the night of his arrest in this case because Cota-Avila was an illegal alien and he was afraid of being arrested for harboring an illegal alien.

We conclude that the district court did not abuse its discretion in denying Lara's motion for a mistrial. Any prejudice resulting from Cota-Avila's reference to Lara's criminal history was minimal. The reference was brief and unintentional. The district court limited its impact by stating that Lara had never been convicted of a felony or serious crime. Moreover, the evidence of Lara's guilt was substantial. Thus the district court properly denied a mistrial. See Monks, 774 F.2d at 955.

The judgment of the district court is AFFIRMED.