883 F. 2d 1025 - United States v. Herrera

MEMORANDUM**

Mario Herrera appeals the district court denial of his motion to dismiss for 1) alleged witness intimidation, 2) the court's exclusion of testimony concerning the reputation of a fugitive codefendant and 3) for insufficient evidence. He is charged with three counts of a four count indictment alleging drug conspiracy, in violation of 21 U.S.C. Sec. 846 (count one); possession of heroin with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (count two); and distribution of heroin in violation of 21 U.S.C. Sec. 841(a)(1) (count three).

We review findings concerning government misconduct under a clearly erroneous standard. United States v. Little, 753 F.2d 1420, 1439 (9th Cir.1984). The defendant alleged that Detective Piastro had intimidated witnesses by an emotional outburst in the witness room. It was not error to deny the motion to dismiss on these grounds since Herrera has not shown that the outburst in any way influenced the proceedings. This case differs from Webb v. Texas, 409 U.S. 95, 96 (1972) (where a witness refused to testify following the judge's excessive admonition that he would be charged with perjury if he lied) and United States v. MacCloskey, 628 F.2d 468, 475-76 & n. 14 (4th Cir.1982) (the chief defense witness invoked the Fifth Amendment at least 14 times concerning questions she had answered in detail in voir dire before the prosecutor suggested that she had "better remember the privilege of the Fifth Amendment").

The outburst was witnessed by three defense witnesses, Maria Valencia de Rubio, Manuel Valencia and Pedro Valencia. Mrs. Rubio testified regarding the outburst at the evidentiary hearing as well as at trial. Manuel Valencia testified at the evidentiary hearing but was not called at trial. Pedro was not called at either the hearing or the trial.

Herrera alleges Mrs. Rubio was less "forthcoming" than she had been during previous interviews, asserting that she was reluctant to maintain eye contact and that she appeared apprehensive. Even if Herrera is correct, the record fails to establish a connection between the outburst and the alleged apprehension.

We review exclusion of evidence under the abuse of discretion standard. United States v. Patterson, 819 F.2d 1495, 1503 (9th Cir.1987). We find no abuse of discretion in the exclusion of Mrs. Rubio's testimony concerning her husband's character as a "mean drunk." Herrera implies that he acted under duress and therefore this testimony was relevant. We understand but reject the argument. There had already been testimony that depicted Mr. Rubio's character. This testimony was cumulative, and therefore its exclusion was within the court's discretion. Hamling v. United States, 418 U.S. 87, 127 (1974) (trial court has considerable latitude to reject even relevant evidence if it is considered to be cumulative).

We review sufficiency of the evidence in the light most favorable to the government "respecting the exclusive province of the jury to determine the credibility of the witness, resolve evidentiary conflicts and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict." United States v. Goode, 814 F.2d 1353, 1355 (9th Cir.1987) (quoting United States v. Ramos, 558 F.2d 545, 546 (9th Cir.1977)).

There was sufficient evidence to support the conviction: 1) Herrera attended the last meeting between the sellers and the buyers; 2) the next day he accompanied Rubio to the actual transfer of the drugs; 3) Herrera was registered in a room in the hotel adjacent to the transfer location; 4) Rubio told the undercover officer in Herrera's presence that Herrera would get the truck, drive it over and show the drugs to agent Piastro and 5) after Rubio stated all of that, Herrera gestured and said "okay"; 6) Herrera got the vehicle, and gave the bag to detective Piastro, tearing off the top of the bag to show him the drugs. We recognize that Herrera denies that he tore the top off the bag, but he failed to show why we should disregard the jury's evaluation of the conflicting testimony. See Goode, 814 F.2d at 1355.

AFFIRMED.