940 F. 2d 669 - United States v. Murray
940 F2d 669 United States v. Murray
940 F.2d 669
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Bernadette MURRAY, Defendant-Appellant.
No. 88-5311.
United States Court of Appeals, Ninth Circuit.
Submitted July 23, 1991.*
Decided July 25, 1991.
Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.
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MEMORANDUM**
Bernadette Murray appeals her conviction following a jury trial for distribution of cocaine base within 1,000 feet of an elementary school, and for use of a minor to distribute cocaine base, in violation of 21 U.S.C. Secs. 845(a)(1), 845a and 845b.1 Murray claims the district court erred by denying her motion for a mistrial after a government witness took the stand and refused to testify. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.
We review for abuse of discretion a district court's denial of a defendant's motion for a mistrial. See United States v. Segal, 852 F.2d 1152, 1155 (9th Cir.1988). A witness's refusal to testify may constitute reversible error when the government makes a "conscious and flagrant" attempt to build its case out of inferences arising from the witness's recalcitrance, or when these inferences add critical weight to the prosecution's case in a form not subject to cross-examination. See Namet v. United States, 373 U.S. 179, 186-87 (1963); Skinner v. Cardwell, 564 F.2d 1381, 1390 (9th Cir.1977).
On the first day of trial, the government presented the testimony of Larry Jackson, the undercover police officer who purchased cocaine from Murray. At the end of the day, the government called Virgil Mahoney, the minor who allegedly distributed the cocaine, to testify. Mahoney said he did not want to testify, and the trial was immediately adjourned. Mahoney was called again on the following day, and testified without incident.
Nothing in the record suggests that the government called Mahoney in bad faith or attempted to exploit his refusal to testify. See Namet, 373 U.S. at 186-87; Skinner, 564 F.2d at 1390. Moreover, Mahoney's initial recalcitrance did not add critical weight to the government's case, as Officer Jackson's testimony, on its own, amply supported the guilty verdict. See id. We conclude, therefore, that the district court acted well within its discretion in denying Murray's motion for a mistrial. See Segal, 852 F.2d at 1155.
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
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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
Since Murray was convicted in 1988, sections 845a and 845b have been recodified at 21 U.S.C. Secs. 860 and 861 respectively