951 F. 2d 363 - United States v. Hall

MEMORANDUM**

Defendants Stanley Hall, Edgar Fuller, and Betty Dixon appeal their convictions by jury trial on two counts of distribution of a substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 23 U.S.C. § 1291. We affirm.

An undercover narcotics investigation at the Long Beach Naval Station led to the discovery of a "rock house" at an apartment building in Long Beach. On two occasions, March 5 and March 15, 1990, undercover agents purchased rock cocaine and observed other sales of rock cocaine at that location.

Dixon functioned primarily as a messenger between the agents and the other defendants, Hall and Fuller. She also performed minor tasks involving these drug transactions. Hall and Fuller negotiated the sales of rock cocaine to the agents and carried through with the distribution.

On July 27, 1990, defendants were found guilty of knowingly and intentionally distributing a substance containing cocaine base on March 5 and March 15, 1990.

Each defendant timely filed a notice of appeal. The appeals were consolidated on February 6, 1991. The defendants challenge their convictions on several grounds. We address each issue in turn.

The district court gave an instruction on aiding and abetting after closing argument in violation of Fed.R.Crim.P. 30. Failure to comply with Rule 30 is reversible error "if counsel's closing argument was prejudicially affected thereby." United States v. Gaskins, 849 F.2d 454, 458 (9th Cir.1988). A violation of Rule 30 "prejudices a party if the party was unfairly prevented from arguing his or her defense to the jury or was substantially misled in formulating and presenting arguments." Id. at 458.

The Rule 30 violation constitutes reversible error as to Dixon, but not as to Fuller and Hall. Dixon's role in the two transactions was less significant than that of Fuller or Hall. Her closing argument was prejudicially affected by her counsel's inability to argue against a theory of aiding and abetting. See Id. at 460. Accordingly, we reverse Dixon's conviction.

By contrast, Fuller and Hall were not unfairly prevented from arguing a theory of aiding and abetting to the jury. Overwhelming evidence established their direct participation in both the March 5 and March 15 transactions, precluding an effective argument that they were merely aiders and abettors. Consequently, an aiding and abetting instruction in the instant case was superfluous as to both Fuller and Hall. See United States v. McCown, 711 F.2d 1441, 1452 (9th Cir.1983) (entrapment instruction given after closing argument did not prejudice defendants because evidence did not support finding of entrapment); United States v. Wycoff, 545 F.2d 679, 683 (9th Cir.1983) (instruction on excuse not prejudicial because evidence did not support defense of excuse), cert. denied, 429 U.S. 1105 (1977). Accordingly, Fuller and Hall were not prejudiced by the Rule 30 violation.

The district court did not mislead the defendants; an instruction on aiding and abetting had not been discussed. The instruction was given only because the district court felt compelled to do so after counsel for Dixon mentioned that Dixon had not been charged with aiding and abetting. Hence, this case differs from those in which the district court expressly stated that an instruction either would or would not be given and then reversed its decision sua sponte. See, e.g., Gaskins, 849 F.2d at 456 (court agreed not to give instruction on aiding and abetting and then gave the instruction in response to a question from the jury); United States v. Harvill, 501 F.2d 295, 296 (9th Cir.1974) (court informed counsel that it would give specific intent instruction and failed to do so without informing counsel). As to Fuller and Hall, the Rule 30 violation was not prejudicial and therefore not reversible error.

Defendants claim that the agent's reference to a "machine type weapon" on direct examination and the prosecutor's similar reference to a "machine gun type weapon" in a follow-up question, in violation of the district court's ruling in limine, warrants reversal. Prosecutorial misconduct justifies reversal if it appears more probable than not that the alleged misconduct affected the jury's verdict. United States v. Simtob, 901 F.2d 799, 806 (9th Cir.1990) (citing United States v. Flake, 746 F.2d 535, 541 (9th Cir.1984)), cert. denied, 469 U.S. 1225 (1985).

Although the district court found that some prejudice had occurred, it did not find the prejudice great enough to warrant a mistrial. We agree. In light of the overwhelming evidence against the defendants, we cannot say that the improper comments more probably than not affected the outcome of the trial.

Moreover, the trial judge took prompt and effective action to neutralize the damage of the improper comment. He admonished the prosecutor and read the indictment to the jury, which contained no charges relating to firearms. See Simtob, 901 F.2d at 806; United States v. Pruitt, 719 F.2d 975, 978 (9th Cir.) (misconduct did not warrant reversal because reference involved single, isolated incident and because curative instructions were given), cert. denied, 464 U.S. 1012 (1983). Accordingly, the district court properly refused to grant a mistrial.

Defendants present two claims based on the sufficiency of the evidence. Dixon argues that the evidence was insufficient to support her convictions for distributing cocaine base on March 5 and March 15, 1990. Fuller and Hall argue that the evidence was insufficient to establish that the controlled substance at issue was cocaine base.

In a challenge to the sufficiency of the evidence, we review the record independently to determine whether substantial evidence exists to support the jury's implied factual findings. United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir.1989). Substantial evidence exists if, viewing the evidence in the light most favorable to the government, there was relevant evidence from which the jury could reasonably find the accused guilty beyond a reasonable doubt of each element of the crime charged. Id.; United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir.1988).

A rational trier of fact reasonably could have inferred from evidence at trial that Dixon participated in the distribution of rock cocaine to the agent, or, at least, that she aided and abetted in the transactions. The district court did not err, therefore, in denying Dixon's Rule 29 motion for acquittal. We do not know, however, whether Dixon was convicted as a principal or as an aider and abettor.1 Reversal of Dixon's conviction is still required because her counsel was precluded by the trial court's Rule 30 violation from developing an effective argument against aiding and abetting, which may very well be the theory on which the jury convicted her.

Fuller's and Hall's argument that the evidence does not support a finding that the substance at issue was cocaine base is based on alleged conflicts in the testimony of the government's witness. The expert testified that cocaine base cannot absorb moisture. He also testified that the substance he examined in government exhibit 3 appeared to be "damp." Defendants fail to account for the expert's testimony that the substance in government exhibits 2 and 3 contained only 58% and 86% cocaine base respectively. The jury could have reasonably concluded from the expert's testimony that any moisture in exhibit 3 was related to the portion of the substance that did not contain pure cocaine base. The district court thus did not err in denying Fuller's and Hall's Rule 29 motion for acquittal based on insufficiency of the evidence.

The district court did not instruct the jury on the quantity of cocaine base to be proved by the government. Fuller and Hall contend that this omission relieved the government of its burden to prove that they distributed more than 50 grams of cocaine base.

The amount of cocaine base is an issue for sentencing. United States v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir.1991) (pet. for cert. filed Oct. 15, 1991). Section 841(a) does not specify drug quantity as an element of the substantive offense. Instead, quantity requirements are contained in the penalty provisions of section 841(b), and are matters for the district court at sentencing. Id. Consequently, the district court did not err in refusing to instruct the jury that the quantity of cocaine base is an element of the offense.

Finally, Fuller, Hall, and Dixon complain that the district court abused its discretion in denying their motion to dismiss for selective prosecution without affording them an evidentiary hearing or discovery of government documents.2 To establish a prima facie case of selective prosecution, the defendant bears the burden of proving (1) that others similarly situated are not prosecuted for the same conduct and (2) that the decision to prosecute was based on impermissible grounds such as race, religion, or the exercise of constitutional rights. United States v. Wilson, 639 F.2d 500, 503-04 (9th Cir.1981); United States v. Leidendeker, 779 F.2d 1417, 1418 (9th Cir.1986). Defendants contend that they were singled out for prosecution because they are black.

An evidentiary hearing is warranted "when enough facts are alleged to take the question past the frivolous stage." United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir.1974). Defendants have not alleged sufficient facts to pass the frivolous stage. Despite Dixon's statistical evidence of drug use and prosecution rates, there is simply nothing to support the claim that others are not prosecuted for the same offense or that the defendants' prosecutions were motivated by race. The prosecution in the present case arose from an investigation that began at the Long Beach Naval Station. The trail led to the apartment building in Long Beach and the defendants' rock cocaine distribution activities. Thus, the district court did not abuse its discretion in denying the motion for an evidentiary hearing.

The convictions of Fuller and Hall are AFFIRMED. Dixon's convictions are REVERSED on the basis of the Rule 30 violation and the case is REMANDED for a new trial.