U.S. v. Rohrer

• Citation: 708 F.2d 429
• Decision Date: 16 June 1983
• Docket Number: 82-1346,Nos. 82-1255,s. 82-1255
• Parties: 13 Fed. R. Evid. Serv. 796 UNITED STATES of America, Plaintiff-Appellee, v. James ("Jake") ROHRER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John BUMP, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 429

708 F.2d 429

13 Fed. R. Evid. Serv. 796

UNITED STATES of America, Plaintiff-Appellee, v. James ("Jake") ROHRER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John BUMP, Defendant-Appellant.

Nos. 82-1255, 82-1346.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 16, 1983.

Decided May 25, 1983.

As Amended June 16, 1983.

Dennis Aftergut, Eric J. Swenson, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee.

Doron Weinberg, Larson & Weinberg, J. Frank McCabe, Richard B. Mazer, San Francisco, Cal., for defendants-appellants.

Appeal from the United States District Court for the District of Northern California.

Before MERRILL, CHOY, and SNEED, Circuit Judges.

SNEED, Circuit Judge:

James Rohrer and John Bump, co-defendants below and appellants in this court, were convicted of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a), and conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846. The district court denied their motions for a new trial and they filed timely appeals. We affirm.

I. FACTS

The government's case rested primarily on the testimony of Stephen Green, a figure in a Bay Area drug network, who testified against the defendants after the government agreed to seek a reduction in his sentence, imposed as a result of his earlier conviction on drug charges. He described seven sales of cocaine involving Rohrer and five involving Bump. The government introduced hotel and car rental receipts, airline tickets, and customs records to support Green's testimony, but the only corroboration for the appellants' involvement were records of long-distance calls made to Rohrer and Bump during the alleged conspiracy.

Appellants attacked Green's credibility. Three defense witnesses testified to Green's heavy use of drugs and its debilitating effects. On cross-examination Green admitted his past drug usage and to having experienced blackouts during the conspiracy period.

Another government witness, paid informant William Northcutt, testified against Rohrer in return for reduction of charges against him in another drug case. Northcutt, like Green, had a history of drug use and dealing. Northcutt stated that he had twice obtained cocaine from Rohrer and on other occasions negotiated unsuccessfully for drugs. The only corroboration for Northcutt's charges were records of calls he made to Rohrer's phone number during the conspiracy period. Rohrer countered Northcutt's testimony by presenting against him a number of reputation witnesses, including his ex-wife and his sister.

Against Bump, the government introduced a weighing scale and several boxes of baggies seized from Bump's home on November 2, 1981, after his arrest. This seizure came fifteen months after the last offense on which he was charged. The items tended to support Green's charge that Bump kept a scale and baggies at home to use in distributing cocaine.

II. QUESTIONS ON APPEAL

Rohrer and Bump first raise a variety of objections to jury instructions. Next they object to admission of Green's cooperation agreement with the government and of a sketch he drew of his drug distribution network, as well as to the exclusion of expert testimony on the effects of drug usage. They also assert that the court abused its discretion in striking post-trial affidavits that they feel demonstrate juror misconduct. Bump, on his own behalf, contends that the trial court abused its discretion in admitting the property seized in his home and in refusing to grant a limiting instruction when it ordered a rereading of testimony that pertained only to Rohrer. Finally, both Rohrer and Bump argue that even if this court holds harmless each of the alleged errors in isolation, the cumulative impact of these errors in a case resting largely upon uncorroborated accomplice testimony requires reversal. We find none of these arguments persuasive.

III. JURY INSTRUCTIONS

Jury instructions must be analyzed in the context in which they are given--as part of the whole trial. United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir.1982); United States v. James, 576 F.2d 223, 227 (9th Cir.1978). Furthermore, appellants must show not merely that the phrasing of the trial court was confusing, but that the phrasing amounted to an abuse of discretion. Abushi, 682 F.2d at 1299; James, 576 F.2d at 227.

Appellants have not made that showing here. We have reviewed the jury instructions in their totality and are convinced that each of appellants' complaints stems from a failure to consider the full instructions. All of the instructions but one are sufficiently free from error to preclude the need for specific mention.

Appellants' most nearly meritorious contention concerns an instruction that appeared to identify Green's credibility as the primary issue in this case. ¹ An instruction that appears to reduce a criminal case to acceptance or rejection of a government witness' testimony may impermissibly lead the jury to forget that the defendant cannot be convicted unless guilty beyond a reasonable doubt. This mistake, if not corrected, can effectively deprive the defendant of his right to a jury trial. See, e.g., United States v. Oquendo, 490 F.2d 161, 164-66 (5th Cir.1974) (disapproving "Blue " charge of United States v. Blue, 430 F.2d 1286, 1286-87 (5th Cir.1970)). We are convinced, however, that the court adequately remedied any confusion by promptly reminding the jury of the proper burden of proof. ² Accord United States v. Pine, 609 F.2d 106, 107-09 (3d Cir.1979); United States v. Guest, 514 F.2d 777, 779-80 (1st Cir.1975).

IV. EVIDENTIARY RULINGS

A court's evidentiary rulings will be overturned only for abuse of discretion. United States v. Patterson, 678 F.2d 774, 778 (9th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 219, 74 L.Ed.2d 174 (1982). Even if error is found, the nonconstitutional errors alleged here would not require reversal unless it was "more probable than not" that they affected the verdict. Fed.R.Crim.P. 52(a); United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir.1982); United States v. Awkard, 597 F.2d 667, 671 (9th Cir.1979), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979); United States v. Valle-Valdez, 554 F.2d 911, 914-16 (9th Cir.1977).

A. The Cooperation Agreement

Appellants argue that the admission of the "truthful testimony" portions of No such vouching occurred here. The government in no way put its prestige behind the witness; instead it was careful to ask the jury to look to the agreement to determine Green's motives. And it did not "implicitly" point to evidence outside the record. Neither the passages appellants cite from the trial transcript nor the cases cited in Rohrer's brief ³ support the claim of vouching. The court received the full text of the cooperation agreement into evidence only after appellants' extensive impeachment of Green's motives on cross-examination and their discussion of part of the agreement. There can be no doubt but that the agreement was relevant to material facts at issue and that the court acted correctly in permitting it to be introduced. See United States v. Rubier, 651 F.2d 628, 630 (9th Cir.), cert. denied, 454 U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 183 (1981). And it was proper for the government to point to the cooperation agreement as a factor bearing on Green's credibility. See United States v. Brooklier, 685 F.2d 1208, 1218-19 (9th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983); United States v. Tham, 665 F.2d 855, 861-62 (9th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2010, 72 L.Ed.2d 466 (1982).

Green's cooperation agreement with the government and the latter's references to it at trial constituted impermissible vouching for Green. For support they cite United States v. Roberts, 618 F.2d 530, 533-34 (9th Cir.1980); e.g., United States v. Gibson, 690 F.2d 697, 702 (9th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1446, 75 L.Ed.2d 801 (1983). In Roberts the prosecutor mentioned that a detective was monitoring the testimony of a government witness. The natural inference was that the government possessed information with which to measure the veracity of the witness. The court found the inference to amount to vouching, which it held to be improper. Id. at 533-34.

B. The Prior Consistent Statements

The court admitted as a prior consistent statement a diagram Green had drawn of his distribution ring. Fed.R.Evid. 801(d)(1)(B). Green drew the diagram, which implicated Rohrer and Bump, just prior to signing his cooperation agreement. A prior consistent statement is admissible to rehabilitate a witness only if made before the witness has a motive to fabricate. United States v. Rodriguez, 452 F.2d 1146, 1148-49 (9th Cir.1972). ⁴ Appellants are correct in arguing that Green's motive to fabricate already existed when he drew his diagram. By drawing the diagram he sought to drive a better bargain with the government. Thus the diagram was inadmissible because it did not precede his motive to fabricate. It is not, however, "more probable than not" that its admission affected the verdict. Green's testimony lay at the heart of the trial and appellants were able to thoroughly examine all parts of his testimony in court. The diagram, which merely illustrated his other testimony, was unlikely to decide the case. Its admission does not constitute reversible error.

Rohrer also objects to the admission of Northcutt's 1979 discussion of Rohrer's activities. These statements, unlike Green's, were properly admitted. Northcutt made them while negotiating for a cooperation agreement in an earlier trial. The motive to fabricate expired when its purpose was served. The statements were introduced to rebut the charge that Northcutt's present testimony was fabricated to encourage the government to agree to a cooperation agreement affecting this trial. The evil Rodriguez is designed to...