U.S. v. Ainge

• Decision Date: 02 April 1996
• Docket Number: No. 94-10589,94-10589
• Citation: 81 F.3d 170
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Raymond Sander AINGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 170

81 F.3d 170

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Raymond Sander AINGE, Defendant-Appellant.

No. 94-10589.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 1996.

Decided April 2, 1996.

Before: SCHROEDER, D.W. NELSON, and KOZINSKI, Circuit Judges.

MEMORANDUM ^*

Raymond Sander Ainge appeals his jury conviction on three counts of drug activity on board a vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act, 46 U.S.C.App. § 1903 ("MDLEA"); one count of conspiracy to possess with intent to distribute, and conspiracy to distribute, hashish in violation of 21 U.S.C. §§ 841(a) & 846; one count of possession with intent to distribute hashish in violation of 21 U.S.C. § 841(a); and one count of conspiracy to import hashish into the United States in violation of 21 U.S.C. §§ 952 & 963.

Ainge's co-defendants included Michael Medjuck and Charles Sotirkys, whose convictions on identical charges involving violations of the MDLEA were reversed by this court in United States v. Medjuck, 48 F.3d 1107 (9th Cir.1995), because of infirmities in the jury instructions. The government concedes that Ainge's convictions on these counts must be reversed for similar reasons.

The remaining questions in this appeal therefore relate to the convictions on the remaining three counts. Ainge first contends that our decision in Medjuck requires reversal of his entire conviction because the infirmities in the MDLEA-related jury instructions infected the instructions on his remaining counts. His contention is without merit. We reversed in Medjuck because the district court failed to instruct the jury to establish the statutory and constitutional jurisdictional requirements for conviction under the MDLEA by finding that the Lucky Star was a vessel subject to the jurisdiction of the United States, and that a sufficient nexus existed between the conduct condemned and the United States. The district court instructed the jury separately with respect to the other counts, which had no such peculiar independent jurisdictional requirement. Thus, there is no basis for reversing the remaining convictions on account of the MDLEA instructions.

Ainge next argues that the district court erroneously struck four prospective jurors for cause without asking sufficient questions to determine whether they possessed an actual bias. The district court required each venire person to answer a series of fifty-six written questions. The answers of the four prospective jurors in question indicated that each might have had some difficulty in applying some aspect of the law as it related to the case. The district court, therefore, did not abuse its discretion in refusing to conduct additional oral examination. See United States v. Dischner, 974 F.2d 1502, 1522-23 (9th Cir.1992), cert. denied, 507 U.S. 923 (1993); United States v. Baldwin, 607 F.2d 1295, 1297-98 (9th Cir.1979).

Ainge next challenges the district court's refusal to subpoena informant Michael Culbertson after Ainge filed a last-minute motion pursuant to Fed.R.Crim.P. 17(b). Ainge wanted to use Culbertson to impeach government witness Jack Hayden's testimony about Ainge's participation in the efforts to transfer and sell the hashish. However, Ainge's involvement in these efforts was amply supported by other government evideence apart from Hayden's testimony. Moreover, even if the district court had granted the subpoena, the record reflects that Culbertson would not have appeared to testify, for his whereabouts were unknown throughout the trial. Any error was therefore harmless.

Next, Ainge makes a number of evidentiary challenges to the district court's admission of agent Brian Gallion's expert opinion that the likely destination of the hashish was the United States as well as Canada. Ainge argues that the hypothetical question posed to agent Gallion was not adequately supported by the evidence. See e.g., United States v. Altenburger, 549 F.2d 702, 704 n. 2 (9th Cir.), cert. denied, 431 U.S. 923 (1977). However, the record reveals that the...