U.S. v. Elksnis, 75--1124

• Decision Date: 24 December 1975
• Docket Number: No. 75--1124,75--1124
• Citation: 528 F.2d 236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Velga Lisa ELKSNIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 236

528 F.2d 236

UNITED STATES of America, Plaintiff-Appellee, v. Velga Lisa ELKSNIS, Defendant-Appellant.

No. 75--1124.

United States Court of Appeals Ninth Circuit.

Dec. 24, 1975.

Peter M. Shannon, Jr., Atty., Crim. Div., U.S. Dept. of Justice, Washington, D.C. (argued), for plaintiff-appellee.

Robert W. Ripley, Jr., San Diego, Cal. (argued), for defendant-appellant.

OPINION

Before MERRILL, CHOY and KENNEDY, Circuit Judges.

CHOY, Circuit Judge:

Ms. Elksnis appeals from a criminal conviction in the district court on charges relating to possession and importation of illegal drugs. We affirm.

Background

On June 9, 1974, Elksnis entered the United States as a passenger in an automobile driven by Timothy Stambough. When asked what they were bringing in from Mexico, Stambough responded that they had a bottle of liquor. Observing that Stambough appeared nervous, the customs inspector directed them to the secondary inspection area. After entering the secondary office, Elksnis also appeared nervous to the inspector. A personal search was ordered, and a matron took her into a search room. Once in the room, but before the search began, the matron asked Elksnis if she had anything to turn over. It is apparently a common practice to ask such a question, and female suspects are said to often present contraband in response. Elksnis responded affirmatively and removed three packages containing cocaine and opium from her vagina.

Elksnis's defense at trial was that she had been acting as a government agent and hence lacked the specific intent required by the statutes under which she was charged. She had previously been arrested in Boston for selling heroin to a federal undercover agent and had agreed to assist the agents there in an effort to have that charge dismissed or reduced. She apparently made some attempt to do so, but with no successful results. She then flew to Los Angeles and contacted agents there, one of whom testified that she had given them only vague information and that she had been specifically told not to go to Mexico. The border incident and arrest followed shortly thereafter.

In a jury trial, Elksnis was found guilty of all five counts on which she had been charged: (1) conspiracy to illegally import 88 grams of cocaine, a controlled substance, (2) illegal importation of that cocaine, (3) conspiracy to possess that contraband with intent to distribute, (4) possession with intent to distribute the cocaine, and (5) possession of 1/2 gram of opium, a controlled substance, variously in violation of 21 U.S.C. §§ 841(a)(1), 844, 846, 952, 960 and 963.

Issues

Elksnis's appeal presents three issues: (1) whether her trial counsel was incompetent for having permitted and caused improper instructions to have been given to the jury; (2) whether the trial court erred in refusing to admit a tape recording into evidence on the ground that it was cumulative evidence that would have wasted time; and (3) whether her admission or declaration of the contraband in response to the inquiry prior to the personal search precludes her convictions for illegal importation.

Competence of Counsel

As requested by Elksnis's trial counsel, the court instructed the jury on an entrapment defense. With new counsel on appeal, Elksnis now argues that the defense's theory was not that she had been entrapped, but rather that she lacked the requisite specific intent because she thought she was acting as a government informant. Thus, it is argued, the given charge served to confuse the jury and failed to properly instruct them on the specific intent issue. The failure to object to instructions at trial ordinarily precludes raising an objection on appeal under F.R.Crim.P. 30. However, Elksnis presents the contention in terms of ineffective assistance of counsel, claiming that the submission of and failure to object to the instructions on entrapment establish the incompetence of her trial counsel.

To establish a claim of incompetent or ineffective counsel Elksnis has the burden of demonstrating that counsel failed to render reasonably effective assistance, and the result was a denial of fundamental fairness. Smith v. United States, 446 F.2d 1117, 1119 (9th Cir. 1971); see also United States v. Martin, 489 F.2d 674, 677 (9th Cir. 1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3073, 41 L.Ed.2d 668 (1974). The alleged incompetence here does not even approach this standard.

It is questionable whether submission of improper instructions by itself could establish counsel's assistance as being constitutionally deficient; but we need not reach that question for the instructions given here do not appear to have been erroneous. In reviewing jury instructions, we must judge them in context and as part of the whole trial. Isolated, individual statements do not by themselves establish error. The question is whether the complete package was misleading or represented a statement inadequate to guide the jury's deliberations. United States v. Park, 421 U.S. 658, 673--676, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). The charge here referred to and explained the specific intent requirement several times, and it was discussed in defense counsel's closing argument as well. The instructions on entrapment now objected to by Elksnis were themselves phrased in terms of specific intent. The charge accurately laid out the specific intent issue for the jury and so cannot be called inadequate.

Nor do we believe that the entrapment instructions were improper as likely to have confused the jury. As noted, they were presented in terms of Elksnis's intent. Moreover, there was some notion of entrapment lurking in the background of the trial, not in the usual sense of an undercover government agent playing a role as a direct criminal participant, but in terms...