U.S. v. Milner

• Decision Date: 23 April 1992
• Docket Number: No. 90-50187,90-50187
• Citation: 962 F.2d 908
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry D. MILNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 908

962 F.2d 908

UNITED STATES of America, Plaintiff-Appellee, v. Larry D. MILNER, Defendant-Appellant.

No. 90-50187.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1992.

Decided April 23, 1992.

Terry Amdur, Pasadena, Cal., for defendant-appellant.

Gregory W. Alarcon, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before: FARRIS, NOONAN and TROTT, Circuit Judges.

FARRIS, Circuit Judge:

Larry Milner appeals his jury conviction for conspiracy and possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1988). He argues that his conviction was invalid because: 1) the district judge made prejudicial comments during the voir dire; 2) evidence of past drug use was improperly admitted; 3) the prosecutor improperly "vouched" for the credibility of a government witness; and 4) the police lacked probable cause. We affirm.

In May, 1988, Larry Milner asked Diana Watson to act as a courier for a drug transaction. She declined. On June 2, 1988, Milner went to Watson and asked her to "take [a] package" to Detroit. Milner promised Watson $1500, and Watson accepted.

After missing an early flight, the two checked in at a nearby airport hotel. Milner gave Watson some money to purchase a jacket and pantyhose. After her return, Milner gave her a package wrapped in brown paper and instructed her on the proper method of drug concealment. Milner attached bundles of cocaine and marijuana to the brown package and Watson placed the entire bundle under her pantyhose.

Around midnight, the two departed for the Los Angeles airport. After arriving at Two Los Angeles Police Detectives, Everett Gossett and Patti May, were working undercover in the Narcotics Smuggling Detail at the airport terminal. They observed Milner as he entered, left and re-entered the ticket line with Watson. They noticed that Milner wore sunglasses, seemed nervous and carried no luggage. They also observed that Watson wore a fur coat, which was unusual because it was a warm night. She was walking unsteadily, in a manner that suggested she was concealing something under her dress. Watson carried two briefcases and one small nylon bag. Milner purchased two one-way tickets to Detroit.

                the airport, Milner walked inside and surveyed the terminal.   He then walked outside and had Watson join him in the ticket line
                

Watson and Milner left for the departure gate. Gossett and May approached the two, identified themselves and asked for identification. Watson produced a California driver's license and Milner a birth certificate. The airline tickets were issued to "D. Watson" and "L. Watson". Milner explained the discrepancy by stating that Watson had made the reservation. Both stated they were not carrying any drugs or large quantities of cash.

May asked for permission to search the bags and discovered that one briefcase was empty while the other only contained papers. Gossett conducted a pat-down search of Milner but discovered nothing. After searching Watson's purse, Watson removed her coat and inquired whether May wanted to search her person. May discovered a hard object in Watson's groin area. Believing the object to be drugs, May immediately placed Watson under arrest. Milner spontaneously turned around and put his hands behind his back to be cuffed. He was placed under arrest as well. The package was later found to contain one pound of heroin and small quantities of marijuana and cocaine.

On June 3, 1988, Watson and Milner were charged with possession of heroin with intent to distribute. After the charges were dropped against Milner, Watson entered into an agreement to plead guilty for a lesser sentence of conspiracy in return for her cooperation in the government's case against Milner. Watson received a 366 day sentence and no additional post-jail supervised time.

On June 30, 1989, the government again indicted Milner on two counts: 1) conspiracy to possess heroin with intent to distribute; and 2) possession of heroin with intent to distribute. On January 8, 1990, Judge Rea held that the government had probable cause to arrest Milner, and denied his motion to suppress evidence. Just before trial, the case was assigned to another judge, Senior District Judge A. Andrew Hauk.

While on bail, Milner violated release conditions and was placed back in confinement. During jury selection, Milner was dressed in civilian clothing, and three deputy United States Marshals dressed in matching blue blazers sat directly behind him. When one of the Marshals left the courtroom, the district judge made the following comments:

THE COURT: Now somebody is leaving the courtroom. Well, so that the jury knows, we're not just seating prospective jurors. The gentlemen in question here, the defendant, is in custody and the two persons who are sitting immediately behind him are United States Marshals which we permit for security sake, security of the jurors, security of the Court, security of everybody.

MR. AMDUR (Counsel for Milner): Excuse me, Your Honor. May we approach the bench for a moment?

THE COURT: No. No. No. I know defendants don't like to say that, but it's true. And I don't fool around with a lot of gobbly gook.

Those two men there, the one that just left, I wondered what was going on, were marshals. They trade off; and the only other solution is using handcuffs and leg irons. We don't do that, try not to, unless we have somebody like Norega [sic], which we don't have. So let's remember that.

You can't show any bias against the man because he is being watched by persons That doesn't mean this is any indication of the guilt of the defendant. Not at all. It means that we just want to be sure that there is no breach of security and no flight. But it does not indicate in the slightest degree any indication of guilt. That's to be determined by you the jurors under the instructions of the Court that I will be giving you in due course.

who, at the order of the Court, are participating in what we call security, necessary security, in view of all the facts at the hands of the Court.

Counsel for Milner moved for a mistrial, which Judge Hauk denied. At trial's end, Judge Hauk gave the following instruction:

The fact that the defendant may be in custody, of course, does not mean that the defendant committed the offenses charged or any other offense. Defendants are committed to custody and released from custody for a wide variety of reasons not relevant to your consideration. The fact that a defendant is or is not in custody should not enter into your deliberations in any way.

Milner was convicted on both counts and was sentenced to eighty seven months. This appeal followed.

DISCUSSION

I. Fair Trial

Milner first argues that Judge Hauk's voir dire comments deprived him of a fair trial. Although we review the district court's voir dire for an abuse of discretion, United States v. Powell, 932 F.2d 1337, 1340 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 256, 116 L.Ed.2d 210 (1991), facts that may have deprived Milner of a fair trial are reviewed de novo. Norris v. Risley, 918 F.2d 828, 830 (9th Cir.1990).

The Supreme Court has permitted the use of identifiable security officers for security purposes in the courtroom. Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). Guards do not necessarily indicate that a defendant is "particularly dangerous or culpable." Id. at 569, 106 S.Ct. at 1346. Jurors can and do draw a wide number of inferences from the presence of security personnel in the courtroom; many of which do not suggest that the defendant is particularly dangerous or culpable. Id. Our duty is to assess the risk of prejudice to determine whether specific conduct was "so inherently prejudicial as to pose an unacceptable threat to [the] right to a fair trial." Id. at 572, 106 S.Ct. at 1347.

In Halliburton, we affirmed a conviction although two jurors momentarily observed the defendant in handcuffs during a recess. United States v. Halliburton, 870 F.2d 557 (9th Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 575 (1989). We held that several curative measures undertaken by the district court "eliminated the risk of actual prejudice to Halliburton's right to a fair trial." Id. at 561. These measures included: 1) allowing Halliburton to later appear without restraint during recesses; 2) instructing the marshals to be more discreet; and 3) instructing the jury that the custody status of a defendant is irrelevant to determine guilt or innocence. Id. at 562. See also United States v. Acosta-Garcia, 448 F.2d 395, 396 (9th Cir.1971) (mere fact that some jurors viewed defendants in handcuffs was not so prejudicial as to require a mistrial).

In United States v. Bland, 908 F.2d 471, 473 (9th Cir.1990), we held that the judge's comments during voir dire concerning an unrelated charge against the defendant for molestation, torture and murder of a seven year old girl warranted reversal. Although the judge later gave curative instructions, we observed that "this is one of those cases where the prejudice could not be removed by curative instructions." Id.

Judge Hauk's comments border on those we found so troubling in Bland. During oral argument, even the government conceded that the comments were inappropriate. Judge Hauk suggested that the reason Milner was surrounded by court officers was for security; "security of the jurors, security of the Court, security of everybody." This suggested that Milner posed a security risk. It was improper for Judge Hauk to dismiss Mr. Amdur's concerns as "gobbly gook". Further, Judge Hauk improperly suggested that Milner warranted special security by commenting that the security was "necessary security, in view of all the facts at the hands of the court."

Inappropriate remarks do not mandate a new trial. Milner must still establish that h...