United States v. Richard Aichele

941 F.2d 761, 91 Cal. Daily Op. Serv. 6180, 91 Daily Journal DAR 9211, 1991 U.S. App. LEXIS 16620, 1991 WL 138118

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 1991
• Docket: 90-10364
• Status: Published

Opinions

RYMER, Circuit Judge:

A jury convicted Richard Aichele of conspiracy to manufacture methamphetamine, manufacture of methamphetamine, possession of phenyl-2-propanone and possession of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 844 & 846. He claims on appeal that his motions for judgment of acquittal and for a new trial should have been granted, that the government committed Brady violations mandating a new trial and that the district court improperly sentenced him. We affirm.

I

Aichele moved for a judgment of acquittal, claiming insufficiency of the evidence to convict him of conspiracy to manufacture methamphetamine, manufacture of methamphetamine and possession of phe-nyl-2-propanone (p-2-p). In considering a challenge to the sufficiency of the evidence, we decide “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979) (emphasis in original).

“To obtain a conviction for conspiracy, the government must first prove the existence of a conspiracy. Once the existence of the conspiracy is shown ... the government need only prove a ‘slight’ connection between the defendant and the conspiracy.” United States v. Baron, 860 F.2d 911, 919 (9th Cir.1988), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 414 (1989) (citing United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987)).

The evidence was sufficient in this case for a rational trier of fact to conclude that Richard Aichele had at least a slight connection to the conspiracy, the existence of which he does not challenge. Evidence showed a connection, through business and family relationships, to the property at Mel-vina Avenue in Palermo, California, where government agents found a methamphetamine laboratory; several pieces of methamphetamine manufacturing laboratory equipment the agents discovered contained his fingerprints; Aichele’s keys opened the lock on the barn containing the laboratory; and both his apartment and place of business contained the distinctive odor of p-2p. Evidence also showed that the manufacture of methamphetamine at Melvina Avenue was current. Aichele proffers innocent explanations for many of his actions, but such argument misses the mark; our inquiry is whether any reasonable jury could find the elements of the crime, on these facts, beyond a reasonable doubt, not whether Aichele is plausibly not guilty. “ ‘[A] defendant’s knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and from evidence of the defendant’s actions. Acts which seem otherwise innocent, when viewed in the context of the surrounding circumstances, may justify an inference of complicity.’ ” United States v. Calabrese, 825 F.2d 1342, 1348 (9th Cir.1987) (quoting United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980)). Even putting aside evidence of an inculpatory confession,¹ we hold that a reasonable trier of fact could conclude that Richard Aichele conspired to manufacture methamphetamine.

Because the manufacturing and p-2-p possession charges are foreseeable substantive offenses committed in furtherance of the conspiracy, Aichele is also properly responsible for them. Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489, 1496-97 (1946); United States v. Murray, 492 F.2d 178, 187 (9th Cir.1973), cert. denied, 419 U.S. 942, 95 S.Ct. 210, 42 L.Ed.2d 166 (1974).

II

Aichele contends the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in failing to disclose, in a timely manner, impeachment materials relating to Harold Otis St. John, a government witness. We review challenges to a conviction based on an alleged Brady violation de novo. United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir.1988).

“Brady does not necessarily require that the prosecution turn over exculpatory material before trial. To escape the Brady sanction, disclosure ‘must be made at a time when [the] disclosure would be of value to the accused.’ ” Id. at 1403 (emphasis in original; quoting United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir.1985)). In this case the government provided Aichele with a transcript of its interview with St. John and a copy of St. John’s California rap sheet before trial. This disclosure was made at a meaningful time because a three-week holiday break in the trial gave Aichele ample opportunity to prepare its in-court examination of St. John. When a defendant has the opportunity to present impeaching evidence to the jury, as Aichele did here, there is no prejudice in the preparation of his defense. See United States v. Shelton, 588 F.2d 1242, 1247 (9th Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2822, 61 L.Ed.2d 275 (1979). Even assuming the government’s disclosure was incomplete and untimely, there was no Brady violation here. See Gordon, 844 F.2d at 1403 (substantial opportunity to use information at trial cures any prejudice caused by delayed disclosure).

When trial resumed on January 9, 1990, Aichele’s counsel advised the court that the only impeachment material still sought was St. John’s first California Department of Corrections file, which was under the control of California officials. The prosecution is under no obligation to turn over materials not under its control. United States v. Gatto, 763 F.2d 1040, 1049 (9th Cir.1985). When, as here, a defendant has enough information to be able to ascertain the supposed Brady material on his own, there is no suppression by the government. United States v. Dupuy, 760 F.2d 1492, 1501 n. 5 (9th Cir.1985) (citing United States v. Griggs, 713 F.2d 672, 674 (11th Cir.1983)).

Ill

Aichele contends that his motion for a new trial should have been granted because of prejudice resulting from St. John’s revelation that Aichele had been in prison in 1964. We review the district court’s denial of a motion for a new trial for abuse of discretion. United States v. Walgren, 885 F.2d 1417, 1426 (9th Cir.1989). “The district court’s ‘discretion will not be disturbed unless we have “a definite and firm conviction that the court ... committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” ’ ” Fjelstad v. American Honda Motor Co., 762 F.2d 1384, 1337 (9th Cir.1985) (citations omitted).

Aichele argues that the revelation of his prior incarceration is tantamount to the improper admission of bad character evidence under Federal Rule of Evidence 404(b). The district court gave a prompt curative instruction, which we must assume the jury followed. United States v. Johnson, 618 F.2d 60, 62 (9th Cir.1980). Even if St. John’s testimony constituted improperly admitted evidence of bad character, reversal would not be automatic. Prejudice from an evidentiary error, assuming there is one, might not rise to the level of reversible error, given the admissible evidence supporting the verdict and the trial court’s curative instruction. Id. If the case against a defendant is very strong, though not overwhelming, and the reviewing court is unconvinced that the admission of the evidence influenced the outcome of the case, the court may uphold the verdict. United States v. Wilson, 536 F.2d 883, 886 (9th Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 497, 50 L.Ed.2d 592 (1976). In this action, the government presented a strong case against Richard Aichele and we are unconvinced that the testimony regarding his prior incarceration influenced the outcome. Therefore, even assuming there was evidentiary error, reversal is not warranted.

Aichele argues further that the government’s line of questioning constituted prosecutorial misconduct because the question eliciting the testimony strayed from a line of questioning the trial judge suggested at a hearing on a motion in limine Aichele had filed. “To succeed on a motion for a new trial based on prosecutorial misconduct, a defendant must show first that the prosecution engaged in improper conduct and second that it was more probable than not that the prosecutor’s conduct ‘materially affected the fairness of the trial.’ ” United States v. Smith, 893 F.2d 1573, 1583 (9th Cir.1990) (quoting United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir.1986)).

We need not consider whether there was misconduct in this case because, even assuming there was, the district court did not abuse its discretion in concluding that the conduct did not materially affect the fairness of the trial. The district judge’s admonition to the jury to disregard the prior incarceration testimony was sufficient to avert prejudice to Aichele. See United States v. Rush, 749 F.2d 1369, 1372 (9th Cir.1984). The St. John testimony was not so extremely inflammatory and repetitive that it could not be cured by an admonition to the jury. Cf United States v. Gillespie, 852 F.2d 475, 479 (9th Cir.1988) (extreme prejudice from admission of improper evidence of defendant’s homosexuality could not be cured by admonition to jury). Although we disapprove of the prosecutor’s failure to adhere to the line of questioning outlined by the district court, we conclude that given the character of the evidence against Aichele, the district court’s prompt admonition to disregard the portion of St. John’s testimony and the level of prejudice resulting from that testimony, we cannot say the district court committed a clear error in judgment in concluding there was insufficient prejudice to Aichele to warrant a new trial. There was therefore no abuse of discretion in denying his motion for a new trial.

IV

Aichele claims that the district court should have granted his motion for mistrial because the government failed to ensure that St. John would not present perjured testimony. Aichele did not raise this argument before the district court. We therefore review his contention for plain error, which “is a highly prejudicial error affecting substantial rights.” United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 406 (1979).

A prosecutor can never guarantee that a witness will not commit perjury. Her duty is to refrain from knowingly presenting perjured testimony and from knowingly failing to disclose “that testimony used to convict a defendant was false.” See United States v. Endicott, 869 F.2d 452, 455 (9th Cir.1989). There is no showing here that the government failed in either duty. The alleged perjury Aichele claims — involving contact between St. John and Aichele between 1966 and 1989, including an inculpatory confession — was prompted by Aichele’s cross-examination; even assuming the testimony was perjured, the government did not elicit it. Aichele’s contention that other aspects of St. John’s testimony were perjured is mere speculation. There was thus no highly prejudicial error relating to alleged perjury.

V

The district court sentenced Ai-chele to 365 months, to be followed by a five-year term of supervised release. Ai-chele challenges the court’s application of the sentencing guidelines on two grounds, contending that he was improperly charged with a large quantity of drugs involved and that he should have been granted a reduction in offense level for acceptance of responsibility. We review “de novo the district court’s application of the Sentencing Guidelines.” United States v. Lockard, 910 F.2d 542, 543 (9th Cir.1990) (citation omitted). We must “accept the findings of fact of the district court unless they are clearly erroneous.” 18 U.S.C. § 3742(e).

A

If 100 grams or more of methamphetamine were involved in Aichele’s offenses, see 21 U.S.C. § 841(b)(l)(A)(viii), then his base offense level is 37, given his status as a career offender and the maximum penalty of life imprisonment. See U.S.S.G. § 4B1.1(A). If between 10 and 100 grams were involved, the maximum penalty would be 40 years, see 21 U.S.C. § 841(b)(l)(B)(viii), making the applicable career offender offense level a 34. See U.S.S.G. § 4B1.1(B). Aichele argues that the district court should not have imputed 200 kilograms of phenylacetic acid, a precursor chemical to methamphetamine, to him. He also contends that the conversion of that chemical into a quantity of methamphetamine for sentencing purposes was improper because, he claims, that quantity of the final product could not have been produced within the time frame of the conspiracy.

Aichele was convicted of, among other offenses, conspiracy to manufacture methamphetamine. Because coconspirators are responsible for acts their coconspirators commit in furtherance of the conspiracy, his sentence can properly reflect the quantity of substances deemed to be part of the conspiracy. See United States v. Changa, 901 F.2d 741, 744 (9th Cir.1990) (per curiam) (in sentencing defendant, district court properly considered amount of counterfeit currency seized from codefendant, when currency was part of conspiracy) (citing United States v. Murray, 492 F.2d 178, 187 (9th Cir.1973), cert. denied, 419 U.S. 942, 95 S.Ct. 210, 42 L.Ed.2d 166 (1974)). In this case, the 200 kilograms of phenylacetic acid were part of the conspiracy and it was reasonably foreseeable to the conspirators that someone would obtain it as a step toward the manufacture of the drug. See U.S.S.G. § lB1.3(a)(l) & comment, (n.l).

The district court was bound to apply an offense level “as if the object of the conspiracy ... had been completed.” U.S.S.G. § 2D1.4(a). The object of this conspiracy was to manufacture methamphetamine. The quantity of methamphetamine that could have been produced from this conspiracy, which included the 200 kilograms of phenylacetic acid, was over 100 grams of methamphetamine. See § 2D1.4, comment (n. 2) (may consider “size or capability of any laboratory involved” in approximating quantity of controlled substance where amount seized does not reflect scale of offense). The district court did not err, therefore, in applying offense level 37.

Aichele’s argument that the claimed quantity could not have been produced within the time frame of the conspiracy alleged in the indictment fails. A conspiracy to achieve a result is distinct from the result itself. If the government alleges the conspiracy took place within a certain time period, it does not necessarily follow that the result must fall within that same time period. The district court properly considered the quantity of drugs as though the object of the conspiracy, distinct from the conspiracy itself, was completed. It is irrelevant when that completion might have occurred.

B

Finally, Aichele argues that the district court erred in declining to award him credit for acceptance of responsibility. See U.S.S.G. § 3E1.1 (reduction warranted if defendant “clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct”). “Whether a defendant has accepted responsibility for a crime is a question of fact which this court reviews for clear error. The district court’s determination will not be disturbed ‘unless it is without foundation’ ” United States v. Rosales, 917 F.2d 1220, 1222 (9th Cir.1990) (quoting United States v. Smith, 905 F.2d 1296, 1301 (9th Cir.1990) (emphasis in original)).

Aichele exercised his right to remain silent at trial and refused to discuss his case with his probation officer. He did not make a statement at his sentencing hearing. Therefore, there was no indication of his contrition either before or after he was convicted. In the absence of any indicia of contrition, a reduction for acceptance of responsibility is unwarranted. United States v. Skillman, 922 F.2d 1370, 1378-79 (9th Cir.1990). The district court’s finding that Aichele had not accepted responsibility was not without foundation and was therefore not clearly erroneous. The court properly declined to award a two-point reduction.²

AFFIRMED.

1 . Aichele contends that testimony about a confession he made was perjured. We reject his argument in Section IV of our opinion, infra.

2 . Our colleague in dissent suggests that Aichele’s failure to accept responsibility could have cost him six years on his sentence. Not necessarily. Aichele’s guidelines, based on an offense level of 37 and a criminal history of VI, were 360 months to life; with the two-point offense level reduction, they would have been 292-365 months. In either case, his 365-month sentence would have been within the guideline range.