Appeal from the United States District Court for the Eastern District of California. D.C. No. CR-89-106-LKK. Lawrence K. Karlton, District Judge, Presiding.
Arthur L. Alarcon, Alex Kozinski and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Rymer; Dissent by Judge Kozinski.
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.
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 phenyl-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 Melvina 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-2-p. 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,*fn1 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).
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)).
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 1334, 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 ...