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United States v. Hensch

filed: September 23, 1991.

UNITED STATES OF AMERICA, PLAINTIFFS-APPELLEE,
v.
DAVID HENSCH, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Central District of California; DC No. CR 87-0851-AT-13; A. Wallace Tashima, District Judge, Presiding.

Norris and Thompson, Circuit Judges, and Samuel P. King, District Judge.*fn**

MEMORANDUM

This is a companion case to that of United States of America v. Mackbee, CA. No. 88-5348, CR. No. 87-5348-AT-15, which was argued and submitted on August 12, 1991. We have considered each of appellant Hensch's several issues on appeal and find that they are without merit.

Appellant does not contest the existence of the conspiracy charged, only that he was not a member of that conspiracy. On appeal after a conviction the evidence must be viewed in the light most favorable to the prosecution.

A review of the record reveals ample evidence upon which a reasonable jury could find guilt beyond a reasonable doubt. The district court properly inquired into the allegations of jury misconduct in connection with the reading of a newspaper article and reached a well reasoned and appropriate decision. Appellant's motion for a severance was properly denied. Appellant has failed to produce evidence to support his allegation that typed transcripts of audio tapes reviewed by the jury were inaccurate. Therefore, the district court did not err in allowing the jury to review the transcripts. See United States v. Koska, 443 F.2d 1167, 1169 (2d Cir.), cert. denied, 404 U.S. 852 (1971). Nor did the district court err in failing to give a jury instruction which was submitted after the jury had begun its deliberations. Late jury instructions may be prejudicial because they deny the prosecution or defense the opportunity to address the instruction in closing arguments. See United States v. Gaskins, 849 F.2d 454, 458-60 (9th Cir. 1988).

The judgment in the case of David Hensch ...


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