Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-89-01352 ACK. Alan C. Kay, District Judge, Presiding
Before: Goodwin, Fletcher, and Brunetti, Circuit Judges.
Daniel Lucas Ramo appeals his conviction for possession and distribution of crystal methamphetamine, contending that he was entrapped and that the evidence was insufficient to convict. We affirm.
A. Sufficiency of the Evidence
There was sufficient evidence to convict Ramo. Burks v. United States, 437 U.S. 1, 17 (1978). Officer Pascual testified that he purchased crystal methamphetamine from Ramo on three separate occasions, that Ramo indicated a willingness to engage in repeated methamphetamine transactions, that Ramo was familiar with prevailing market conditions for methamphetamine and negotiated over the price of his methamphetamine sales to Pascual. This testimony was corroborated by the recorded telephone conversations between Ramo and Pascual and also by Ramo's 1988 statement to police admitting that he used and sold methamphetamine, which tended to prove that Ramo was predisposed to commit the charged offenses.
In regard to Ramo's "chain of custody" argument, we find that the district court did not abuse its discretion in admitting the methamphetamine in evidence. Ramo cites no evidence of tampering or any reason to believe that the drugs were not properly handled by police or were otherwise not in substantially the same condition as when the crimes were committed. United States v. Kaiser, 660 F.2d 724, 733 (9th Cir. 1981).
The district court did not err in giving an "undercover agent" instruction in conjunction with the entrapment instruction requested by Ramo. Considered as a whole, the jury instructions fairly and adequately covered the issues presented and were not misleading. United States v. Spillone, 879 F.2d 514, 525 (9th Cir. 1989), cert. denied, 111 S. Ct. 210 (1990).*fn1 Because the undercover agent instruction was expressly conditioned on a lack of entrapment, it was not confusing to the jury and did not serve to divert the jury's attention from the issue of Ramo's preDisposition. United States v. North, 746 F.2d 627, 630-31 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985). The instruction did not invade the province of the jury because it did not endorse the government's case or instruct that the government's witnesses were to be believed. United States v. Hoyt, 879 F.2d 505, 510 (9th Cir. 1989).
The district court also did not err in refusing to instruct the jury that knowledge of the quantity of methamphetamine distributed was an element of the offense. United States v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir. 1991). Finally, the district court did not err in declining to instruct the jury that venue was an element of the substantive offense. United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir. 1989) (as amended).
C. Objections to Evidence from the May 1988 Search
To establish Ramo's preDisposition to traffic in narcotics, the government proposed to introduce evidence of crystal methamphetamine, marijuana, and drug paraphernalia found during a search of Ramo's house on May 31, 1988. Ramo moved to suppress on the ground that the warrant authorizing the search was invalid. The district court denied Ramo's motion and admitted the evidence pursuant to Federal Rule of Evidence 404(b).
1. Denial of an evidentiary hearing
Ramo argues that the district court erred in refusing to hold an evidentiary hearing on the motion to suppress at which Ramo could have cross-examined Officer Talon about areas of the warrant affidavit that Ramo contends are conclusory. To be entitled to an evidentiary hearing on a suppression motion
(1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be ...