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United States v. Everett

filed*fn*: June 3, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LONNIE EVERETT, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. MELVIN WARE, DEFENDANT-APPELLANT.



Appeal from the United States District Court, for the Central District of California. DC# CR 91-117-ER. Edward J. Rafeedie, Presiding

Before: Kozinski, Suhrheinrich**fn** and T.g. Nelson, Circuit Judges.

MEMORANDUM

A.

1.

The district court did not abuse its discretion in denying Everett's motion for a continuance to procure witnesses because Everett failed to satisfy the requirements for such a request. See United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1052 (9th Cir. 1990); United States v. Sterling, 742 F.2d 521, 527 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985). Although Everett identified the two potential witnesses, he failed to "establish with any precision" what their testimony would be and whether they had in fact agreed to testify. United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978). Defendant also failed to demonstrate that the witnesses could have been produced if the motion was granted. Defense counsel stated that he had been attempting unsuccessfully to subpoena Mr. Randall for several weeks, and that Mr. Hooker, who had been subpoenaed, failed to appear. Furthermore, defendant had until the final day of trial to secure the witnesses and failed to do so. The denial was not improper. See Gonzalez-Sandoval, 894 F.2d at 1052; United States v. Hernandez, 608 F.2d 741, 746 (9th Cir. 1979); Hoyos, 573 F.2d at 1114. Finally, defendant did not establish due diligence in seeking the witnesses' presence at trial in that he had over three months to secure the witnesses, and has never explained the reason for the delay.

2.

The most that can be said of Agent Senecal's testimony to the grand jury concerning the street value of the 107.7 grams of cocaine base delivered to Mack was that it was incorrect. In any event, the alleged perjury was not material to defendant's guilt or innocence, and was therefore "necessarily harmless." Reversal is not required. United States v. Sitton, 968 F.2d 947, 954 (9th Cir.), cert. denied, 113 S. Ct. 478 (1992) (employing a harmless error analysis).

3.

Because Everett failed to make a motion for acquittal at the end of trial, he has waived any claim for reversal based on insufficiency of the evidence. United States v. Stauffer, 922 F.2d 508, 511 (9th Cir. 1990) (citing United States v. Mora, 876 F.2d 76, 77 (9th Cir. 1989)). We therefore review only for plain error. Id.

The following facts support the jury's finding that Everett and Ware conspired together: (1) Ware introduced Mack to Everett, (2) Ware responded twice when Mack paged Everett, (3) Ware checked to see if Mack was satisfied with the January 8, 1991 deal, (4) Ware urged Mack to complete the second narcotics deal with Everett and (5) Ware offered to make the second delivery himself. This is proof of more than a slight connection to the conspiracy, which is all that is necessary to support a conviction. United States v. Mares, 940 F.2d 455, 459 (9th Cir. 1991).

Everett's argument that the absence of fingerprint analysis, recordings of wire transmissions, and photographs of the delivery of cocaine base prevents a finding of possession ignores the testimony of Mack and the surveillance officers. There is no error.

4.

Although courts generally decline to review ineffective assistance of counsel claims on direct review, United States v. Daly, 974 F.2d 1215, 1218 (9th Cir. 1992), there is no reason to defer a ruling here since defendant stipulated to the evidence of the weight and purity of the cocaine base before it was presented to the jury. See United States v. Molina, 934 F.2d 1440, 1446 (9th Cir. 1991) (ineffective assistance of counsel claims may be ...


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