argued submitted pasadena california: August 5, 1993.
Appeal from the United States District Court for the Central District of California. D.C. No. CV-90-3947-WJR. William J. Rea, District Judge, Presiding
Before: Norris, Wiggins, and O'scannlain, Circuit Judges.
In August 1989, the Riverside, California, police arrested Enrique Rojas at a house at 4202 Lionhead Avenue for possession of cocaine, methamphetamine, and heroin. He was subsequently convicted of possession of controlled substances for sale. After his arrest, the government seized the house and commenced a forfeiture action against the property. Alicia Harrell, Rojas' daughter, Vicente Haro Guadarrama, Alicia's live-in boyfriend, and Gerardo Guadarrama, Vicente's brother, (collectively "claimants") filed claims contending that they owned the property.
Prior to trial, the government deposed Rojas. At his deposition, he admitted that he had been involved in the sale of drugs since at least 1987. Then, on the advice of claimants' counsel, Rojas invoked his Fifth Amendment right against self-incrimination.
At trial, Rojas testified for the claimants. When the government attempted to cross-examine him about his prior history of selling drugs, he again invoked the Fifth Amendment. The court denied the government's motion to admit Rojas' deposition testimony.
The jury returned verdicts in favor of the claimants. The government then moved for a new trial, urging that claimants' counsel made improper statements in his closing argument. The district court denied the motion. This timely appeal followed.
We review the trial court's denial of a new trial motion based on evidentiary error or on misconduct for an abuse of discretion. Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir. 1985). To grant a new trial on the basis of an evidentiary ruling, the error must have been prejudicial. Id. (citing Fed. R. Civ. P. 61). Counsel's misconduct warrants a new trial only if the misconduct affected the verdict. Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir. 1990).
At trial, on direct examination by claimants' counsel, Rojas admitted that he had been convicted of possession stemming from his August 1989 arrest at the Lionhead Avenue property. On cross-examination, the government asked Rojas whether he had sold drugs prior to his arrest. In response to that question, Rojas invoked the Fifth Amendment. The government then moved to read his deposition testimony into the record. The court sustained the claimants' objection to the admission of the deposition testimony, concluding that, "I don't think you should read from the deposition, . . . because it to me appears overall to be improper for you to do that. . . . I think that if for no other reason [Fed. R. Evid.] 403 comes into play here." The government contends that the district court abused its discretion by excluding Rojas' deposition testimony.
We need not determine whether the district court erred in excluding this evidence for we are not persuaded that any resulting error was harmful. At his deposition, before invoking his Fifth Amendment privilege,*fn1 Rojas testified that he was not sure how much cocaine he had purchased for resale because
it wasn't like every day. It was like $10, $20. $50 was the very most. It was like three and a half grams, and it was like $150. But that was like every month or every two months.
He testified that when he would buy cocaine for fifty dollars a gram, he would sell it for sixty or seventy dollars. Similarly, he testified that he bought marijuana in twenty-five dollar amounts on two or three occasions and that he bought heroin two or three times. These admissions represent the entirety of Rojas' admissions at his deposition.
At oral argument before this court, the government conceded that this testimony would have done little to bolster its argument that proceeds from Rojas' drug sales were used to purchase the Lionhead Avenue property. The government argues, however, that this evidence was crucial to its contention that the claimants knew that Rojas was using the property to facilitate his drug trade. We are not convinced that the government has demonstrated prejudice. The jury had before it Rojas' arrest at the Lionhead Avenue property and his conviction for possession of drugs for sale. Moreover, the district court allowed the government to draw a negative inference from Rojas' silence. In its closing argument, the government took full advantage of that opportunity, arguing strenuously that Rojas was "a long-time well-established drug dealer"; that he was involved in sale of large amounts of drugs; that the police had arrested him at the property "with a lot of drugs on hand"; and that he was making a lot of money dealing drugs. Further, the government had every ...