Appeal from the United States District Court for the Central District of California, Los Angeles. D.C. No. CR 89-0836-KN-3, D.C. No. CR 89-0836-KN-8. David V. Kenyon, District Judge, Presiding
Before: Hall, Rymer, Circuit Judges, and Fitzgerald, District Judge.*fn*
Robbin Mozee and Albert Beckley were both members of an eleven person cocaine trafficking conspiracy. Mozee appeals the district court's denial of her motion to suppress evidence and its refusal to grant her a sentence reduction for acceptance of responsibility. She also alleges prosecutorial misconduct in the form of improper vouching during closing argument. Beckley appeals the district court's denial of his motions to suppress evidence and sever counts 6 and 7 of the indictment. Beckley further claims there was insufficient evidence to support both his conviction for carrying a firearm during a drug trafficking crime and his conviction for participating in a single conspiracy. He also appeals his sentence. We affirm.
A. Suppression of wiretap evidence.
In United States v. Young, a memorandum opinion arising out of the appeal of codefendant Young, we affirmed the district court's refusal to suppress wiretap evidence admitted at trial. United States v. Young, No. 91-50197 (9th Cir. May 7, 1993). Young and Mozee both joined codefendant Cunningham's motion to suppress, but raised no additional arguments at trial. They were all convicted at the same trial. On these facts, the law of the case established in Young governs and the district court's refusal to suppress is affirmed. See United States v. Schaff, 948 F.2d 501 (9th Cir. 1991).*fn1
B. Prosecutorial Misconduct.
Mozee argues comments made by the prosecutor during closing argument constituted improper vouching and statements of personal impression. Since Mozee failed to raise these objections at trial, we review for plain error. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993); Fed.R.Crim.P. 52(b).
The Ninth Circuit has recently noted that no bright line rule exists as to when vouching will result in reversal. Necochea, 986 F.2d at 1278. Rather, a number of factors are considered. See id. When reviewing for plain error, the court must also balance the seriousness of the vouching against the strength of the curative instruction and closeness of the case. Id. If the defendant's guilt is not a close question, reversal is not warranted. Id. at 1281. Here, assuming without deciding the prosecutor made improper comments, this case is not so close as to require reversal for plain error.*fn2
Mozee argues that the district court erred in declining to adjust her sentence downward based on acceptance of responsibility. Two other circuits have found that a claim for downward departure for acceptance of responsibility is waived if:
1) appellant did not file an objection to the presentence report and 2) did not object at sentencing when no downward departure was granted. United States v. Brokemond, 959 F.2d 206, 210 (11th Cir. 1992); United States v. Allison, 953 F.2d 870, 875 (5th. Cir.), cert. denied, 112 S. Ct. 2319 (1992).
Here, Mozee did not object to the probation officer's recommendation that no acceptance of responsibility reduction be granted. Further, she made no objection at sentencing when no downward departure was granted. In arguing against waiver, Mozee relies exclusively on a letter written to the district court before actual sentencing. We do not ...