Appeal from the United States District Court for the Central District of California. D.C. No. CR-91-1060-WJR-0. William J. Rea, District Judge, Presiding.
Before: Betty B. Fletcher, William C. Canby, Jr., and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Fletcher.
Ronald Olen Burrows appeals from his conviction for drug trafficking crimes, arguing that two of the district court's jury instructions were erroneous. Burrows also attacks four aspects of the sentence imposed by the district court. We affirm the conviction, and conclude that the district court ruled correctly on three of the four sentencing issues raised by Burrows. We remand so that the court may re-address the fourth.
In early December 1991, "Bugsy," an informant working for the DEA, had a series of consensually monitored telephone conversations with Burrows. Bugsy offered to put Burrows in contact with a prospective buyer who, Bugsy said, wished to purchase five pounds of methamphetamine. Unbeknownst to Burrows, the prospective buyer was an undercover DEA agent. Bugsy and Burrows arranged to meet at a liquor store on December 5, 1991, and thereafter to meet the supposed purchaser.
Burrows testified that on December 4, 1991, the day before the meeting with Bugsy and the buyer, he contacted his source, codefendant Rodriguez. On December 5, before the scheduled meeting, Burrows and Rodriguez drove to a hotel room in Oceanside, where Rodriguez retrieved the methamphetamine and gave it to Burrows. Burrows then drove back to the San Fernando Valley, joined up with Bugsy, and went with him to a shopping center parking lot. Bugsy and Burrows were met there by DEA agent Steve Youngblood, posing as a buyer. Burrows was arrested after he produced the five pounds of methamphetamine.
Burrows immediately waived his Miranda rights and attempted to convince the agents that he too was working undercover, helping Riverside County Deputy Sheriff Kenneth Vann to arrest Rodriguez. Burrows agreed to assist the DEA agents by placing a call to Rodriguez, his supplier. Burrows was eventually able to summon Rodriguez by telling him the deal was in danger of unravelling because the buyers had not brought enough money. Rodriguez arrived at the shopping center with two companions and prepared to negotiate. He and his companions were arrested.
Burrows continued to cooperate with the government, twice meeting with the U.S. Attorney's Office and the DEA and inculpating Rodriguez and his two companions, Paez and Rivas. Burrows also continued to maintain, however, that at the time of his arrest he was working undercover for Deputy Vann. Not believing this story, the government prosecuted Burrows along with Rodriguez and Paez.
The three were tried together. At trial, Burrows testified that he was or believed himself to have been working undercover in an attempt to help Deputy Vann. Vann testified that he had visited Burrows in jail at Burrows's request and had asked him to target Rodriguez, but that Burrows had never worked as an informant for him, never paged him during the events giving rise to this case, and was not working for him at the time of those events.
The district court instructed the jury on the defense of public authority. The jury rejected Burrows's defense, and convicted him of possession with intent to distribute methamphetamine and conspiracy to distribute methamphetamine.*fn1 On appeal, Burrows argues that the district court erred by instructing the jury that he could make out a defense of public authority only if he reasonably believed that he was acting pursuant to police authority. Burrows also contends that the district court erred by instructing the jury, at the behest of Rodriguez, that the testimony of a drug addict - which Burrows at one time had been - should be regarded with special scrutiny.
Burrows was sentenced to 262 months in prison. He contests four aspects of his sentence: (1) the district court's refusal to consider granting a downward departure based on youthful lack of guidance; (2) the district court's failure to grant a downward adjustment based on acceptance of responsibility; (3) the government's failure to recommend a downward departure based on substantial assistance; and (4) the district court's refusal to entertain collateral attacks on prior convictions used for computing criminal history points.
A. Drug Addict Instruction
After the close of evidence, the court instructed the jury as follows:
If a witness is a narcotics addict, there are additional reasons why his testimony should be considered with great care. An addict has a constant need for a supply of drugs and for money to support his habit, and may also have an abnormal fear of imprisonment in which his supply of drugs might be cut off. These are special circumstances which you may consider in weighing testimony of this kind. You of course may give the testimony such weight as you think proper, after considering all relevant circumstances.
RT 6/9/92 at 138. This instruction was requested by codefendant Rodriguez, who had been inculpated by Burrows's testimony; the instruction was read over Burrows's objection. The court also admonished the jury to examine the testimony of an accomplice and of a cooperating individual with greater care than the testimony of an ordinary witness. It is undisputed that all three instructions were intended to refer to Burrows. Burrows now argues that the addict instruction was inappropriate, particularly in the context of the two other cautionary instructions given by the court. We review the jury instructions as a whole, United States v. Joetzki, 952 F.2d 1090, 1095 (9th Cir. 1991), and accord to the trial Judge substantial latitude, so long as the instructions fairly and adequately covered the issues presented. United States v. Powell, 955 F.2d 1206, 1210 (9th Cir. 1992).
We have long recognized the appropriateness of the instruction given by the district court when it refers to government witnesses. People of Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1261 (9th Cir. 1980); United States v. Bernard, 625 F.2d 854, 858-59 (9th Cir. 1980). At the same time, we have recognized that each of the following circumstances renders the addict instruction unnecessary: (1) a dispute as to the witness's addiction; (2) adequate opportunity for the adverse party to cross-examine the witness about his addiction; and (3) the court's reading of other cautionary instructions. United States v. Ochoa-Sanchez, 676 F.2d 1283, 1289 (9th Cir.), cert. denied, 459 U.S. 911 (1982).*fn2
Burrows argues that because all three circumstances were present in his case, the addict instruction should not have been given. But Ochoa, like the scores of other cases dealing with the addict instruction, arose in a different context than this case. In nearly every other case, the defendant appeals the district court's refusal to give an instruction pertaining to the testimony of a prosecution witness - not the district court's granting of the request to give an instruction pertaining to the testimony of the defendant himself.*fn3 Hence the focus in the caselaw has been on whether an addict instruction is necessary as it applies to a government witness - not on whether it is permissible when it refers to a defendant.
We agree with Burrows that in this case the instruction was unnecessary, if for no other reason than that the jury was given other cautionary instructions. See Ochoa, and cases cited at note 2, supra.*fn4 The question here, however, is whether the instruction was permissible. That is a separate inquiry. See, e.g., United States v. Smith, 692 F.2d 658, 661 (10th Cir. 1982) (under certain circumstances, court may give addict instruction even where unnecessary), cert. denied, 459 U.S. 1200 (1983).
We need not decide the degree to which Burrows's position as a defendant renders the instruction impermissible, see Godfrey v. United States, 122 U.S. App. D.C. 285, 353 F.2d 456, 458 (D.C. Cir. 1966) (addict instruction that aimed "more pointedly at accused" than at prosecution witnesses is plain error), because in any event the instruction should not have been given if there was no adequate evidentiary basis for it. See, e.g., United States v. Tabacca, 924 F.2d 906, 912 (9th Cir. 1991) (defendant not entitled to instruction which has no foundation in evidence); United States v. Pace, 833 F.2d 1307, 1314 (9th Cir. 1987) (same), cert. denied, 486 U.S. ...