Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted June 29, 1989.

C.D.Cal.

AFFIRMED.

Appeal from the United States District Court for the Central district of California; William J. Rea, District Judge Presiding.

Before ALARCON and NELSON, Circuit Judges, and PAUL G. ROSENBLATT, District Judge.

MEMORANDUM

Appellant Marvin Bonga appeals his conviction of conspiracy to commit murder, murder, and possession of contraband in prison. For the reasons stated below, we affirm.

On November 2, 1984 Eugene Leader, a correctional officer at the Lompoc Correctional Facility was on duty in the J Unit when he heard a low moan. He hurried to the cell from which the sound was coming, while sounding a body alarm he was wearing. He reached Cell C19, appellant Marvin Bonga's cell, and pulled down a blanket covering the door. He saw the victim, Alfred Bateman, lying sideways on a bed and appellant standing nearby holding a knife. Appellant then stabbed Bateman five times while saying, "you f------ snitch, this is what you get," as Leader watched. Other officers arrived and Bonga surrendered. Bateman subsequently died from multiple stab wounds to the chest.

Appellant was indicted on August 8, 1985 for conspiracy to commit murder, 18 U.S.C. § 1117, murder, 18 U.S.C. § 1111, and possession of contraband (a knife) in prison, 18 U.S.C. § 1791. Also named as defendants in counts one and two were inmates Stephen Jackson and Elbert Shabi. Shabi subsequently became a witness for the prosecution. The grand jury returned a First Superseding Indictment charging co-defendant Jackson, additionally, with obstruction of justice for soliciting perjured testimony from inmate Frank Torres. After a three-week trial, appellant was convicted on all three counts.

Bonga raises three issues on appeal: (1) that the district court erred in admitting the victim's out-of-court statements to several witnesses under the state of mind exception to the hearsay rule; (2) that the district court erred in joining appellant's trial based on three counts, with the trial of his co-defendant charged with the same three counts and an additional fourth count; and (3) that the district erred in denying appellant's motion for a new trial based on prosecutorial misconduct.

1. Admission of victim's out-of-court statements.

Appellant argues that the district court erred in admitting out-of-court statements made by the victim, Alfred Bateman, to several witnesses, based on the state of mind exception to the hearsay rule. Objections to these statements were made at trial based on both hearsay and on sixth amendment grounds. A district court's evidentiary rulings are reviewed for abuse of discretion, United States v. McClintock, 748 F.2d 1278, 1291 (9th Cir.1984); see also United States v. Faust, 850 F.2d 575, 584 (9th Cir.1988), United States v. Ponticelli, 622 F.2d 985, 992 (9th Cir.), cert. denied, 449 U.S. 1016 (1980), overruled on other grounds, United States v. DeBright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc).

a. Bateman's statements to Correctional Officer Thomas Long.

Appellant argues that the statements made to Thomas Long, a correctional office at Lompoc prison, were hearsay and were not properly admitted to show Bateman's then existing state of mind under Federal Rule of Evidence 803(3). Long testified regarding a conversation he had with Bateman on January 5, 1983, wherein Bateman told Long of an escape plot involving Bonga. Bateman said he was being pressured to retain escape paraphernalia and wanted nothing to do with it. A written note by Bateman to Long, also admitted into evidence, said Bateman was being pressured by two Indians to hold the paraphernalia. In a subsequent conversation with Long, Bateman identified Bonga as one of the Indians. The defense asserts that these statements do not go to Bateman's then existing state of mind, but rather are inadmissible as a reaccounting of previous conversations which cover why Bateman held a particular state of mind. The government counters that the statements show that Bateman was afraid of Bonga and thus are introduced to defeat Bonga's self-defense claim.

Federal Rule of Evidence 803(3) provides that the hearsay rule does not exclude:

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed....

Appellant argues that the statements do not go to Bateman's state of mind and were offered to prove the matter asserted. The government contends that the truth of the matter was not relevant, only Bateman's state of mind was. The government asserts that whether or not there actually was an escape plot was irrelevant; Bateman told the authorities that there was a plot involving Bonga and that Bateman was therefore afraid of Bonga. It was established through other circumstantial evidence that Bonga learned of Bateman's "snitching" to authorities. The fact that Bateman did inform authorities of an escape plot involving Bonga is what prosecution sought to establish through Long's testimony. Indeed, after Bateman's conversation with Long, Bateman was put in the prison's segregation unit for his own safety until he was transferred to another prison in March 1983.

The district court did not abuse its discretion in admitting Bateman's verbal statements and his note to Long. First, they were not offered for the truth of the matter asserted and are, therefore, not hearsay. Fed.R.Evid. 801(c). In United States v. Gibson, 690 F.2d 697, 701 (9th Cir.1982),cert. denied, 460 U.S. 1046 (1983), this court allowed witnesses to testify regarding statements made to them by salesmen of the defendant. The witnesses, investors in the defendant's business, testified that the defendant's salesmen had made various false statements to them pertaining to such things as the financial assets of the defendant's business. The purpose of the salesmen's statements was to entice the witnesses to purchase franchises from the defendant. The salesmen's statements to the witnesses were admitted to establish the existence of a scheme to defraud investors. Defense objected to this testimony on hearsay and sixth amendment grounds. We held that the testimony was not hearsay since the statements were not offered for their truthfulness. The purpose of the testimony was solely to establish the fact that the statements had been made. Id. at 700. Similarly, in this case the importance of Bateman's statements to Long is the fact that they were made. Whether or not true, Bateman informed authorities of an escape plan involving Bonga. There is substantial evidence in the record to prove that Bonga knew Bateman had informed the authorities and considered Bateman a "rat" and a "snitch." Shabi, Bonga's co-conspirator and co-defendant, testified at trial regarding this. In addition, Correctional Officer Long testified that inmates generally learn of the reason another inmate is in the segregation unit through the prison "rumor mill." The statements by Bateman were not offered for the truth of the matter, only to show they were made. They are thus not hearsay. Fed.R.Evid. 801(c). See also Haddad v. Lockheed California Corp., 720 F.2d 1454, 1456 (9th Cir.1983) (not hearsay when not offered to prove the truth of the complaints).

There is a second reason why Bateman's verbal statements to Long were properly admitted. They establish Bateman's state of mind at the time they were made, thus falling under Rule 803(3). Bateman's state of mind was fear of Bonga. However, in addition to establishing Bateman's state of mind, "this court has identified three factors bearing on the 'foundational inquiry on admissibility' under Rule 803(3): contemporaneous, chance for reflection, and relevance." United States v. Emmert, 829 F.2d 805, 809-10 (9th Cir.1987) (quoting Ponticelli, 622 F.2d at 991).

The issue raised here by appellant is the relevance of the statements. "[T]he state of mind declaration must be relevant to some issue in the case." Ponticelli, 622 F.2d at 991. Appellant argues that the statements to Long were made in January 1983. Bateman was not killed until November 2, 1984. The government counters that the relationship between Bateman and Bonga was, in effect, frozen in time during the intervening year and a half. Bateman was placed in the segregation unit at Lompoc for his own safety immediately after first informing authorities of Bonga's escape plan in his conversation with officer Long. Then in March of 1983, two months after the statements were made, Bateman was transferred from the Lompoc segregation unit to another prison. Bateman remained in the other prison facility until July 23, 1984. Upon his return, Bateman again entered the segregation unit at Lompoc until his voluntary release into the general prison population on September 17, 1984, approximately one and one-half months before he was killed. The government's argument is convincing here. The statements were relevant in that they helped to establish Bateman's fear of Bonga and to establish why he was in the segregation unit. They ultimately are relevant in establishing a motive for the murder. As the government points out, the relationship between Bonga and Bateman did not change between 1982 when the first statements were made, and 1984 when Bateman was killed.

With regard to the contemporaneous issue, Ponticelli was concerned with the amount of time which lapsed between a statement of the declarant and the event to which the statement pertained. Ponticelli's concern was the reliability of the declaration. Id. at 991. When Bateman made his statements to Long, they concerned an alleged existing escape plot. The statements were made immediately prior to Bateman's entering the prison's segregation unit, thus satisfying Ponticelli's contemporaneousness concerns.

The district court did not abuse its discretion in admitting Bateman's statements to Long.

Bonga also raises a sixth amendment confrontation clause violation regarding Long's testimony. Admission of an out-of-court statement does not violate the confrontation clause when the declarant is unavailable and the statement bears sufficient "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 59, 73 (1979). Bateman was deceased and obviously unavailable. Bateman's statements to Brown were not offered for the truth of the matter asserted, but to establish that they were made. Thus, the concern regarding reliability would seem to rest on Long's testimony. The defense was fully allowed to cross-examine Long.

b. Admission of Bateman's statements to Correctional Officer Robert Perdue.

Correctional Officer Robert Perdue also testified, over the objections of appellant, regarding a conversation he had with Bateman on July 23, 1984. That was the day Bateman returned to Lompoc prison from the facility to which he had been transferred for the past year and three months. The subject of their conversation was Bateman's refusal to go into the general population. This was clearly admissible for the purpose of establishing Bateman's state of mind, fear of entering the general prison population. Fed.R.Evid. 803(3). The remainder of Perdue's testimony concerned why and how prisoners are placed in the segregation unit. Perdue also established that Bateman remained in the segregation unit until September 17, 1984. This testimony was not hearsay.

c. Admission of Bateman's statements to inmate Stephen C. Brown.

Appellant also objects to the testimony of inmate Stephen C. Brown which pertained to conversations Brown had with Bateman while Brown was also confined to the segregation unit with Bateman. Brown testified that Bateman told Brown that he, Bateman, felt that he had enemies in the prison population and did not know if he should go into that population. Bateman specifically named Bonga as his enemy. Bateman said this was due to an incident in 1982 wherein Bateman informed to authorities on Bonga and Bonga therefore considered Bateman a "snitch." Bateman further told Brown that his fear of Bonga was due to Bateman's revelations to other inmates regarding their homosexual relationship, wherein Bateman made Bonga loose face. Although it was clearly established that Bateman and Bonga had had a homosexual relationship, the revelations indicated that Bonga had been a passive partner, which is frowned upon by other inmates. Brown told Bateman that Bateman would probably be all right if he stayed to himself. Brown also said he would talk to Bonga.

Again, all of Bateman's statements to Brown were admitted by the district court under the state of mind exception to the hearsay rule, Fed.R.Evid. 803(3). The government contends that the statements establish that Bateman's state of mind was fear of Bonga.

The first two statements, Bateman's statement that he had enemies and did not know if he should go into the general prison population, and his naming of Bonga as one of the enemies, would clearly fall within the state of mind provision. Both statements establish that Bateman was afraid to enter the general prison population and that Bateman was afraid of Bonga. The statements also establish Bateman's motive for remaining in the segregation unit. See Fed.R.Evid. 803(3).

The more difficult statements to assess for error are the ones Bateman made to Brown regarding the reasons for Bateman's fear of Bonga. Appellant cites United States v. Cohen, 631 F.2d 1223 (5th Cir.1980), which held that Rule 803(3) does not permit into evidence statements as to why the declarant had a particular state of mind. Id. at 1225. Cohen based its holding on the fact that Rule 803(3) expressly excludes from the operation of the rule "a statement of belief to prove the fact believed." Id. (emphasis added). Thus Cohen permitted witnesses to relate any direct statements the declarant made concerning his state of mind and prevented them from testifying as to his statements of belief. Id. "[T]he state-of-mind exception does not permit the witness to relate any of the declarant's statements as to why he held a particular state of mind or what he might have believed that would have induced that state of mind." Id. (emphasis added). See Emmert, 829 F.2d at 810 (citing this passage with approval).

Similarly, in this case Bateman's statements to Brown regarding why he was afraid of Bonga clearly fall in the belief category. Bateman explained to Brown the reasons he believed Bonga might be his enemy. This statement does not fall within the hearsay exception of Rule 803(3). See Cohen, 631 F.2d at 1225; Emmert, 829 F.2d at 810.

The admission of these statements, however, does not constitute reversible error. A district court's evidentiary ruling will be reversed only when there has been an abuse of discretion, only if that evidentiary error would more likely than not have affected the verdict. Faust, 850 F.2d at 585 (citing Emmert, 829 F.2d at 808). If, however, introduction of inadmissible hearsay violates the confrontation clause, the district court's ruling will not be reversed if the statements did not affect the verdict beyond a reasonable doubt. See United States v. Castillo, 615 F.2d 878, 883 (9th Cir.1980). The determination of which standard of review should be applied to these inadmissible statements is not necessary since it appears beyond a reasonable doubt that they would not have affected the verdict, thus satisfying the stricter standard. As discussed previously, it was established through other testimony at trial that Bonga did learn that Bateman informed authorities and that Bonga considered Bateman a "snitch." It was also clearly established that Bonga and Bateman did have a homosexual relationship in 1982. Additionally, inmate Walter Dennis Kisner testified for the prosecution concerning conversations he overheard between appellant, Bonga, and co-defendant, Jackson, in October 1984. Kisner heard Bonga say he was going to kill Bateman, to which he heard Jackson respond that it was a good idea. Kisner then sent a note to advise prison authorities that Bateman might be killed. Thus, the introduction of Bateman's inadmissible statements to Brown offered no new evidence for the jury to consider in reaching their verdict. Therefore, it appears beyond a reasonable doubt that they would not have affected the verdict in any way. Since these statements could not have prejudiced Bonga, their admission was not reversible error.

d. Admission of Bateman's statements to inmate Walter Dennis Kisner.

Inmate Walter Dennis Kisner testified regarding a conversation he had with Bateman in October 1984, to which appellant objected. The subject matter was Bateman's fear of Bonga. Kisner further testified that on November 2, 1984, the date of Bateman's death, Kisner had another conversation with Bateman. Bateman told Kisner that everything was all right and that Bateman was going to get high.

The statements regarding Bateman's fear of Bonga, in the October conversation, clearly related to Bateman's state of mind and are admissible under Rule 803(3). They establish Bateman's fear of Bonga. The statement in the second conversation, where Bateman said that everything is all right, also established Bateman's state of mind at that time; unfortunately, he no longer feared Bonga. Additionally, Bateman's statement that he was going to get high also is permissible under Rule 803(3), as establishing Bonga's present intent. All of these statements were relevant, contemporaneous, and made without any chance for reflection. See Ponticelli, 692 F.2d at 991.

The district court did not abuse its discretion in allowing Bateman's statements to Kisner into evidence.

e. Appellant's sixth amendment claim regarding Bateman's statements to Perdue, Brown, and Kisner.

Appellant argues that joinder of his trial with that of his co-defendant, Jackson, who was charged with an additional count of obstruction of justice for soliciting perjured testimony, was not proper under Fed.R.Crim.P. 8(b). Proper joinder is an issue of law which is reviewed de novo. United States v. Vaccaro, 816 F.2d 443, 448 (9th Cir.), cert. denied, 108 S.Ct. 295 (1987). Rule 8(b) which governs joinder of two or more defendants, provides that:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Fed.R.Crim.P. 8(b) (emphasis added).

Appellant argues that the obstruction of justice count pertains to an act which is not part of the acts or transactions which are part of counts one through three, namely the conspiracy, murder, and possession of contraband counts. He bases this argument on the fact that the solicitation of perjured testimony occurred after the murder of Bateman. However, whether acts are part of a "series of acts or transactions" under Rule 8(b) is determined in a flexible manner by the degree to which they are related. United States v. Satterfield, 548 F.2d 1341, 1344 (9th Cir.1971) (citing United States v. Friedman, 445 F.2d 1076, 1083 (9th Cir.), cert. denied, 404 U.S. 958 (1971)). The primary considerations in making this determination are the goals of Rule 8(b), which are judicial economy and convenience. "[T]he primary purpose of this kind of joinder is to insure that a given transaction need only be proved once." United States v. Roselli, 432 F.2d 879, 901 (9th Cir.1970) (citing Baker v. United States, 401 F.2d 958, 971 (D.C.Cir.1968)). "Rule 8(b)'s 'goal of maximum trial convenience consistent with minimum prejudice' is best served by permitting initial joinder of charges against multiple defendants whenever the common activity constitutes a substantial portion of the proof of the joined charges." Id. at 899 (quoting 8 J. Moore, Moore's Federal Practice § 8.06).

In this case, proof of the common activities of Bonga and his co-defendant clearly constituted the substantial portion of the proof offered at trial. Conducting two separate trials for Bonga and Jackson would definitely defeat the goals of economy and efficiency. On the contrary, identical proof would have to have been offered at each trial. Joinder of Bonga's trial with that of Jackson was proper under Rule 8(b).

However, even when charges against two or more defendants are properly joined, a defendant may move for a severance under Fed.R.Crim.P. 14. Vaccaro, 816 F.2d at 449. Rule 14 provides that, "at the discretion of the trial judge, a severance may be ordered when it appears that a defendant may be significantly prejudiced by a joint trial with his co-defendants." United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856 (1980). Additionally, co-defendants jointly charged are generally to be jointly tried. Id. See also United States v. Doe, 655 F.2d 920, 926 (9th Cir.1980). Recent cases by this court have required that the defendant show that joinder was so prejudicial that it outweighed the dominant concern of judicial economy. Vaccaro, 816 F.2d at 449 (quoting United States v. Douglass, 780 2d 1472, 1478 (9th Cir.1986)) (citation omitted). See also Satterfield, 548 F.2d at 1347. A party seeking reversal based on denial of a severance motion has the burden of proving clear, manifest or undue prejudice of such a magnitude that he was denied a fair trial. Escalante, 637 F.2d at 1201. Escalante further stated that a defendant must show more than that a separate trial would have given him a better chance for acquittal. The defendant must additionally show a violation of a substantive right, such as lack of opportunity to present an individual defense. Id. at 1201.

Applying these rigorous standards to the facts of this case, Bonga was not so prejudiced by the testimony pertaining to the solicitation of the perjured testimony that he was denied a fair trial. Although this evidence did prejudice Bonga somewhat, it does not rise to the level necessary to justify a reversal of his conviction. See Satterfield, 548 F.2d at 1347 (even permissible joinder under 8(b) will often result in some prejudice to a defendant). A defendant must demonstrate that a joint trial is so manifestly prejudicial that it compels the court's discretion to sever. United States v. Doe, 655 F.2d 920, 926 (9th Cir.1980). See also United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir.1976), cert. denied, 429 U.S. 1111 (1977). The Doe court noted that this is a difficult burden and a trial judge's ruling will rarely be disturbed on review. Id. at 926 In Doe, one of the co-defendants wished to testify on behalf of the other defendant. Doe's contention was that he was severely prejudiced by the joint trial because in order to testify to exculpate his co-defendant, he would be incriminating himself. He said he was thus denied his substantive fifth amendment right to remain silent in his own defense. This court found that it was not an abuse of discretion for the trial court to deny the motion. "The joint trial was not 'so prejudicial as to require the exercise of discretion in only one way....' " Id. (citations omitted).

Clearly in our case, the prejudice to Bonga's defense was even less than that in Doe. Doe's testimony was crucial to his co-defendant's exculpation and critical to his own defense. The testimony pertaining to the obstruction of justice count in Bonga's case, may have bolstered the case against Bonga, but it is not tenable to say he would, or even might, have been acquitted without the jury having heard it.

Additionally, Bonga has shown no violation of a substantive right. He does claim that this testimony hurt his self-defense theory. Appellant argues that it was crucial to his defense to discredit Shabi's testimony, a co-conspirator and the government's witness. Frank Torres, the inmate whose perjured testimony was solicited by two notes from co-defendant Jackson, testified that he was supposed to discredit Shabi. However, even disregarding Torres' testimony, there was overwhelming evidence presented at trial to corroborate Shabi's testimony. It is therefore unlikely that the admission of Torres' testimony at the joint trial prejudiced Bonga.

In sum, the joint trial was not so prejudicial that the district court judge could have exercised his discretion in only one way. It was not an abuse of discretion to deny Bonga's severance motion.

3. The district court did not err in denying Bonga's motion for a new trial based on prosecutorial misconduct.

Appellant argues that remarks made by the government during opening and closing arguments constitute misconduct and deprived him of his constitutional right to a fair trial. Prosecutorial comments to which defendant objects at trial, as Bonga did, are reviewed for harmless error. United States v. Young, 470 U.S. 1, 14 (1985); United States v. Endicott, 803 F.2d 506, 513 (9th Cir.1986); United States v. Chavez-Vernaza, 844 F.2d 1368, 1377 (9th Cir.1987). "The inquiry is whether allegedly improper remarks considered in the context of the entire trial affected the jury's ability to judge the evidence fairly." United States v. McKoy, 771 F.2d at 1212. See also, United States v. Hastings, 461 U.S. 499, 511 (1983) (it is the duty of the reviewing court to consider the trial as a whole and to ignore errors that are harmless). In addition, this court has repeatedly held that a trial judge may cure the effect of improper prosecutorial comments by admonishing counsel to refrain from such remarks or by giving appropriate curative instructions to the jury. See Endicott 803 F.2d at 513. (quoting United States v. McKoy, 771 F.2d 1207 (9th Cir.1985) (emphasis added); see also United States v. Birges, 723 F.2d 666, 672 (9th Cir.), cert. denied, 466 U.S. 943 (1984) ( "Improprieties in counsel's argument to the jury do not constitute reversible error 'unless they are so gross as probably to prejudice defendant and the prejudice has not been neutralized by the trial judge.' ") (emphasis added) (quoting United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.), cert. denied, 430 U.S. 971 (1977)).

In Endicott the prosecution made an improper remark and this court held that any reasonable possibility of harm to the defendant was prevented when the trial judge immediately took steps to neutralize the government's remarks by giving appropriate instructions to the jury. Similarly in Bonga's case, the judge immediately sustained all of Bonga's objections to the improper remarks. The remarks were then either stricken and/or appropriate instructions were given to the jury. The district judge's immediate response prevented any reasonable possibility of harm to Bonga.

In all of the cases on which appellant relies the judge neither struck any of the improper remarks, nor were appropriate instructions given to the jury. For example, in United States v. Modica, 663, F.2d 1173 (2nd Cir.1981), cert. denied, 456 U.S. 989 (1982), cited by appellant, the court held that the judge should have stricken the remarks and immediately given proper instructions to the jurors pertaining to the remarks. Id. at 1179. Additionally, the court held that in sum, the prosecutor's three improper remarks, "although improper and uncorrected, did not result in substantial prejudice to appellant or deprive him of a fair trial." Id. at 1182 (emphasis added).

In Bonga's case, the district judge promptly neutralized the prosecutor's comments by sustaining Bonga's objections and by properly instructing the jury regarding the remarks. See Chavez-Vernaza, 844 F.2d at 1377; see also Endicott, 803 F.2d at 513; Vaccaro, 816 F.2d at 451; United States v. Alvarado, 838 F.2d 311 (9th Cir.), cert. denied, 108 S.Ct. 2880 (1988).

Bonga was not prejudiced by the governments remarks, therefore the district court did not err in denying his motion for a new trial.

The judgment of the District Court is AFFIRMED.