Opinion
D.C. No. CR-97-00050-WFN
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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)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 Nov. 3, 1999.
Appeal from the United States District Court for the District of Guam Wm. Fremming Nielsen, Chief Judge, Presiding John S. Unpingco, District Judge, Presiding.
Before D.W. NELSON, KOZINSKI, and W. FLETCHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Glenn Mark Manley ("Manley") appeals his conviction and sentence for distribution of methamphetamine, possession of methamphetamine with intent to distribute, and importation of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 952(a). We affirm.
First, the district court did not abuse its discretion by allowing testimony regarding Manley's prior use and distribution of methamphetamine, and his possession of a pager. We have consistently held that evidence of prior use or sale of illegal drugs is relevant under Federal Rule of Evidence 404(b) in prosecutions for possessing, importing, or intending to distribute illegal drugs. See United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir.1982). We have also allowed government agents to testify that the use of pagers is consistent with a criminal modus operandi. See United States v. Webb, 115 F.3d 711, 713-14 (9th Cir.1997); United States v. Wilson, 7 F.3d 828, 835-36 (9th Cir.1993).
Second, the government's use of plea agreements and grants of immunity for testimony is permissible under 18 U.S.C. § 201(c)(2). Although this court has yet to directly address whether § 201(c)(2) applies to the government, "we have repeatedly approved of the government's use of incentives to elicit relevant testimony." United States v. Flores, 172 F.3d 695, 700 (9th Cir.1999). Here, the district court went the extra step to guard against prosecutorial abuse of authority by instructing the jury to exercise caution when considering the testimony of those individuals who had testified under a grant of immunity.
Third, we find no evidence of prosecutorial misconduct. Manley failed to show that he was prejudiced by the alleged misconduct and that it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The prosecutor did implicitly vouch for a witness when she noted that the individual was "under a plea agreement to testify truthfully." See United States v. Necoechea, 986 F.2d 1273, 1278 (9th Cir.1993). Because such vouching is mild, however, the trial judge cured the fault by instructing the jury to consider with greater care the testimony of those witnesses who were providing evidence in exchange for immunity. See id. at 1280. The error was harmless.
Fourth, the trial judge did not err by instructing the jury on the elements of 21 U.S.C. § 841(a)(1) without defining "intent." The trial transcripts show that the judge discussed the instructions with the attorneys prior to giving them to the jury, and at no time did the defense counsel object to them. After reviewing the record, we fail to find plain error here as the instructions neither affected Manley's substantial rights nor undermined the fairness, integrity, or public reputation of the proceedings. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999).
Fifth, the trial judge's questioning of witnesses was not so prejudicial as to violate due process. A judge's broad discretion in supervising trials includes the prerogative to examine witnesses, clarify evidence, and expedite the trial process. See United States v. Laurins, 857 F.2d 529, 537 (9th Cir.1988). The defendant is entitled to a new trial only if the judge displays a "deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994). We find no such evidence of judicial bias.
Finally, trial courts may dismiss jurors for tardiness. A defendant's right to be tried by a particular tribunal may be balanced by a judge's affirmative duty " 'to detect potentially contaminating influences on juror deliberations and implement appropriate measures to remedy juror misconduct." ' United States v. Gay, 967 F.2d 322, 324 (9th Cir.1992) (citation omitted). The trial judge's decision to dismiss the tardy jurors was well within his discretion.
AFFIRMED.