Opinion
NOT FOR PUBLICATION
Argued and Submitted July 28, 2006 Pasadena, California
Appeal from the United States District Court for the Southern District of California No. CR-05-00059-MLH Marilyn L. Huff, District Judge, Presiding.
Before: GIBSON , RYMER, and CLIFTON, Circuit Judges.
The Honorable John R. Gibson, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Victor Manuel Angulo-Palacios appeals his conviction of (1) importation of 50 or more kilograms of marijuana in violation of 21 U.S.C. §§ 952 and 960; and (2) possession of 50 or more kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1), as well as the sentence that was imposed as a result. We affirm.
First, Angulo-Palacios argues that the district court violated his Fifth Amendment rights by allowing the government to cross-examine him regarding his possession of cocaine. A defendant who elects to take the stand, however, §cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination.§ United States v. Green, 648 F.2d 587, 594 (9th Cir. 1981) (internal quotation marks and citation omitted); see also United States v. Black, 767 F.2d 1334, 1341 (9th Cir. 1985). Thus, when Angulo-Palacios voluntarily testified on his own behalf, he waived his Fifth Amendment rights regarding those cross-examination inquiries attempting to elicit testimony that was reasonably related to material issues raised on direct. Angulo-Palacios§s knowledge of §any drugs§ in the Ford Explorer is reasonably related to his knowledge of marijuana in the vehicle, which was discussed at length on direct, such that we conclude that his Fifth Amendment rights were not violated.
Second, Angulo-Palacios contends that the district court erred in allowing the cross-examination questions and responses at issue to stand over the objections of Angulo-Palacios§s counsel. During trial, the district court (1) first ruled that the cocaine evidence was inadmissible; (2) then, a short time later, overruled the defense counsel§s repeated objections to the government§s cross-examination inquiries that, if answered honestly, would elicit testimony about the cocaine and which seemed aimed at eliciting precisely that testimony; (3) next, stopped Angulo-Palacios mid-sentence as he began to disclose information regarding his cocaine possession; (4) immediately afterwards, denied defense counsel§s request to strike the testimony (that it had intercepted immediately prior); and (5) finally, denied the defendant§s related proposed curative jury instruction and motions for mistrial and a new trial. These evidentiary rulings appear to be inconsistent, particularly the refusal to strike or otherwise address the statement by Angulo-Palacios that the court itself interrupted by telling defendant that §you don§t have to say that.§
We do not need to conclude whether any of those ruling amounted to an abuse of discretion, however, because any error was harmless. It was §more probable than not that the erroneous admission of the evidence did not affect the jury§s verdict.§ United States v. Vizcarra-Martinez, 66 F.3d 1006, 1017 (9th Cir. 1995) (internal quotation marks and citation omitted); see United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005). The testimony given by Angulo -Palacios in response to the disputed questions was brief and unclear, and it is doubtful that the jury even understood it, let alone relied upon it in reaching its guilty verdict. The story told by defendant was dubious on its face, his testimony was imbedded with internal inconsistencies, and his credibility was further undermined by what happened at secondary inspection. Because overwhelming evidence supported the guilty verdict, any evidentiary error was harmless. See United States v. Allen, 425 F.3d 1231, 1235 (9th Cir. 2005).
Third, Angulo-Palacios argues that the district court erred in denying his motions for mistrial and a new trial on the grounds of prosecutorial misconduct, contending that the government committed misconduct when asking Angulo-Palacios questions that aimed to elicit information regarding the excluded cocaine evidence. Prosecutorial misconduct occurs where the prosecution has, §under the guise of artful cross-examination, § revealed otherwise inadmissible evidence to the jury. United States v. Sanchez, 176 F.3d 1214, 1222 (9th Cir. 1999) (internal quotation marks and citation omitted); see United States v. Shapiro, 879 F.2d 468, 472 (9th Cir. 1989). Here, the district court permitted the government§s questioning, over objections from defense counsel. Since the court explicitly condoned the government§s cross-examination, we cannot conclude that the government committed prosecutorial misconduct. Finally, Angulo-Palacios argues that the district court should have reduced his offense level by two points under the safety-valve provisions. See U.S.S.G. § 2D1.1(b)(9) (§If the defendant meets the criteria set forth in subdivisions (1) to (5) of subsection (a) of § 5C1.2 . . . decrease by two levels.§); U.S.S.G. § 5C1.2(a) (listing the five factors). We conclude that the court did not abuse its discretion in impliedly holding that Angulo-Palacios failed to satisfy the final requirement, that §[n]ot later than the time of the sentencing hearing, [he] truthfully provided to the Government all information and evidence [he possessed] concerning the offense.§ U.S.S.G. § 5C1.2(a)(5). This requirement mandates §complete candor regarding the charged offense prior to sentencing, § such that the district court must find that the defendant §provided all the information available to him, regardless of whether it was useful or already known to the government.§ United States v. Real-Hernandez, 90 F.3d 356, 361 (9th Cir. 1996). In light of the jury§s guilty verdict, the district court hardly abused its discretion in concluding that Angulo-Palacios had not provided all the information available to him.
AFFIRMED.