DUNIWAY, Circuit Judge:
In these cases, each of the three defendants was convicted of conspiracy to possess heroin with intent to distribute it, and of possession of heroin with intent to distribute it. Each was given concurrent sentences on his two convictions. We affirm. We consider the arguments of each appellant separately.
1. Moreno-Nunez, No. 78-3057.
At the outset of the trial, counsel for Badilla announced his intention to place his client on the stand, and to comment on the failure of Moreno to take the stand if Moreno did not do so. The court ruled "that counsel will not comment on [Moreno's] failure
In his closing argument, Badilla's counsel said:
Counsel for Badilla then turned to something else. Moreno's counsel did not ask for a curative or protective instruction.
Moreno argues that what Badilla's counsel said amounted to a comment on Moreno's failure to testify and requires a reversal. It certainly is not a direct comment on Moreno's not testifying, and we do not think that the jury was likely to so consider it, especially in the light of what the judge said during his instructions:
We have more than once ruled that comment on a defendant's failure to testify, whether by the prosecutor, the court, or a codefendant, is improper. United States v. King, 9 Cir., 1976, 552 F.2d 833, 844; United States v. De La Cruz Bellinger, 9 Cir., 1970, 422 F.2d 723, 726. But we have not ruled that statements such as those made by Badilla's counsel in this case require reversal. We decline to do so now.
In United States v. Hines, 1972, 147 U.S.App.D.C. 249, 455 F.2d 1317, the comment was quite similar to the comment in our case. The Hines court said:
In Hines, the judge offered a protective instruction, which counsel rejected. In our case, counsel did not ask for one. Hines is closely in point. See also United States v. Washington, 5 Cir., 1977, 550 F.2d 320, 328; United States v. Hodges, 5 Cir., 1974, 502 F.2d 586, 587. De Luna v. United States, 5 Cir., 1962, 308 F.2d 140, is quite different. There, counsel for a codefendant who testified referred twice, specifically, to De Luna's failure to testify. See 308 F.2d at 142 and at 155 (concurring opinion). Not so here. De Luna was distinguished in De La Cruz Bellinger, Hines, Washington and Hodges, all supra. In our case, counsel for Badilla went to the very edge of committing reversible error, but did not quite cross the line.
2. Ramirez-Ruiz, No. 78-3059.
a. Comment on failure to testify.
Ramirez makes the same argument as Moreno. However, Ramirez testified. He does not explain how what counsel for Badilla
b. Sufficiency of the evidence.
We have examined the evidence against Ramirez and find it sufficient.
3. Badilla-Yescas, No. 78-3058.
a. Denial of severance.
It was not error to deny Badilla's motion to sever, which was based on his desire to call Moreno to the stand and compel him either to testify or to invoke his privilege against self-incrimination. Badilla did not show that his defense probably would have been helped by his being able to comment on Moreno's refusal to testify, assuming that, if called, Moreno would have refused. Under these circumstances, it was not error to deny Badilla's motion to sever. United States v. De La Cruz Bellinger, supra, 422 F.2d at 726. The court did not abuse its discretion. See United States v. King, supra, 552 F.2d at 846. What we said there applies here: "From the information before us, it seems as conceivable that [Moreno] would refuse to testify . . ., or would even further implicate [Ramirez], as that he would exculpate [Ramirez] . . . ."
b. Testimony about negotiations with Moreno, in which other substances were mentioned.
In setting the stage for its case, the government presented narcotic agent witnesses who testified that, when they first negotiated with Moreno to purchase heroin from him, he also offered to get them other "contraband," and marijuana. Badilla argues that this evidence should have been excluded under Rule 404(b), F.R.Ev. We disagree. The evidence was material as showing Moreno's willingness to deal in illegal drugs, including heroin, and showed his "motive, opportunity, intent, preparation, [and] plan" (Rule 404(b). Here we think that "the probative value of [the evidence] is not outweighed by the danger of unfair prejudice," United States v. Espinoza, 9 Cir., 1978, 578 F.2d 224, 227, so that the evidence was properly admitted. As the court said in United States v. Magnano, 2 Cir., 1976, 543 F.2d 431, 435, "the Government offered the prior crime evidence for the legitimate purpose of showing the background and development of the conspiracy . . . ."
c. Instructions about the conspiracy.
The evidence would support a finding by the jury that Badilla and Ramirez joined in a conspiracy with Moreno shortly before the final transaction in the course of which all were arrested. The jury, after it had begun to deliberate, sent the judge a written question:
After some discussion with all counsel, the court called the jury in and told them:
This language was different from what the court told counsel that he was going to say. It omits a statement that the jury "must find from the evidence beyond a reasonable doubt that he was a member of the conspiracy at some time." (RT343)
In each appeal, the judgment appealed from is affirmed.