James Rohrer and John Bump, co-defendants below and appellants in this court, were convicted of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a), and conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. The district court denied their motions for a new trial and they filed timely appeals. We affirm.
The government's case rested primarily on the testimony of Stephen Green, a figure in a Bay Area drug network, who testified against the defendants after the government agreed to seek a reduction in his sentence, imposed as a result of his earlier conviction on drug charges. He described seven sales of cocaine involving Rohrer and five involving Bump. The government introduced hotel and car rental receipts, airline tickets, and customs records to support Green's testimony, but the only corroboration for the appellants' involvement were records of long-distance calls made to Rohrer and Bump during the alleged conspiracy.
Appellants attacked Green's credibility. Three defense witnesses testified to Green's heavy use of drugs and its debilitating effects. On cross-examination Green admitted his past drug usage and to having experienced blackouts during the conspiracy period.
Another government witness, paid informant William Northcutt, testified against Rohrer in return for reduction of charges against him in another drug case. Northcutt, like Green, had a history of drug use and dealing. Northcutt stated that he had twice obtained cocaine from Rohrer and on other occasions negotiated unsuccessfully for drugs. The only corroboration for Northcutt's charges were records of calls he made to Rohrer's phone number during the conspiracy period. Rohrer countered Northcutt's testimony by presenting against him a number of reputation witnesses, including his ex-wife and his sister.
Against Bump, the government introduced a weighing scale and several boxes of baggies seized from Bump's home on November 2, 1981, after his arrest. This seizure came fifteen months after the last offense on which he was charged. The items tended to support Green's charge that Bump kept a scale and baggies at home to use in distributing cocaine.
QUESTIONS ON APPEAL
Rohrer and Bump first raise a variety of objections to jury instructions. Next they object to admission of Green's cooperation agreement with the government and of a sketch he drew of his drug distribution network, as well as to the exclusion of expert testimony on the effects of drug usage. They also assert that the court abused its discretion in striking post-trial affidavits that they feel demonstrate juror misconduct. Bump, on his own behalf, contends that the trial court abused its discretion in admitting the property seized in his home and in refusing to grant a limiting instruction when it ordered a rereading of testimony that pertained only to Rohrer. Finally, both Rohrer and Bump argue that even if this court holds harmless each of the alleged errors in isolation, the cumulative impact of these errors in a case resting largely upon uncorroborated accomplice testimony requires reversal. We find none of these arguments persuasive.
Jury instructions must be analyzed in the context in which they are given—as part of the whole trial. United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir.1982); United States v. James, 576 F.2d 223, 227 (9th Cir.1978). Furthermore, appellants must show not merely that the phrasing of the trial court was confusing, but that the phrasing amounted to an abuse of discretion. Abushi, 682 F.2d at 1299; James, 576 F.2d at 227.
Appellants' most nearly meritorious contention concerns an instruction that appeared to identify Green's credibility as the primary issue in this case.
A court's evidentiary rulings will be overturned only for abuse of discretion. United States v. Patterson, 678 F.2d 774, 778 (9th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 219, 74 L.Ed.2d 174 (1982). Even if error is found, the nonconstitutional errors alleged here would not require reversal unless it was "more probable than not" that they affected the verdict. Fed.R.Crim.P. 52(a); United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir.1982); United States v. Awkard, 597 F.2d 667, 671 (9th Cir.1979), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979); United States v. Valle-Valdez, 554 F.2d 911, 914-16 (9th Cir.1977).
A. The Cooperation Agreement
Appellants argue that the admission of the "truthful testimony" portions of
No such vouching occurred here. The government in no way put its prestige behind the witness; instead it was careful to ask the jury to look to the agreement to determine Green's motives. And it did not "implicitly" point to evidence outside the record. Neither the passages appellants cite from the trial transcript nor the cases cited in Rohrer's brief
B. The Prior Consistent Statements
The court admitted as a prior consistent statement a diagram Green had drawn of his distribution ring. Fed.R.Evid. 801(d)(1)(B). Green drew the diagram, which implicated Rohrer and Bump, just prior to signing his cooperation agreement. A prior consistent statement is admissible to rehabilitate a witness only if made before the witness has a motive to fabricate. United States v. Rodriguez, 452 F.2d 1146, 1148-49 (9th Cir.1972).
C. Expert Testimony
The refusal by the trial court to allow experts to testify on the effects of drug usage like Green's was not improper. Although the credibility of a witness, unlike his competency, is a question for the jury, admission of expert psychiatric testimony bearing on credibility lies in the judge's discretion, United States v. Bernard, 625 F.2d 854, 860 (9th Cir.1980); United States v. Barnard, 490 F.2d 907, 912 (9th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Such testimony threatens to usurp the jury's function of determining guilt. Id. at 912-13. Here, where two of the psychiatrists had never met Green and the third, Dr. Nelson, had only met Green once in a social setting, there was no abuse in deciding that the prejudicial value of their speculation on the effects of Green's drug use outweighed its probative value. See Bernard, 625 F.2d at 860. Dr. Nelson was allowed to testify as a percipient witness. There was no abuse of discretion.
Appellants presented the affidavits of two jurors and of two private investigators who conducted post-trial interviews with some jurors. The jurors' affidavits testify to the jurors' individual or collective thought processes; the investigators' affidavits recount the same material second hand. Evidence concerning a jury's deliberations or a juror's reasoning are inadmissible to impeach a verdict. Fed.R.Evid. 606(b); United States v. Freedson, 608 F.2d 739, 741 (9th Cir.1979); see generally United States v. Bagnariol, 665 F.2d 877, 883-89 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). Rule 606(b) is designed to prevent precisely this kind of pressure on jurors. The judge properly refused to consider the affidavits.
Three days after arresting Bump the government properly seized a scale with
Bump also criticizes the judge's failure to give a limiting instruction when ordering the rereading of testimony that pertained only to Rohrer. Additional instructions are left to the discretion of the judge. United States v. Tham, 665 F.2d 855, 858 (9th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2010, 72 L.Ed.2d 466 (1982); United States v. Collom, 614 F.2d 624, 631 (9th Cir.1979), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980). The jurors described the portion of Northcutt's testimony they wanted reread as "concerning the acquiring of Bing Wa and Baked Alaska from Jake and/or Robin Rohrer." This indicates clearly that they did not associate Northcutt's testimony with Bump. The affidavits on the jurors' use of this evidence are, of course, inadmissible under Fed.R. Evid. 606(b), as already discussed. The court did not abuse its discretion in refusing the requested instruction.
Appellants also argue that even if we can find no single reversible error, the cumulative weight of a series of near misses ought to compel reversal in a case such as this. We disagree. While conviction on the uncorroborated testimony of a single accomplice makes a defendant more likely to be prejudiced by errors than if the government had a stronger case, United States v. Berry, 627 F.2d 193, 201 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981); United States v. Hibler, 463 F.2d 455, 458-59 (9th Cir.1972), here the jury had ample opportunity to weigh the testimony of Green and of Northcutt in the light of its corroboration as well as its impeachment. The government's case was not sufficiently weak to require reversal.