United States v. Meredyth ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 2 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs. No. 98-2220
(D.C. No. CR-97-640-BB)
RICHARD MEREDYTH, (D.N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, BRORBY, and KELLY, Circuit Judges.
Defendant-Appellant Richard Meredyth appeals from his conviction of
distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B),
(b)(1)(C) and 18 U.S.C. § 2. Our jurisdiction arises under 28 U.S.C. § 1291, and
we affirm.
Because the parties are familiar with the underlying facts, we will not
restate them unless necessary for the issue on review. Mr. Meredyth contends
that the district court erred in (1) prohibiting questioning of witnesses regarding a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
$10,000 cash payment made to a government informant; (2) denying his motion
for a mistrial based on prosecutorial misconduct; and (3) denying his motion for a
continuance pending this court’s en banc decision in United States v. Singleton,
165 F.3d 1297 (10th Cir. 1999).
A.
Mr. Meredyth first contends that the district court erred in not allowing him
to bring up a $10,000 payment to a government informant during the cross-
examinations of Drug Task Force Agent Glen Alexander and the informant’s wife.
We review the court’s decision for an abuse of discretion. See United States v.
Keys, 899 F.2d 983, 987 (10th Cir. 1990).
Mr. Meredyth presented an entrapment defense at trial, testifying that he
was induced to sell cocaine to the informant by the informant’s wife. Agent
Alexander testified that both the informant and his wife had signed written
agreements with the government, and had received payments in 1997 of $11,995
for their assistance in numerous cases, in addition to a $3,000 payment for
relocation. On the second day of trial, the government informed the court that the
informant had received, the night before, a $10,000 reward from the Drug
Enforcement Administration (“DEA”). The government asked the court to
prohibit mention of the reward to the jury, representing that the informant’s wife
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was not aware of the reward. Although the court ruled that the amount of the
reward was not relevant, Mr. Meredyth’s counsel was permitted to ask Agent
Alexander whether, when testifying the day before, he had been aware of an
impending reward payment to the informant. Agent Alexander acknowledged that
he was aware that the DEA was attempting to reward the informant, but stated
that he was not certain whether or not the payment would actually be made. He
further testified that the DEA did not tell the informant that he might be
considered for a reward until after the events at issue in the trial took place, and
that the actual reward was a surprise to the informant. Later, when the
informant’s wife was called as a rebuttal witness, the court limited Mr.
Meredyth’s cross examination questions regarding payments to those made to the
informant during 1996 and 1997 by instructing counsel to “not get into the
$10,000 payment.” VII R. at 270.
Having carefully reviewed the record, we conclude that the district court
did not abuse its discretion in refusing to admit this evidence. Mr. Meredyth
made no showing that either the informant or the informant’s wife knew of the
possibility of a $10,000 reward during the time that the informant’s wife allegedly
entrapped Mr. Meredyth. Mr. Meredyth chose not to voir dire the informant’s
wife as to her knowledge of the reward. Thus, he failed to demonstrate the
relevance of this evidence. In addition, the jury was made aware of the amounts
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of substantial payments made to the informant, as well as the fact that an
undisclosed amount was paid to the informant during the time of the trial. This
distinguishes this case from the cases Mr. Meredyth cites in support of his
position, United States v. DeSoto, 950 F.2d 626 (10th Cir. 1991), and United
States v. Harvey, 547 F.2d 720 (2d Cir. 1976). In each of those cases, the trial
court “cut off completely a probative inquiry that bears on a feasible defense.”
Harvey, 547 F.2d at 723. Here, the court allowed sufficient evidence for the jury
to infer improper motive on the part of the informant’s wife.
B.
Mr. Meredyth next asserts that the district court erred in denying his
motion for mistrial based on prosecutorial misconduct. During the government’s
cross-examination of Mr. Meredyth, the prosecutor handed Mr. Meredyth a police
report describing the seizure of cocaine from a vehicle driven by Mr. Meredyth’s
brother, Joseph Meredyth. Defense counsel objected on the basis that the report
was not authored by Mr. Meredyth, and thus could not be used to refresh
recollection, and on the basis of hearsay. The court responded that the report was
not offered to refresh recollection, and delayed a ruling otherwise to see if a
proper foundation for the document could be laid. The following colloquy ensued
between the prosecutor and Mr. Meredyth:
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Q: Now, back in ‘94, your brother, Joseph, did have a 1989 Pontiac
Grand Am with New Mexico license 351 BBF, didn’t he?
A: No, he didn’t.
Q: He did not? And were you aware that he was stopped driving
that vehicle with 16 grams of crack?
VII R. at 154. Defense counsel immediately objected and asked for the comment
to be stricken from the record. The court sustained the objection and warned the
prosecutor not to do it again. Defense counsel then moved for a mistrial. The
court denied the motion, but instructed the jury “to ignore that last line of
questioning. That was improper by the prosecutor.” Id. at 156.
We review the court’s denial of Mr. Meredyth’s motion for a mistrial for an
abuse of discretion. See United States v. Joe, 8 F.3d 1488, 1498 (10th Cir. 1993).
A new trial is not warranted when it is reasonably certain that the prosecutor’s
improper question “had but very slight effect on the verdict of the jury.” United
States v. Sands, 899 F.2d 912, 916 (10th Cir. 1990) (internal quotation marks and
citation omitted). In making this determination, “we consider the strength of the
evidence against the defendant,” United States v. Oles, 994 F.2d 1519, 1524 (10th
Cir. 1993), and note that “a cautionary instruction is ordinarily sufficient to cure
any alleged prejudice to the defendant.” United States v. Peveto, 881 F.2d 844,
859 (10th Cir. 1989). Here, the jury saw videotapes of two separate occasions
when Mr. Meredyth sold cocaine base to the informant. Further, the prosecutor’s
improper question was isolated and received no response. Finally, the court
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immediately admonished the prosecutor and gave a curative instruction. In light
of these considerations, we find no abuse of discretion by the district court in
denying Mr. Meredyth’s motion for a mistrial.
C.
Finally, Mr. Meredyth argues that the district court erred in denying his
motion for a continuance pending our en banc decision in United States v.
Singleton, 165 F.3d 1297 (10th Cir. 1999). However, our disposition in Singleton
renders this issue moot.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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