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US Court of Appeals Click icon to view Opinion:

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
                                                     No. 97-30142


v.
                                                     D.C. No.
                                                     CR-96-02042-1-AAM
BERNARD VINCENT MONTGOMERY,
Defendant-Appellant.


UNITED STATES OF AMERICA,
                                                     No. 97-30163
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CR-96-02055-AAM
LLOYD RAYMOND BUXTON,
                                                     OPINION
Defendant-Appellant.


Appeals from the United States District Court
for the Eastern District of Washington (Yakima)
Alan A. McDonald, District Judge, Presiding


Argued and Submitted
March 3, 1998--Seattle, Washington


Filed May 13, 1998

Before: Arthur L. Alarcon and Michael Daly Hawkins,
Circuit Judges, and Rudie M. Brewster,* District Judge.


Opinion by Judge Alarcon

_________________________________________________________________
*Honorable Rudi M. Brewster, United States District Judge for the
Southern District of California, sitting by designation.
                               4715


SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1998 by West Group.
_________________________________________________________________


Criminal Law and Procedure/Double Jeopardy

The court of appeals affirmed judgments of conviction. The
court held that under 21 U.S.C. S 846, factual distinctions
between alleged criminal enterprises allows the government
to charge separate conspiracies without violating the Double
Jeopardy Clause.


An investigation by officers of the Yakima City/County,
Washington narcotics unit, the Drug Enforcement Adminis-
tration (DEA), and the Royal Canadian Mounted Police
(RCMP) began with the arrest of Joanne Blair for selling
methamphetamine. Blair accepted an offer of immunity, iden-
tified appellant Bernard Montgomery as her supplier, and
implicated Edwin McClain as a member of an international
network that manufactured and distributed methamphetamine.


When officers searched Montgomery's residence, they
found evidence of drug-trafficking and his companion, Helen
Farley. Farley volunteered to cooperate and corroborated
Blair's statements regarding manufacturing operations in Ore-
gon and Canada; international transfers of drugs and cash; and
distribution channels in Washington and Canada. She also
identified appellant Lloyd Buxton as Montgomery's distribu-
tor. Further investigation yielded evidence of drug operations
at all three locations that corroborated the descriptions of the
network that Blair and Farley had given.


Officers of the DEA and RCMP showed photographs of
Montgomery, McClain, and another conspirator to Lance
Blondin, an employee of a Canadian chemical supply firm.
Blondin identified Montgomery as the person who had bought
a large quantity of a key methamphetamine ingredient.


An indictment charged Montgomery in separate counts
with conspiracy to manufacture methamphetamine, and con-


                               4716


spiracy to distribute methamphetamine, in violation of 21
U.S.C. S 846; conspiracy to import methamphetamine; distri-
bution of methamphetamine; and possession of ephedrine
with intent to manufacture methamphetamine. Buxton was
charged with conspiracy to distribute methamphetamine and
conspiracy to import methamphetamine. A superseding
indictment charged McClain as a codefendant with Montgom-
ery and Buxton.


Several weeks prior to trial, Blondin asked the DEA to fax
him a photo of Montgomery; he later called a DEA agent to
confirm that Montgomery was the person in the photo. The
day before Blondin was scheduled to testify, he entered the
courtroom and saw Montgomery at the defense table. He had
asked a DEA agent to bring him to the courtroom so that he
could be sure that Montgomery was the man who had pur-
chased the chemicals. In his testimony, Blondin so identified
Montgomery.


The district court rejected McClain's proposed Sears jury
instruction that an individual must conspire with at least one
bona-fide co-conspirator to meet the requirements of a con-
spiracy. His request arose from the government's use of tele-
phone records to link McClain and Montgomery in the
conspiracy counts by showing that they both spoke with Blair,
who according to McClain was acting as a government agent
at the time.


The district court dismissed Count Three against Buxton
(conspiracy to import methamphetamine). In Jury Instruction
16 the court stated that the evidence was insufficient as a mat-
ter of law to convict Buxton of that charge. The district court
told the jury in Instruction 17 that it was not necessary to find
that a defendant charged with conspiracy directly conspired
with the other participants if the defendant knew or had rea-
son to know that the other conspirators were involved with
persons with whom the defendant directly conspired.


                               4717


Montgomery and Buxton were convicted on the remaining
charges. On appeal, Montgomery contended that charging the
separate counts of conspiracy under S 846 violated the Double
Jeopardy Clause; Blondin's in-court identification was tainted
by improper identification procedures; the district court erred
in failing to instruct the jury that a defendant may not be con-
victed for conspiring with a government agent; the court erred
by failing to instruct the jury that "reasonable foreseeability"
is a necessary element of Pinkerton liability (for substantive
offense by co-conspirator in furtherance of conspiracy); the
court erred by not instructing that commission of an overt act
is a necessary element of a conspiracy alleged under 21
U.S.C. S 963; the jury instructions misstated the knowledge
requirement of the crime of conspiracy; the court erroneously
provided the jury with transcripts of trial testimony; and that
the court erred by informing the jury that Count Three was
dismissed for lack of evidence.


Buxton joined Montgomery in asserting the Pinkerton,
overt act, and transcript issues. He also contended that the dis-
trict court erred in admitting evidence of his prior conviction
for conspiracy to manufacture methamphetamine; the court
erred in not instructing that a mere buyer-seller relationship is
insufficient to establish a conspiracy; and that there was insuf-
ficient evidence to support his conviction for conspiracy to
distribute methamphetamine.


[1] The Double Jeopardy Clause prohibits subdivision of a
single conspiracy into multiple violations of one conspiracy
statute. Whether the object of a single agreement is to commit
one or more crimes, it is in either case that agreement which
constitutes the conspiracy the statute punishes. The one agree-
ment cannot be taken to be several agreements and hence sev-
eral conspiracies.


[2] The primary constitutional test to determine whether
two counts in the same or subsequent indictments charge the
same offense is the "same evidence" or "Blockburger" test.


                               4718


However, providing double jeopardy protection requires
application of a different test. [3] To determine whether two
conspiracy counts charge the same offense, courts consider:
(1) the differences in the periods covered by the alleged con-
spiracies; (2) the places where the conspiracies were alleged
to occur; (3) the persons charged as coconspirators; (4) the
overt acts alleged to have been committed; and (5) the statutes
alleged to have been violated.


[4] The government introduced evidence that the Oregon
manufacturing operation charged in Count One started an ear-
lier date than the Canadian operation charged in Count Two.
[5] There was little overlap in the places where the objects of
the conspiracies were put into effect. [6] Count One named
members of a conspiracy to manufacture methamphetamine in
Oregon. Count Two named members of a conspiracy to dis-
tribute methamphetamine manufactured in Canada. The
involvement of Montgomery and McClain in both did not
compel a finding that a single conspiracy existed. There was
no significant overlap of participants. [7] Counts One and
Two alleged different overt acts. [8] Different goals of the
conspiracies charged in Count One and Count Two suggested
the existence of two distinct conspiracies. [9] The evidence
supported the conclusion that Counts One and Two charged
two distinct conspiracies.


[10] Suggestive pretrial identification procedures may be so
impermissibly suggestive as to taint a subsequent in-court
identification and deny a defendant due process of law. [11]
An identification procedure is suggestive when it emphasizes
the focus on a single individual, thereby increasing the likeli-
hood of misidentification. Showing Blondin the photographs
and permitting him to view Montgomery in the courtroom
were suggestive procedures that emphasized the focus of the
investigation on Montgomery.


[12] A suggestive pretrial identification procedure does not
violate due process when its use is "imperative. " [13] The


                               4719


record was devoid of evidence that the government's use of
the suggestive identification procedure was imperative. The
procedure was unnecessarily suggestive.


[14] If the identification is sufficiently reliable, identifica-
tion testimony may be allowed into evidence even if it was
made pursuant to an unnecessarily suggestive procedure. [15]
Factors considered in deciding whether in-court identification
testimony is reliable are: the witness's opportunity to view the
defendant at the time of the incident; the witness's degree of
attention; the accuracy of the witness's prior description of
the defendant; the level of certainty demonstrated by the wit-
ness at the time of the identification procedure; and the length
of time between the incident and the identification.


[16] Blondin had ample opportunity to view Montgomery
at the time Montgomery purchased the key methamphetamine
ingredient. Because the large order raised Blondin's suspi-
cions, he made a point of gaining a detailed description of the
purchaser. This description was recorded by Blondin and
faxed to the RCMP. Blondin was able to make a positive
identification of Montgomery a year later. [17] Blondin's in-
court identification of Montgomery was sufficiently reliable.


[18] When cross-examination of the identifying witness can
substitute for a lack of counsel at the pretrial identification
procedure, the pretrial confrontation ceases to be critical.
When the confrontation is not critical, there is no Sixth
Amendment right to counsel. [19] The confrontation was not
critical. Cross-examination was effective in exposing the sug-
gestive identification procedure to the jury. The government's
failure to notify Montgomery's counsel of the confrontation
did not rise to the level of a Sixth Amendment violation.


[20] A district court must decide whether the case pre-
sented at trial supports an instruction based on a particular
theory of defense. Montgomery did not advance the theory at
trial that the evidence supported an inference that a conspir-


                               4720


acy existed between Blair and Montgomery alone. Montgom-
ery did not rely on a Sears-type defense theory. The district
court's failure to offer a Sears instruction was not plain error.


[21] A jury following the instructions given in this case
could not have convicted a defendant of additional conspira-
cies on a theory of vicarious liability, but only of substantive
offenses committed in furtherance of the conspiracy in ques-
tion. The district court did not err in failing to include the con-
cept of reasonable foreseeability.


[22] The Supreme Court has held that to establish a viola-
tion of 21 U.S.C. S 846, the government need not prove the
commission of any overt act in furtherance of the conspiracy.
This decision rested on the language of S 846. [23] The lan-
guage used in SS 963 and 846 is identical, and the two statutes
were enacted at the same time as part of the same public law.
Proof of an overt act is not a required element of aS 963 con-
spiracy charge.


[24] Once the government proves the existence of a con-
spiracy, evidence of only a slight connection is necessary to
convict a defendant of knowing participation in it. [25] The
government need not show direct contact or explicit agree-
ment between the defendants. It is sufficient to show that each
defendant knew or had reason to know of the scope of the
conspiracy, and had reason to believe that his own benefits
were dependent on the success of the entire venture. [26]
Objective knowledge is sufficient to connect a defendant to a
conspiracy already proven to exist. The language in Instruc-
tion 17 addressed the defendants' connection to the conspir-
acy, not whether a conspiracy existed. Inclusion of the
objective knowledge standard was not error.


[27] The jury requested the district court to provide tran-
scripts of Blair's and Farley's testimony. The court assented,
noting that the transcripts were heavily relied on by both the
defense and prosecution at trial. [28] The court gave a supple-


                               4721


mental jury instruction that the trial testimony was the evi-
dence, not the transcripts, and provided counsel with the
opportunity to note inaccuracies in the transcripts. The deci-
sion to allow the transcripts into the jury room was not an
abuse of discretion.


[29] The district court's statement to the jury that the evi-
dence against Buxton was insufficient would have resulted in
prejudice if unaccompanied by a curative instruction. [30]
The court gave the jury an admonition that the disposition
should not influence the verdict with reference to the remain-
ing counts against Montgomery. The instruction regarding the
dismissal of Count Three against Buxton was not misleading
or prejudicial.


[31] Evidence of other crimes is admissible to prove
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. [32] When offered
to show knowledge, prior acts need not be similar to the
charged act, as long as the prior act was one that would tend
to make the existence of the defendant's knowledge more
probable than it would be without the evidence. A jury could
have inferred from Buxton's prior conviction that he was suf-
ficiently familiar with the production of methamphetamine to
possess knowledge regarding its distribution. [33] The district
court gave a limiting instruction, and did not abuse its discre-
tion in admitting evidence of Buxton's prior conviction.


[34] While Farley's testimony showed Buxton's involve-
ment in the conspiracy, there was also a significant amount of
circumstantial evidence implicating him. [35] The jury was
entitled to infer that Buxton was a co-conspirator, not merely
an occasional buyer. [36] The district court's instruction on a
buyer-seller relationship adequately explained the law to the
jury.


_________________________________________________________________

                               4722


COUNSEL

Sheryl Gordon McCloud, Seattle, Washington, for defendant-
appellant Bernard Vincent Montgomery.


Brenda Grantland, Mill Valley, for defendant-appellant Lloyd
Ray Buxton.


Gregory M. Shogren, Assistant United States Attorney, Yak-
ima, Washington, for the plaintiff-appellee.


_________________________________________________________________

OPINION

ALARCON, Circuit Judge:

Bernard Vincent Montgomery ("Montgomery") was found
guilty of conspiracy to manufacture methamphetamine, con-
spiracy to distribute methamphetamine, conspiracy to import
methamphetamine, distribution of methamphetamine, and
possession of ephedrine with intent to manufacture metham-
phetamine. Lloyd Ray Buxton ("Buxton") was found guilty of
conspiracy to distribute methamphetamine.


Montgomery seeks reversal of the judgment of conviction
on the following grounds:


One. The separate counts of conspiracy to manufacture
methamphetamine and conspiracy to distribute methamphet-
amine, both charged under 21 U.S.C. S 846, violated the Dou-
ble Jeopardy Clause of the United States Constitution.


Two. The in-court identification of Montgomery by a
prosecution witness was impermissibly tainted by improper
identification procedures.


Three. The district court failed to instruct the jury that a
defendant may not be convicted for conspiring solely with a
government agent.


                               4723


Four. The district court failed to instruct the jury that
"reasonable foreseeability" is a necessary element of
Pinkerton liability.


Five. The district court's instructions to the jury misstated
the elements of a conspiracy under 21 U.S.C. S 963 by failing
to include the requirement that the Government prove an
overt act in furtherance of the conspiracy.


Six. The district court's instructions to the jury misstated
the knowledge requirement of the crime of conspiracy.


Seven. The district court erroneously provided the jury
with transcripts of the trial testimony of material witnesses.


Eight. The district court committed prejudicial error by
informing the jury that certain charges against Buxton were
dismissed for lack of evidence.


Buxton joins Montgomery in his fourth, sixth, and seventh
contentions. He also seeks reversal of the judgment of convic-
tion on the following grounds:


One. The district court erred in admitting evidence of
defendant's prior conviction for conspiracy to manufacture
methamphetamine.


Two. There was insufficient evidence to support the con-
viction for conspiracy to distribute methamphetamine.


Three. The district court's general instruction on conspir-
acy inadequately explained to the jury that a mere buyer-seller
relationship is insufficient to support a conviction for conspir-
acy to distribute.


For the reasons stated below, we affirm the judgments of
conviction on all counts.


                               4724


I

Montgomery and Buxton were indicted following an inves-
tigation by the Yakima City/County Narcotics Unit
("CCNU"), the Drug Enforcement Agency ("DEA"), and the
Royal Canadian Mounted Police ("RCMP"), which began
with the arrest of Joanne Blair ("Blair") on June 26, 1996.
Blair was arrested by detectives of the CCNU for the sale of
five ounces of methamphetamine to an undercover CCNU
agent. She was offered immunity in exchange for her coopera-
tion in the identification and apprehension of her supplier.
Blair identified Montgomery as her methamphetamine source,
and also implicated her boyfriend, Edwin Dale McClain
("McClain"), as a participant in an international methamphet-
amine manufacturing and distribution network.


Blair's information led the investigators to Montgomery's
home in Chilcoot, California. A CCNU detective, acting in
cooperation with the Susanville, California police department,
found sixteen pounds of methamphetamine and $47,000 in
cash in the trunk of a car registered to Montgomery. Mont-
gomery's companion, Helen Farley ("Farley"), was present at
the Chilcoot residence during the search. She volunteered to
cooperate with the investigation. Her account corroborated
Blair's statements regarding: the manufacturing operations in
Oregon and Canada; the details of the cross-border transfer of
methamphetamine, ephedrine, and cash; and the distribution
channels in Eastern Washington and in California. Farley
identified Buxton as Montgomery's distributor in Sacramento.


Blair's and Farley's statements also led investigators to a
methamphetamine factory in Burns, Oregon and to two sus-
pected manufacturing sites in Alberta, Canada. Evidence of
recent methamphetamine production was found at all three
locations. Further investigation turned up witnesses and evi-
dence (motel receipts, telephone records, telephone messages)
that corroborated Blair's and Farley's descriptions of the
methamphetamine network.


                               4725


Blair assisted the DEA and CCNU in implementing a
reverse sting operation which resulted in the arrests of
McClain and Montgomery on July 2, 1996. Buxton was
apprehended in Sacramento on October 8, 1996, after a war-
rant was issued for his arrest. He was joined as a codefendant
with Montgomery and McClain in the second superseding
indictment filed September 17, 1996. Count Seven of the
indictment (conspiracy to manufacture methamphetamine in a
place outside of the United States with intent to import into
the United States) was dismissed before trial as multiplicitous
in conjunction with Count Three (conspiracy to import
methamphetamine). At the close of trial, the district court dis-
missed Count Three against Buxton for lack of evidence. The
defendants were convicted on all remaining counts.


II

[1] Montgomery contends that the separate counts of con-
spiracy to manufacture methamphetamine and conspiracy to
distribute methamphetamine, both charged under 21 U.S.C.
S 846, violate the Double Jeopardy Clause. The Double Jeop-
ardy Clause "prohibits subdivision of a single criminal con-
spiracy into multiple violations of one conspiracy statute."
United States v. Bendis, 681 F.2d 561, 563 (9th Cir. 1982)
(citing Braverman v. United States, 317 U.S. 49, 52-53
(1942)). As the Court in Braverman explained: "Whether the
object of a single agreement is to commit one or many crimes,
it is in either case that agreement which constitutes the con-
spiracy which the statute punishes. The one agreement cannot
be taken to be several agreements and hence several conspira-
cies. . . ." Braverman, 317 U.S. at 53.


Montgomery relies on our decision in United States v.
Alerta, 96 F.3d 1230 (9th Cir. 1996), to support his contention
that the Double Jeopardy Clause is violated whenever the
Government charges two or more counts of conspiracy as
being under a single statute. Contrary to Montgomery's asser-
tions, Alerta did not establish a rule barring the government


                               4726


from charging multiple conspiracy violations under a single
conspiracy statute.


In Alerta, the defendant was charged with conspiracy to
distribute methamphetamine in violation of 21 U.S.C.S 846
and conspiracy to use firearms during and in relation to drug
trafficking in violation of 18 U.S.C. S 371. See Alerta, 96
F.3d at 1232. The defendant contended that because there was
only one underlying conspiracy, Braverman prohibited the
Government from charging violations of both sections 846
and 371. See id. at 1237. In Alerta, we found that "as a matter
of charges and of evidence" only a single conspiracy existed.
Id. at 1237. We then applied the test developed by the
Supreme Court in Blockburger v. United States, 284 U.S. 299
(1932), to determine whether Congress, where it had created
two separate offenses applying to the same multi-object con-
spiracy, intended separate punishments. Alerta, 96 F.3d at
1238-39. The Blockburger test requires us to examine the stat-
utory elements of the underlying offenses. Under
Blockburger, "Congress is deemed to have intended multiple
punishments if each offense require[s] proof of a fact that the

other does not." Alerta, 96 F.3d at 1238. We held in Alerta
that section 846 and section 371 were "not distinct under the
Blockburger test," and concluded that the charges against
Alerta were multiplicitous. Id. at 1239.


Montgomery suggests that two conspiracy charges under
the same statute must be multiplicitous because a statute can-
not be distinct from itself. Montgomery's reliance on Alerta
for this argument is misguided. Montgomery fails to appreci-
ate the necessity of first determining whether the defendant is
being charged with single or multiple conspiracies. 1
_________________________________________________________________
1 The Alerta decision itself recognizes the importance of this initial
inquiry. We noted in Alerta that in Albernaz v. United States, 450 U.S.
333, 339-40 (1981), the "[Supreme] Court distinguished Braverman
because, in Braverman, both purported offenses were violations of the
same statute." Alerta, 96 F.3d at 1238.


                               4727


[2] We have declined to apply the Blockburger double
jeopardy analysis in cases where multiple conspiracies were
charged, either consecutively or simultaneously, under the
same conspiracy statute. See, e.g., Bendis, 681 F.2d at 564. In
Bendis, we acknowledged that the "primary constitutional test
used to determine whether two counts in the same or subse-
quent indictments charge the same offense is the`same evi-
dence' or `Blockburger' test." Id. We noted, however, that
"[p]roviding the double jeopardy protection recognized in
`Braverman' presents a peculiar problem and requires appli-
cation of a different test." Id. (emphasis added).


[3] Our concern in Bendis was that the Blockburger test,
which focuses solely on the required elements of proof of the
charged offenses, does not provide sufficient protection
against "artful crafting of conspiracy charges which could
permit the government to subdivide one criminal conspiracy
into multiple violations of a single statute" in violation of the
principle established in Braverman. Bendis, 681 F.2d at 565.
In response to this concern, we adopted the "factor analysis"
test in Arnold v. United States, 336 F.2d 347, 350 (9th Cir.
1964). See Bendis, 681 F.2d at 565. We summarized the
Arnold factor analysis as follows:


       [T]o determine whether two conspiracy counts
      charge the same offense and so place the defendant
      in double jeopardy, we consider five factors: (1) the
      differences in the periods of time covered by the
      alleged conspiracies; (2) the places where the con-
      spiracies were alleged to occur; (3) the persons
      charged as coconspirators; (4) the overt acts alleged
      to have been committed; and (5) the statutes alleged
      to have been violated.


United States v. Stoddard, 111 F.3d 1450, 1454 (9th Cir.
1997) (citation and internal quotation marks omitted).


The defendant has the burden of showing that the two con-
spiracies charged are actually based on a single agreement.


                               4728


See Bendis, 681 F.2d at 564. See also United States v. Guz-
man, 852 F.2d 1117, 1119-20 (9th Cir. 1988) (holding that
defendant must show "that the two conspiracies are indistin-
guishable in law and in fact").


Montgomery contends that Alerta mandates the application
of the Blockburger test, and that Blockburger requires us to
compare "the elements of the two charged conspiracies, not
the evidence presented." (Montgomery's Reply Br. at 3.) In
focusing on the question of which test applies, Montgomery
fails to offer any argument in support of the pivotal issue --
whether the indictment and the evidence show the existence
of multiple, distinct conspiracies or a single, multi-object con-
spiracy. Ultimately, Montgomery fails to demonstrate that the
two conspiracies charged in the indictment are indistinguish-
able.


In United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981),
we explained that "sufficiency of the evidence " analysis is
applicable to the determination of the question whether the
evidence shows the existence of a single, multi-object con-
spiracy or multiple, distinct conspiracies. Id. at 1335. Accord-
ingly, we must examine the evidence in the light most
favorable to the prosecution to determine if any rational trier
of fact could have found that more than one conspiracy
existed. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Kenny, 645 F.2d at 1335. In light of the above standard, we
apply the factors articulated in Stoddard, 111 F.3d at 1454.
"[W]e do not focus on one single factor, but consider all the
factors together." Id. at 1456-57. See also Bendis, 681 F.2d at
568 ("No one component of the Arnold analysis has control-
ling significance."). The record supports the conclusion that
Montgomery was involved in two distinct conspiracies.


[4] Time Frame: The time periods of the two conspiracies
substantially overlap. The Government introduced evidence,
however, that the Oregon manufacturing operation, charged in
Count One, started at an earlier date than the Canadian


                               4729


methamphetamine distribution operation, charged in Count
Two.


[5] Geographic Location: The record demonstrates that
there was little overlap in the places where the objects of the
conspiracies were put into effect. The Government presented
evidence showing that "low quality" methamphetamine man-
ufactured in Oregon was distributed exclusively in Eastern
Washington, and that "high quality" methamphetamine manu-
factured in Canada was distributed primarily in California.


[6] Participants: Count One named Montgomery,
McClain, Herbert Crawford, Robert Taylor, and others,
known and unknown, as members of a conspiracy to manu-
facture methamphetamine in Oregon. Count Two named
Montgomery, McClain, Buxton and others, known and
unknown, as members of a conspiracy to distribute metham-
phetamine manufactured in Canada. The involvement of
Montgomery and McClain in both conspiracies does not com-
pel a finding that a single conspiracy existed. See Guzman,
852 F.2d at 1120 (focusing on the different activities of the
members in each conspiracy where two conspiracies had
overlapping members). We must determine whether the roles
performed by the overlapping members were different in each
conspiracy. See id. The Government introduced evidence
through Blair and Farley that Montgomery was a metham-
phetamine "cook" in the Canadian distribution operation, and
that McClain was the "cook" in the Oregon manufacturing
operation. Montgomery provided ephedrine to McClain for
the Oregon manufacturing operation, and McClain assisted

Montgomery in transporting methamphetamine into the
United States from Canada for distribution. Because Mont-
gomery and McClain played different roles in each of the two
conspiracies, we conclude that there was no significant over-
lap of participants.


[7] Overt Acts: The conspiracies charged in Counts One
and Two allege different overt acts. Count One alleges


                               4730


methamphetamine manufacturing in Oregon, and Count Two
alleges distribution of methamphetamine produced in Canada.


[8] Statutes Violated: When the two conspiracies charged
violate the same statute, we consider "whether the goals of the
two conspiracies were similar." Stoddard, 111 F.3d at 1456.
Here, the goal of the conspiracy charged in Count One was
the manufacture of low quality methamphetamine. The goal
of the conspiracy charged in Count Two was the distribution
of high quality methamphetamine. Different goals suggest the
existence of two distinct conspiracies. See id. (finding that the
existence of two conspiracies is indicated where one conspira-
cy's goal was the purchase of marijuana and the other con-
spiracy's goal was the growth, sale and distribution of
marijuana). See also Guzman, 852 F.2d at 1121 (finding that
the goal of one conspiracy to distribute cocaine differed from
the goal of the other conspiracy to manufacture cocaine).


[9] Having applied the "factor analysis" test articulated in
Stoddard, we determine that the evidence in the record, exam-
ined in the light most favorable to the Government, supports
the conclusion that Counts One and Two charged two distinct
conspiracies. We therefore conclude that the judgment of con-
viction against Montgomery for the two conspiracies charged
under 21 U.S.C. S 846 did not violate the Double Jeopardy
Clause.


III

[10] Montgomery argues that he was deprived of his right
to due process because the court admitted the in-court identi-
fication testimony of Lance Blondin ("Blondin"). Blondin, an
employee of a Canadian chemical supply company, identified
Montgomery at trial as the purchaser of a large quantity of red
phosphorous -- a key ingredient in the manufacture of
methamphetamine. Montgomery contends that this in-court
identification was tainted by impermissibly suggestive pretrial
identification procedures employed by the Government.


                               4731


"Suggestive pretrial identification procedures may be so
impermissibly suggestive as to taint subsequent in-court iden-
tifications and thereby deny a defendant due process of law."
United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985).


We review de novo the constitutionality of pretrial identifi-
cation procedures. United States v. Atcheson, 94 F.3d 1237,
1246 (9th Cir. 1996), cert. denied, 117 S.Ct. 1096 (1997).
"[C]onvictions based on eyewitness identification at trial fol-
lowing a pretrial identification . . . will be set aside . . . only
if the [pretrial] identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification." Simmons v. U.S., 390 U.S. 377,
384 (1968). "It is the likelihood of misidentification which
violates a defendant's right to due process . . . . " Neil v. Big-
gers, 409 U.S. 188, 198 (1972). "Suggestive confrontations
are disapproved because they increase the likelihood of misi-
dentification, and unnecessarily suggestive ones are con-
demned for the further reason that the increased chance of
misidentification is gratuitous." Id.


A. Were the pretrial identification procedures unneces-
      sarily suggestive?


In August 1996, officers of the DEA and RCMP showed
photos of Montgomery, Marks, and McClain to Blondin. He
identified Montgomery as the person who, using the name
"Jim Luna," had purchased a large quantity of red phospho-
rous on a rush basis. Several weeks prior to trial, Blondin
requested that the DEA fax him a photograph of Montgomery,
to "have it right in [his] mind that [he ] could identify
Montgomery." He later called an agent at the DEA to inform
her that the man in the photograph was Montgomery. Blondin
pinned this photograph to the wall of his office and looked at
it several times prior to testifying.


The day before Blondin was scheduled to testify, he entered
the courtroom with a DEA agent and looked at Montgomery,


                               4732


who was seated at the defense table. Blondin testified that he
asked the DEA agent to bring him into the courtroom so that
he could "have it straight in my mind that Montgomery was
the fellow that had purchased the chemicals from us . . . ."
Montgomery asserts that the combination of identification
procedures -- the initial photo-identification, the subsequent
single photograph identification, and the one-on-one confron-
tation -- was "unnecessarily suggestive and conducive to
irreparable mistaken identification."


[11] An identification procedure is suggestive when it
"emphasize[s] the focus upon a single individual" thereby
increasing the likelihood of misidentification. Bagley, 772
F.2d at 493 ("The repeated showing of the picture of an indi-
vidual, for example, reinforces the image of the photograph in
the mind of the viewer."); Stovall v. Denno, 388 U.S. 293,
302 (1967) ("The practice of showing suspects singly to per-
sons for the purpose of identification, and not as part of a
lineup, has been widely condemned."). We agree with Mont-
gomery that showing Blondin the photographs of Marks,
McClain, and Montgomery, granting Blondin's request for a
photograph of Montgomery, and permitting Blondin to view
Montgomery in the courtroom the day before the witness was
scheduled to testify, were suggestive procedures that empha-
sized the focus of the investigation on Montgomery as the
person who purchased the red phosphorous.


[12] The Court in Stovall explained that a suggestive pre-
trial identification procedure does not violate due process
when use of the procedure is "imperative." See Stovall, 388
U.S. at 301-02 (holding that a one person show-up in a hospi-
tal room of critically wounded victim did not violate due pro-
cess where the record revealed that the suggestive
confrontation was "imperative"). The issue before the Court
in Stovall was whether the pretrial identification procedure
was "so unnecessarily suggestive and conducive to irreparable
mistaken identification that [the defendant] was denied due
process of law." Id. at 301. We read Stovall to mean that an


                               4733


identification procedure is unnecessarily suggestive when its
use is not imperative.


[13] The record in the case before us is devoid of any indi-
cation that the Government's use of the suggestive identifica-
tion procedures was imperative. The initial photo
identification by Blondin took place one year after the pur-
chase of red phosphorous by Montgomery. The Government
had ample time to prepare a non-suggestive photographic
array. The faxed photo identification and the in-court one-on-
one confrontation were not compelled by any exigent circum-
stances. Accordingly, we conclude that the identification pro-
cedures employed by the Government were unnecessarily
suggestive.


B. Was the in-court identification testimony sufficiently
      reliable under the totality of the circumstances?


[14] "Should we find a pretrial procedure impermissibly
suggestive, automatic exclusion of identification testimony is
not required." Bagley, 772 F.2d at 492 (citing Manson v.
Brathwaite, 432 U.S. 98, 113-14 (1977); and Biggers, 409
U.S. at 198-99). "If under the totality of the circumstances the
identification is sufficiently reliable, identification testimony
may properly be allowed into evidence even if the identifica-
tion was made pursuant to an unnecessarily suggestive
procedure." Id.


[15] The factors we consider in deciding whether in-court
identification testimony is sufficiently reliable are: 1) the wit-
ness's opportunity to view the defendant at the time of the
incident; 2) the witness's degree of attention; 3) the accuracy
of the witness's prior description of the defendant; 4) the level
of certainty demonstrated by the witness at the time of the
identification procedure; and 5) the length of time between
the incident and the identification. See Biggers, 409 U.S. at
199-200; United States v. Jones, 84 F.3d 1206, 1209-10 (9th
Cir.), cert. denied, 117 S. Ct. 405 (1996).


                               4734


[16] Blondin had ample opportunity to view Montgomery
at the time Montgomery purchased the red phosphorous. Fur-
thermore, because the large order for a key methamphetamine
ingredient raised Blondin's suspicions, he made a point of
gaining a detailed description of the purchaser. This descrip-
tion was later recorded by Blondin and faxed to the RCMP.
The district court found that this description was "accurate."
One year later, when presented with photos of Marks,
McClain, and Montgomery, Blondin was able to make a posi-
tive identification of Montgomery as the purchaser.


[17] We conclude that Blondin's in-court identification of
Montgomery was sufficiently reliable as a matter of law,
based on the factors set out in Biggers. See 409 U.S. at 199-
200. Thus, the admission of Blondin's in-court identification
testimony was not a violation of due process. The unnecessar-
ily suggestive pretrial identification procedures did not create
a "substantial likelihood of irreparable misidentification."
Simmons, 390 U.S. at 384.


IV

[18] Montgomery also contends that permitting Blondin to
view him in the courtroom the day before Blondin was sched-
uled to testify violated Montgomery's Sixth Amendment right
to counsel because Montgomery's counsel "did not find out
about the show-up until he elicited details about it from the
witness on cross-examination." (Montgomery's Opening Br.
at 34.) In United States v. Ash, 413 U.S. 300 (1973), the
Supreme Court held that where cross-examination of the iden-
tifying witness at trial can substitute for lack of counsel at the
pretrial identification procedure, the pretrial confrontation
ceases to be "critical." Id. at 315-16. Where the confrontation
is not "critical," there is no Sixth Amendment right to coun-
sel. Id. at 343.


[19] Here, the confrontation was not critical. The record
shows that cross-examination was effective in exposing the


                               4735


suggestive identification procedure to the jury. Evidence that
Blondin had seen Montgomery in the courtroom the previous
day was elicited through questioning of Blondin by defense
counsel. We are also mindful of the fact that Blondin would
have seen Montgomery sitting at the defense table in the
courtroom the following day, when Blondin took the stand to
testify. Because Blondin's courtroom confrontation with
Montgomery was not critical, the Government's failure to
notify Montgomery's counsel of the confrontation did not rise
to the level of a Sixth Amendment violation.


V

Montgomery argues that the district court's failure to give
a Sears instruction to the jury is grounds for reversal of his
conviction on all counts. See Sears v. United States, 343 F.2d
139, 142 (5th Cir. 1965). In Sears, the Fifth Circuit held that
"there can be no indictable conspiracy with a government
informer who secretly intends to frustrate the conspiracy." Id.


At the close of trial, McClain objected to the court's refusal
to accept his proposed Instruction 1. That instruction
explained that an "individual must conspire with at least one
bona fide co-conspirator to meet the formal requirements of
a conspiracy. There can be no conspiracy with the govern-
ment informer who secretly intends to frustrate the
conspiracy." McClain's request was prompted by the Govern-
ment's use of telephone records to link McClain and Mont-
gomery in the conspiracy counts. The court noted that the
post-June 26 telephone conversations related only to Count
Six -- possession of ephedrine, and agreed to instruct the jury
to that effect. Montgomery contends that Blair was a Govern-
ment agent because during part of the investigation she was
cooperating with the authorities. Montgomery argues (for the
first time before this court) that the substance of the post-June
26 telephone conversations between Blair and himself could,
on its own, have provided the jury with enough evidence to
convict him of the conspiracies charged in Counts One, Two,


                               4736


and Three. Based on this argument, Montgomery contends
that he was entitled to a Sears instruction. We disagree.


Rule 30 of the Federal Rules of Criminal Procedure states
in pertinent part that:


       [A]ny party may file written requests that the
      court instruct the jury on the law as set forth in the
      requests . . . No party may assign as error any por-
      tion of the charge or omission therefrom unless that
      party objects thereto before the jury retires to con-
      sider its verdict, stating distinctly the matter to which
      that party objects and the grounds of the objection.


Fed. R. Crim. P. 30.

Montgomery did not request a Sears instruction, nor did he
join in McClain's request for a similar instruction. Conse-
quently, Montgomery "failed to preserve for appeal his
challenge" to the district court's omission of an instruction
concerning this theory of his case. See United States v.
Klinger, 128 F.3d 705, 711 (9th Cir. 1997) (where defendant
failed to comply with Rule 30, his challenge to the district
court's instructions was not preserved for appeal).


Because Montgomery failed to object to the omission of a
Sears instruction, we review this contention for plain error.
See id. at 711-12. Where a defendant does not offer a particu-
lar instruction, and does not rely on the theory of defense
embodied in that instruction at trial, the district court's failure
to offer an instruction on that theory sua sponte is not plain
error. See United States v. Span, 970 F.2d 573, 578 (9th Cir.
1992).


[20] We explained in Span that a "district court must still
decide whether the case presented at trial supports giving an
instruction based on a particular theory of defense. " Id.
Montgomery did not advance the theory during trial that the


                               4737


evidence supported an inference that a conspiracy existed
between Blair and Montgomery alone. Montgomery's theory
of defense at trial was that he was not involved in any con-
spiracy to manufacture, distribute, or import methamphet-
amine. On appeal, Montgomery asks this court to consider the
possibility that the jury could have disbelieved every shred of
evidence presented at trial except for the contents of the post-
June 26 telephone conversations, and concluded that Mont-
gomery had conspired to manufacture, distribute, and import
methamphetamine solely with Blair between June 26 and July
2, 1996. The telephone conversations do not support this the-
ory. Montgomery concedes this point in his brief where he
argues: "But what [Montgomery] did between June 26 and
July 2 with Blair did not constitute the crime of conspiracy."
We conclude that Montgomery did not rely on a Sears-type
defense theory at trial. Accordingly, the district court's failure
to offer a Sears instruction sua sponte was not plain error.


VI

Montgomery and Buxton assert for the first time on appeal
that the district court's failure to include the element of
"reasonable foreseeability" in the Pinkerton instruction con-
stitutes reversible error. See Pinkerton v. United States, 328
U.S. 640, 647 (1946) (holding defendant responsible for sub-
stantive offense committed by co-conspirator in furtherance
of the conspiracy). The appellants contend that "reasonable
foreseeability" language was required because the instruction
as given by the district court to the jury "allowed . . . convic-
tion based on vicarious liability not just for substantive
offenses, but for additional conspiracies, and hence the addi-
tional substantive offenses connected with those conspir-
acies." (Montgomery's Opening Br. at 45.) Because the
defendants failed to raise this issue at trial, we must review
the district court's Pinkerton instruction for plain error. See
United States v. Fagan, 996 F.2d 1009, 1016 (9th Cir. 1993)
(where defendant fails to object to jury instruction at trial, we

review the instruction for plain error).

                               4738


[21] In United States v. Moore, 109 F.3d 1456 (9th Cir.),
cert. denied, 118 S. Ct. 108 (1997), we explained that alleg-
edly confusing jury instructions are reviewed "in the context
of the entire trial to determine if they were misleading or
inadequate to guide the jury's deliberations." Id. at 1465 (quo-
tation marks and citation omitted). Here, the district court
instructed the jury on co-conspirator vicarious liability as fol-
lows:


       A conspiracy is a kind of criminal partnership--
      an agreement between two or more persons to com-
      mit one or more crimes. The crime of conspiracy is
      the agreement to do something unlawful. . . .


      . . . .

       Each member of a conspiracy is responsible for
      the actions of other conspirators performed during
      the course and in furtherance of the conspiracy.
      Before you may consider the statements or acts of a
      co-conspirator, you must first determine whether the
      acts or statements were made during the existence of
      and in furtherance of the unlawful scheme. . . .


       Once you have decided that a defendant was a
      member of the conspiracy, that defendant is respon-
      sible for what the other conspirators said or did to
      carry out the conspiracy, even if the defendant did
      not know what they said or did."


(emphasis added)

The district court's Pinkerton instruction, reviewed in the
context of the entire trial, was neither misleading nor an inad-
equate guide for the jury. "Juries are presumed to follow the
court's instructions." Aguilar v. Alexander, 125 F.3d 815, 820
(9th Cir. 1997). A jury following the instruction as given by
the district court in this case could not convict a defendant of


                               4739


additional conspiracies on a theory of vicarious liability, but
only of substantive offenses committed in furtherance of the
particular conspiracy in question. Accordingly, the district
court did not err in failing to include sua sponte the concept
of reasonable foreseeability.


VII

Montgomery argues that the district court erroneously
instructed the jury on the elements of a conspiracy charged
under 21 U.S.C. S 963. Specifically, Montgomery asserts that
one of the required elements of a conspiracy charge under
section 963 is the proof of an overt act in furtherance of the
conspiracy.2 We review de novo the question whether a jury
instruction misstates the elements of a crime. United States v.
Johnson, 956 F.2d 197, 199 (9th Cir. 1992).


[22] In United States v. Shabani, 513 U.S. 10 (1994), the
Supreme Court held that "[i]n order to establish a violation of
21 U.S.C. S 846, the Government need not prove the commis-
sion of any overt acts in furtherance of the conspiracy." Id. at
15. This decision rested on the language of section 846, which
does not expressly require proof of the commission of an
overt act.3 See id. at 13. The Court noted that it has not
"inferred [an overt act requirement] from congressional
silence in other conspiracy statutes." Id.


[23] The language used by Congress in section 963 and
section 846 is identical. Furthermore, the two statutes were
_________________________________________________________________
2 21 U.S.C. S 963 states:"Any person who attempts or conspires to com-
mit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was
the object of the attempt or conspiracy."
3 21 U.S.C. S 846 states:"Any person who attempts or conspires to com-
mit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was
the object of the attempt or conspiracy."


                               4740


enacted at the same time as part of the same public law.4 See
Pub. L. 91-513, Title II, Section 406, Oct. 27, 1970, 84 Stat.
1265; Pub. L. 100-690, Title VI, Section 6470(a), Nov. 18,
1988, 102 Stat. 4377. Application of the reasoning of the
Court in Shabani leads logically to the conclusion that "proof
of an overt act" is not a required element of a conspiracy
charge pursuant to section 963.


Montgomery contends that despite the reasoning of the
Court in Shabani, the law of this circuit as expressed in
United States v. Kearney, 560 F.2d 1358 (9th Cir. 1977),
requires that the Government prove the existence of an overt
act in furtherance of a conspiracy charged under 21 U.S.C.
S 963. In Kearney, we held that "a conspiracy conviction
requires proof of an agreement and but one overt act. . . ."
Id. at 1366. Kearney was decided long before the rule in
Shabani was announced by the Court. We explained in Le
Vick v. Skaggs Cos., 701 F.2d 777 (9th Cir. 1983), that "when
existing Ninth Circuit precedent has been undermined by sub-
sequent Supreme Court decisions, this court may reexamine
that precedent without the convening of an en banc panel." Id.
at 778. Our prior case law defining the elements of a conspir-
acy charged under section 963 was "undermined " by the
Court's decision in Shabani. Accordingly, we hold that sec-
tion 963 does not require proof of an overt act in furtherance
of the conspiracy. The district court's jury instruction did not

misstate the elements of a conspiracy charged under 21
U.S.C. S 963.
_________________________________________________________________
4 In United States v. Iriarte-Ortega, 113 F.3d 1022 (9th Cir. 1997), cert.
denied, 118 S. Ct. 1209 (1998), we noted (without deciding) that "[s]ince
21 U.S.C. S 963 and S 846 have identical language and are part of the
same law -- the Comprehensive Drug Abuse Prevention and Control Act
of 1970 -- it is likely that section 963 also requires no overt act." Id. at
1025 n.1.


                               4741


VIII

Montgomery and Buxton contend for the first time on
appeal that Instruction 17 erroneously contained language
which allowed the jury to convict them of conspiracy based
on an objective standard of knowledge. Because the defen-
dants did not object to the instruction at trial, we review for
plain error. See Whitmore, 24 F.3d at 34.


[24] The language used in Instruction 17 contains an accu-
rate restatement of this circuit's controlling precedent. See
United States v. Arbelaez, 719 F.2d 1453, 1458 (9th Cir.
1983). In Arbelaez, we acknowledged that once the govern-
ment proves the existence of a conspiracy, "evidence of only
a slight connection is necessary to convict a defendant of
knowing participation in it." Id. (citation and internal quota-
tion marks omitted). Instruction 17 reads in pertinent part:


       You must first decide whether the conspiracies
      charged in the indictment existed, and, if it [sic] did,
      who at least some of its members were. For a con-
      spiracy to have existed, it is not necessary that the
      conspirators made a formal agreement or that they
      agreed on every detail of the conspiracy. It is not
      enough, however, that they simply met, discussed
      matters of common interest, acted in similar ways, or
      perhaps helped one another. You must find that there
      was a joint plan to distribute or manufacture or
      import methamphetamine.


       . . . .

       One becomes a member of a conspiracy by will-
      fully participating in the unlawful plan with the
      intent to advance or further some object or purpose
      of the conspiracy, even though the person does not
      have full knowledge of all the details of the conspir-
      acy, or the names, identities, or locations of all of the


                               4742


      other members. One who willfully joins an existing
      conspiracy is as responsible for it as the originators.


       . . . .

       Even if a defendant did not directly conspire with
      the other conspirators in the overall scheme, the
      defendant has, in effect, agreed to participate in the
      conspiracy if it is proved beyond a reasonable doubt
      that:


       1) the defendant directly conspired with one or
      more conspirators to carry out at least one of the
      objects of the conspiracy;


       2) the defendant knew or had reason to know
      that other conspirators were involved with those with
      whom the defendant directly conspired, and


       3) the defendant had reason to know that what-
      ever benefits the defendant might get from the con-
      spiracy were probably dependent upon the success of
      the entire venture.


[25] The objective standard of knowledge referred to in
Instruction 17 relates to connecting a defendant to a conspir-
acy that has already been proven to exist. In fact, Instruction
17 includes a specific requirement that the government prove
beyond a reasonable doubt that the defendant "directly con-
spired with one or more conspirators to carry out at least one
of the objects of the conspiracy." In United States v. Kostoff,
585 F.2d 378 (9th Cir. 1978), we discussed the quantum of
proof required to show a defendant's knowing participation in
a conspiracy:


       The government need not show direct contact or
      explicit agreement between the defendants. It is suf-
      ficient to show that each defendant knew or had rea-


                               4743


      son to know of the scope of the conspiracy and that
      each defendant had reason to believe that[his] own
      benefits were dependent on the success of the entire
      venture.


Id. at 380 (emphasis added).

Appellants rely on our decision in United States v. Aguilar,
80 F.3d 329 (9th Cir. 1996), to support their contention that
the district court's instruction was erroneous. In Aguilar,
actual knowledge was an essential element of the offense
charged. See id. at 330. We held in Aguilar that a jury instruc-
tion which erroneously includes both a subjective and an
objective standard of knowledge creates the possibility of a
conviction without the requisite proof of guilt. See id. at 331.


[26] Aguilar is inapposite where, as here, objective knowl-
edge is sufficient to connect a defendant to a conspiracy
already proven to exist. See Arbelaez, 719 F.2d at 1458-59
(holding that once the Government has established that a con-
spiracy exists, "[i]t is sufficient to show that each defendant
knew or had reason to know of the scope of the conspiracy"
to prove defendant's knowing participation) (internal citation
omitted). The Government does not dispute that actual knowl-
edge is required to prove the existence of a conspiracy. How-
ever, the language in Instruction 17 addressed the defendants'
connection to the conspiracy, not the question of whether or
not a conspiracy existed. Therefore, inclusion of the objective
knowledge standard in Instruction 17 was not error.


IX

[27] Montgomery and Buxton argue that reversal is com-
pelled because the district court provided the jury with written
transcripts of Blair's and Farley's trial testimony. The jury
twice requested the district court to provide it with the tran-
scripts. After careful deliberation, the district court assented
to the jury's request, noting that the transcripts were heavily


                               4744


relied upon by both the defense and the prosecution during the
trial.


We review a district court's decision to allow the jury to
read transcripts in the jury room for abuse of discretion. See
United States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir.
1994). The decision to allow the jury to read transcripts in the
jury room is "dependent on the particular facts and circum-
stances of the case." United States v. Binder, 769 F.2d 595,
600 (9th Cir. 1985).


We have previously acknowledged the possibility that
allowing a jury to read the transcripts of a witness's testimony
"may place undue emphasis on testimony considered a second
time at such a late stage of the trial." United States v. Sacco,
869 F.2d 499, 501 (9th Cir. 1989). In United States v. Lujan,
936 F.2d 406 (9th Cir. 1991), however, we upheld a district
court's decision to comply with the jury's request to provide
it with the trial transcript. In Lujan, we commented favorably
on an instruction given by the district court to prevent the jury
from placing undue emphasis on the testimony. See id. at 411-
12. The trial court in Lujan "cautioned the jury that the tran-
script would not serve as a substitute for their memory or
assessment of witness credibility[,] . . . admonished [the jury]
to weigh all the evidence and not to use the transcript to focus
on any portion of the trial . . . [and] instructed the jury the
transcript was not authoritative and the juror's memory should
prevail." Id. at 412.


[28] Here, the district court gave Supplemental Jury
Instruction 1, which provided as follows:


      I want you to bear in mind that the testimony at trial
      is the evidence, not the transcripts. The transcript is
      not authoritative. If you remember something differ-
      ent from what appears in the transcripts, your collec-
      tive recollection is controlling. In other words, the
      transcripts may not serve as a substitute for the col-


                               4745


      lective memories of the jury or take the place of the
      assessment of the credibility of witnesses subject to
      the usual rules . . . . Finally, as the court has previ-
      ously instructed you, you must weigh all of the evi-
      dence in the case and not focus on any one portion
      of the trial.


Prior to making its decision, the district court, like the trial
court in Lujan, provided counsel with the opportunity to note
inaccuracies in the transcripts. The district court's decision to
allow the transcripts into the jury room was not an abuse of
discretion.


X

Montgomery contends that he was prejudiced by the district
court's statement in Instruction 16 that, as a matter of law,
"the evidence is insufficient to convict defendant Lloyd Ray
Buxton of conspiracy . . . as charged in Count Three." Mont-
gomery timely objected to the district court's proposed
instruction. He now asserts that "[t]he trial court's comments
. . . impermissibly implied -- vouched for the fact -- that
there was sufficient evidence against the remaining
defendants." (Montgomery's Opening Br. at 51.) A district
court's formulation of jury instructions is reviewed for abuse
of discretion. See United States v. De Cruz, 82 F.3d 856, 864
(9th Cir. 1996). In deciding whether the district court abused
its discretion, we consider whether the instructions as a whole
are misleading or inadequate to guide the jury's deliberations.
See United States v. Moore, 109 F.3d 1456, 1465 (9th Cir.),
cert. denied, 118 S.Ct. 108 (1997).


[29] We are inclined to agree with Montgomery that the
district court's statement to the jury that the evidence against
Buxton was insufficient would have resulted in prejudice if
unaccompanied by a curative instruction. In United States v.
DeLucca, 630 F.2d 294 (5th Cir. 1980), the Fifth Circuit held:


                               4746


       [O]nce the fact of a codefendant's guilt or inno-
      cence is made known to the jury, it is incumbent
      upon the trial judge to take appropriate corrective
      action in order to protect the remaining defendants'
      substantive rights. Immediate jury instructions are
      but one of the many curative methods at his disposal.


Id. at 299.

[30] Here, the district court gave the jury the following
admonition: "This disposition should not influence your ver-
dict with reference to the remaining count against defendant
Buxton or the remaining counts against defendants McClain
and Montgomery. You must base your verdict solely on the
evidence before you." We conclude that the court's instruc-
tion regarding the dismissal of Count Three against Buxton,
when viewed as a whole, was not misleading or prejudicial.


XI

[31] Buxton argues that the district court improperly admit-
ted evidence of his 1986 conviction for conspiracy to manu-
facture methamphetamine. Rule 404(b) of the Federal Rules
of Evidence precludes the admission of evidence of "other
crimes . . . to prove the character of a person in order to show
action in conformity therewith." Fed. R. Evid. 404(b). Evi-
dence of other crimes, however, is admissible to prove
"motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Id. We review a
district court's decision to admit evidence of other crimes for
abuse of discretion. See United States v. Arambula-Ruiz, 987
F.2d 599, 602 (9th Cir. 1993).


We have adopted a four-part test to determine the admissi-
bility of evidence under Rule 404(b). See United States v.
Basinger, 60 F.3d 1400, 1407-08 (9th Cir. 1995). First, the
evidence of other crimes must tend to prove a material issue
in the case. Second, the other crime must be similar to the


                               4747


offense charged. Third, proof of the other crime must be
based on sufficient evidence. Fourth, commission of the other
crime must not be too remote in time. See id. In addition to
satisfying the four-part test, evidence of other crimes must
also satisfy the Rule 403 balancing test -- its probative value
must not be substantially outweighed by the danger of unfair
prejudice. See Fed. R. Evid. 403. The Government has the
burden of demonstrating that the evidence of other crimes sat-
isfies these requirements. See Arambula-Ruiz, 987 F.2d at
602-03.


Buxton's argument focuses on the first and second prongs
of the Basinger test. He contends that knowledge was not a
material issue in this case. He also maintains that knowledge
of methamphetamine manufacture is irrelevant to metham-
phetamine distribution. Buxton's first contention is without
merit. In United States v. Mayans, 17 F.3d 1174 (9th Cir.
1994), we held that knowledge and intent are material issues
"simply because the government had to prove them. " Id. at
1182. "To establish a drug conspiracy, the government must
prove: 1) an agreement to accomplish an illegal objective; and
2) the intent to commit the underlying offense." Iriarte-
Ortega, 113 F.3d at 1024. "Knowledge of the objective of the
conspiracy is an essential element of any conspiracy
conviction." United States v. Krasovich, 819 F.2d 253, 255
(9th Cir. 1987). "[T]he fact that appellant's defense was non-
participation does not render the issue of knowledge
irrelevant." Mayans, 17 F.3d at 1182.


[32] Buxton maintains that there is no logical nexus
between the knowledge "gained" from manufacturing
methamphetamine and the knowledge required for the distri-
bution of methamphetamine. Prior acts, when offered to show
knowledge, however, need not be similar to the charged act
"as long as the prior act was one which would tend to make
the existence of the defendant's knowledge more probable
than it would be without the evidence." United States v.
Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992) (inter-


                               4748


nal quotation marks and citations omitted). A jury could prop-
erly infer from Buxton's prior conviction for conspiracy to
manufacture methamphetamine that he was sufficiently famil-
iar with the illicit production of methamphetamine so as to
possess knowledge regarding its distribution. See United
States v. Otis, 127 F.3d 829, 834 (9th Cir. 1997), cert. denied,
1998 WL 111602 (U.S. Apr. 06, 1998) (No. 97-8207) (hold-
ing that in a money laundering case, evidence of defendants'
prior drug convictions was admissible under Rule 404(b) to
show knowledge that money was derived from cocaine sales
where the prior convictions tended to show defendants' famil-
iarity with the cocaine business).


[33] The district court gave a limiting instruction regarding
evidence of other crimes. The court instructed the jury as fol-
lows: "You have heard evidence that defendant Lloyd Ray
Buxton has previously been convicted of conspiracy to manu-
facture methamphetamine. You may consider that evidence
only as it bears on intent, knowledge, or lack of mistake and
for no other purpose. You may not consider a prior conviction
as evidence of guilt of the crime for which the defendant is
now on trial." In Arambula-Ruiz, we explained that "an
appropriate instruction limiting the purpose for which the jury
could consider evidence of a defendant's prior conviction" is
a factor weighing in favor of admission of Rule 404(b) evi-
dence. 987 F.2d at 604. In light of the limiting instruction and
the district court's careful application of Fed. R. Evid. 403
and 404, we conclude that it did not abuse its discretion in
admitting evidence of Buxton's prior conviction.


XII

Buxton contends that there was insufficient evidence in the
record as a matter of law to support his conviction on Count
Two -- conspiracy to distribute methamphetamine. In review-
ing the record for sufficiency of the evidence, we must deter-
mine whether "after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could


                               4749


have found the essential elements of the crime beyond a rea-
sonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979). "Circumstantial evidence and inferences drawn from
it may be sufficient to sustain a conviction." United States v.
Lennick, 18 F.3d 814, 820 (9th Cir. 1994).


[34] Buxton concedes that the evidence, viewed in the light
most favorable to the prosecution, shows a conspiracy
between Montgomery and McClain. This concession is war-
ranted by the record. The testimony of Helen Farley and
Joanne Blair painted a picture for the jury of an organized dis-
tribution network for the methamphetamine produced in Can-
ada. While Farley's testimony most clearly showed Buxton's
involvement in the conspiracy, there was also a significant
amount of circumstantial evidence implicating Buxton -- the
phone records, the slips of paper with Buxton's name and
number found in Canada, and references to the "boys in
Sacramento."


[35] The jury was entitled to infer from the evidence in the
record that Buxton was a co-conspirator, not merely an occa-
sional buyer. In United States v. Delgado, 4 F.3d 780 (9th Cir.
1993), we explained that certain conduct "may be sufficient
to indicate the existence of more than a buyer-seller relation-
ship . . . including: arranging contacts and meetings . . . and
transaction in large quantities with regularity. " Id. at 791. Far-
ley's testimony thus provides a basis for the jury to find that
Buxton was part of an agreement to distribute methamphet-
amine. The evidence was sufficient to sustain Buxton's con-
viction on Count Two.


XIII

[36] Buxton argues that the district court's instructions
inadequately explained that evidence of a mere buyer-seller
relationship is insufficient to support a conspiracy conviction.
A defendant is not entitled to have the jury instructed "in the
particular language of his choice." Brooks v. Cook, 938 F.2d


                               4750


1048, 1053 (9th Cir. 1991). The court instructed the jury that
"existence of a buyer-seller relationship does not prove the
existence of a conspiracy to manufacture, distribute and/or
import a controlled substance; the defendants must have
reached an agreement or arrived at a plan to further the manu-
facture, distribution, and/or importation of a controlled
substance." This instruction adequately explained to the jury
the law regarding a buyer-seller relationship.


Conclusion

We summarize our disposition of the issues raised in this
appeal as follows:


We conclude that charging separate conspiracies under the
same conspiracy statute does not violate the Double Jeopardy
Clause where the alleged conspiracies are factually distinct.
The identification procedures employed in this case with
respect to one prosecution witness were suggestive and
unnecessary under the circumstances confronting the investi-
gators. Because the Government demonstrated that the wit-
ness's in-court identification was independently reliable, the
admission of this evidence did not violate due process. The
Government's failure to notify Montgomery's counsel prior to
bringing that witness into court to confirm his identification
before being called to testify did not deprive the accused of
his right to counsel because the confrontation was not critical.
Montgomery's counsel's cross-examination of the witness
permitted the jury to weigh the impact of the suggestive pro-
cedure against the reliability of the witness's in-court identifi-
cation. Based on the Supreme Court's construction of
identical language in 21 U.S.C. S 846, we hold that the district

court did not err in concluding that section 963 of Title 21
does not require proof of an overt act to sustain a judgment
of conviction.


The district court did not err in its instruction to the jury
regarding the level of knowledge required to connect a defen-


                               4751


dant to a pre-existing conspiracy. The district court's failure
to offer a Sears instruction sua sponte was not plain error
because Montgomery did not rely on a Sears-type defense
theory at trial. The district court's Pinkerton instruction was
neither misleading nor inadequate to guide the jury's delibera-
tions on the issue of co-conspirator vicarious liability. The
court's comment regarding the dismissal of Count Three
against Buxton was not prejudicial in light of the contempora-
neous curative instruction that was read to the jury. The dis-
trict court properly instructed the jury that evidence of a mere
buyer-seller relationship is insufficient to support a conviction
for conspiracy to distribute methamphetamine.


The district court did not abuse its discretion in admitting
evidence of Buxton's prior conviction for conspiracy to man-
ufacture methamphetamine to prove his knowledge of the
objectives of the conspiracy to distribute methamphetamine
alleged in the indictment.


There is sufficient evidence in the record to sustain the
judgment of conviction against Buxton. The record also dem-
onstrates that the district court properly exercised its discre-
tion in providing the jury with transcripts of the testimony of
two of the Government witnesses.


The judgment of conviction is AFFIRMED as to each
appellant.


                               4752







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