MEMORANDUM*

Rafael Fernandez ("Fernandez") and Efrain Ramirez ("Ramirez")1 appeal their convictions for conspiracy to manufacture, distribute, and possess cocaine. In addition, Ramirez appeals his convictions for (1) aiding and abetting the attempted manufacture of cocaine, and (2) aiding and abetting the possession of cocaine with the intent to distribute it. We affirm.

Both Fernandez and Ramirez contend that the district court erred in denying their Fed.R.Crim.P. 14 motions to sever because much of the evidence presented at the joint trial was unrelated to the charges against them. We decline to review this issue.

" 'In this circuit, to preserve the issue on appeal, a motion to sever must be renewed at the close of the evidence or it is waived.' " United States v. Loya, 807 F.2d 1483, 1494 (9th Cir.1987) (quoting United States v. Burgess, 791 F.2d 676, 678 (9th Cir.1986)).

Because both Fernandez and Ramirez failed to renew their motions to sever at the close of the evidence, we decline to review the issue. Id.2

Fernandez contends that the district court erred by denying his motion in limine to exclude post-arrest statements. First, he contends that he did not validly waive his Miranda rights because the questioning agents (1) failed to ask him if he wished to waive his Miranda rights and (2) failed to advise him of his Miranda rights in Spanish. Second, he contends that the government failed to provide independent evidence that his statements were trustworthy and reliable. We disagree with both contentions.

"To be valid, a waiver of Miranda rights must be voluntarily, knowingly, and intelligently made." United States v. Bernard S., 795 F.2d 749, 751 (9th Cir.1986).

We uphold the district court's determination that Fernandez knowingly and voluntarily waived his Miranda rights. Although the record does indicate that (1) no one ever specifically asked Fernandez if he wished to waive his Miranda rights, and (2) Fernandez had some difficulty with English, there was ample evidence that Fernandez knowingly and voluntarily waived his Miranda rights. A DEA agent presented a sworn declaration stating that he advised Fernandez of his rights in English because he knew from his own investigation of Fernandez's drug activities that Fernandez spoke English. This DEA agent further stated that Fernandez said he understood his Miranda rights and agreed to waive them. In addition, Fernandez's son, who speaks English fluently, was present throughout the questioning. See id. at 752-53 (fact that non-English-speaking defendant had English-speaking mother at his side throughout questioning was relevant in determining whether waiver of Miranda rights was voluntary). Additionally, the DEA agent's declaration was corroborated by the declarations of two other DEA agents. Although Fernandez's testimony contradicted the agents' declarations, the district court was free to disbelieve the defendant's testimony. See Anderson v. Bessemer City, 470 U.S. 564, 575-76 (1985).

B. Independent Evidence of Post-Arrest Statements

We hold that the district court properly admitted Fernandez's post-arrest statements. Fernandez erroneously relies on Smith v. United States, 348 U.S. 147 (1954), and Opper v. United States, 348 U.S. 84 (1954), to support his contention that his post-arrest statements were not admissible absent substantial independent evidence corroborating the statements. In Smith, the Court held that a defendant cannot be convicted solely on the basis of his out-of-court confession; the government must present substantial independent evidence to corroborate a confession. See 348 U.S. 152-53. Opper extended this rule to statements, even if it intended to be exculpatory, that constitute admissions of essential facts or elements of the charged offense. See 348 U.S. 91-92. Here, however, the post-arrest exculpatory statements were not introduced to prove the truth of what Fernandez asserted. Quite to the contrary, the government sought to prove the statements false in order to show that he knew of the illegal object of the conspiracy at the time he ordered the chemicals. Therefore, the government was not required to introduce substantial independent evidence to corroborate the very statements it was seeking to prove untrue.

Both Fernandez and Ramirez contend that there was insufficient evidence to support their conspiracy convictions. We disagree.

On a challenge to the sufficiency of the evidence, we must determine "whether a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir.1986).

"Once a conspiracy exists, evidence establishing beyond a reasonable doubt defendant's connection with the conspiracy, even though the connection is slight, is sufficient to convict defendant of knowing participation in the conspiracy." United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987).

"The uncorroborated testimony of an accomplice is enough to sustain a conviction [on a challenge to the sufficiency of the evidence] unless the testimony is incredible or unsubstantial on its face." United States v. Lopez, 803 F.2d 969, 973 (9th Cir.1986), cert. denied, 107 S.Ct. 1958 (1987).

Here, we conclude that there was sufficient evidence to support Fernandez's conviction. Fernandez does not dispute the existence of the conspiracy to manufacture cocaine. The government established Fernandez's connection to the conspiracy by showing that he ordered acetone, ether, and hydrochloric acid--chemicals necessary to process cocaine base into cocaine hydrochloride. Although the chemicals were legal, Fernandez's guilty knowledge can be inferred by the following facts: (1) he had purchased benzocaine, a numbing agent for cocaine, on four previous occasions; (2) he paid a Hoffman Chemical employee $34,000 in cash for chemicals while employed as a security guard; (3) he oversaw the loading of the chemicals onto a truck by two co-conspirators and saw one of the co-conspirators scan the drums of chemicals with a transmitter detector; (4) he informed a Hoffman Chemical employee that the police had become involved with the chemical shipment; and (5) in his post-arrest interview, he lied about purchasing acetone.

We also conclude that sufficient evidence supported Ramirez's conviction. Ramirez concedes that a conspiracy existed. The government presented sufficient evidence to connect Ramirez to the conspiracy. The ranch owner's testimony established that Ramirez (1) met with his co-conspirators and discussed the transportation of chemicals to the ranch; (2) examined the lab site at the ranch and discussed how to dispose of the chemicals after they were used in the cocaine manufacturing process; and (3) arranged for the ranch owner to meet two men, who were driving a load of ether from Florida to California.

We reject Ramirez's claim that the ranch owner's uncorroborated testimony is insufficient to sustain his conviction. The telephone record of a call from Ramirez's mother's house to a pay phone outside of the ranch owner's motel constitutes some corroboration. There is nothing incredible or inherently implausible in the ranch owner's statement that it took one full day for him to drive with Ramirez from Long Beach to the ranch because they traveled along a route which avoided highway truck scales. Nor is the ranch owner's testimony rendered incredible or inherently implausible by the fact that he gave conflicting dates as to when he met Ramirez. Such an error on a single detail is not materially impeaching given the length and scope of the conspiracy.

Fernandez contends that the district court erred in admitting evidence that he had previously purchased benzocaine from Hoffman Chemicals because the evidence was (1) not relevant to a material issue and (2) more prejudicial than probative. We disagree.

Under Rule 403, Fed.R.Evid., the district court may exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." The district court's rulings under this Rule are reviewed for abuse of discretion. See Lewy v. Southern Pac. Trans. Co., 799 F.2d 1281, 1287 (9th Cir.1986). The evidence of Fernandez's prior benzocaine purchases had substantial probative value and created no unfair prejudice. Fernandez's prior benzocaine purchases were relevant to prove knowledge and intent regarding the conspiracy, both of which were material issues. Moreover, Fernandez opened the door to testimony concerning the use of benzocaine as a numbing agent for cocaine by calling an expert witness to testify that, based on his knowledge, the only use of benzocaine was as a topical anesthetic. Because Fernandez first offered evidence regarding the uses of benzocaine, he may not object to the government's subsequent relevant cross-examination of the expert witness. See United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir.1982) (because defendant opened up subject of prior conviction in his direct testimony, he may not object to the government's subsequent inquiries into the relevant aspects of his prior conviction).

Fernandez contends that the district court abused its discretion by failing to question prospective jurors about their experience with drugs. We disagree.

A trial judge may abuse his discretion if the questions asked are not reasonably sufficient to test the jury for bias or partiality. United States v. Washington, 819 F.2d 221, 224 (9th Cir.1987).

Here, we conclude that the district court did not abuse its discretion because the court's voir dire was sufficient to disclose the potential jurors' prejudices about drugs. The court (1) fully informed the prospective jurors of the nature of the charges against Fernandez; (2) specifically asked the prospective jurors if they had feelings about cocaine that would prevent them from fulfilling their roles as jurors; (3) instructed the jurors that they must disregard everything they may have learned about drugs in the media, and that they could not allow their emotional feelings about drugs to influence their consideration of the evidence; and (4) asked the prospective jurors if any of them felt they could not follow the instruction to discount the media and their feelings.

Both Fernandez and Ramirez contend that the district court abused its discretion by referring the jury to its original instructions in response to a note from the jury. We disagree.

"[T]he district court has the responsibility to eliminate confusion when a jury asks for clarification of a particular issue." United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir.1986), cert. denied, 107 S.Ct. 1289 (1987). "The ultimate question is 'whether the charge taken as a whole was such as to confuse or leave an erroneous impression in the minds of the jurors.' " United States v. McCall, 592 F.2d 1066, 1069 (9th Cir.), cert. denied, 441 U.S. 936 (1979) (quoting Powell v. United States, 347 F.2d 156, 158 (9th Cir.1965)).

We conclude that the district court properly responded to the jury's note because the instruction on knowledge (1) answered their question and (2) properly defined the knowledge requirement.3 The instruction answered the jury's question because it made clear that knowledge of the unlawful plan, not mere suspicion, was required to convict Fernandez on the conspiracy charge. The district court properly instructed the jury on the issue of knowledge in its original charge to the jury because the instruction indicated that the evidence must show that the defendant knew of the conspiracy and acted in furtherance of it. See United States v. Guerrero, 756 F.2d 1342, 1349 (9th Cir.), cert. denied, 469 U.S. 934 (1984).

A. Denial of Request for Investigator of Choice

Fernandez contends that the district court abused its discretion in denying his request for expenses for an investigator of his choice. We disagree.

18 U.S.C. Sec. 3006A(e) "requires the court to authorize defense services for indigent defendants 'when the defense attorney makes a timely request in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them.' " United States v. Brewer, 783 F.2d 841, 842 (9th Cir.) (quoting United States v. Bass, 477 F.2d 723, 725 (9th Cir.1973)), cert. denied, 479 U.S. 831 (1986). "In addition, the defendant must show, by clear and convincing evidence, 'the prejudice ... caused by the court's failure to appoint an expert.' " Id. at 843 (quoting United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980)).

We affirm the district court's denial of funds for Fernandez's investigator of choice. First, Fernandez expressly agreed that the Miami investigator whom the district court appointed was acceptable. Second, Fernandez has made no showing that the appointment of the Miami investigator, rather than his investigator of choice, prejudiced his defense.

B. Denial of Request for Funds for Character Witnesses

Fernandez contends that the district court abused its discretion by denying Fernandez's request for funds for character witnesses who could not afford to travel from Florida to California to testify on his behalf. We disagree.

We conclude that the district court properly denied Fernandez's request for funds for character witnesses. Fernandez erroneously requested funds for character witnesses under 18 U.S.C. Sec. 3006A. By its terms, 18 U.S.C. Sec. 3006A(e) only applies to "investigative, expert, or other services," not transportation costs for character witnesses.

Ramirez contends that he was denied the effective assistance of counsel. We decline to reach this issue.

The customary procedure for challenging the effectiveness of counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. Sec. 2255. United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir.1987). In a section 2255 proceeding, a defendant may present new facts for the record. United States v. Johnson, 820 F.2d 1065, 1074 (9th Cir.1987). In contrast, on direct appeal "[t]he defendant must point to errors or omissions in the record on appeal that establish that he did not receive adequate representation." United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir.1985) (emphasis in original). This court has rejected claims of ineffective assistance where the record is not adequate to resolve the question on direct appeal. See, e.g., Wagner, 834 F.2d at 1482-83.

Here, we dismiss Ramirez's claim of ineffective assistance of counsel without prejudice so that Ramirez may bring a section 2255 action. Because the district court was not called upon to question Ramirez's counsel's trial strategy, the record is inadequate to evaluate the merits of Ramirez's claim. Permitting Ramirez to collaterally attack his conviction under section 2255 would provide a more complete record on which this court could base its review. See id. at 1483.

Ramirez contends that the prosecutor improperly vouched for the credibility of the ranch owner, the chief government witness, and government agents. We conclude that even if vouching occurred, there was no plain error.

"Prosecutorial vouching may occur when the prosecutor either (1) 'place[s] the prestige of the government behind the witness' through personal assurances of the witness's veracity, or (2) suggests that 'information not presented to the jury supports the witness's testimony' ". United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir.1988) (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980)).

Here, even if vouching occurred, we conclude that the challenged statements do not rise to the level of harmless error because the trial judge gave an appropriate curative instruction in each instance. See United States v. Endicott, 803 F.2d 506, 513 (9th Cir.1986) (trial judge's instruction can neutralize the effect of inappropriate prosecutorial comments). The district court cured the effect of the first instance of vouching when it instructed the jury that the ranch owner's statements should be examined with greater caution than those of an ordinary witness because the ranch owner was an accomplice to the crime. Cf. United States v. Shaw, 829 F.2d 714, 718 (9th Cir.1987) (prosecutorial vouching held to be harmless error where trial court instructed the jury that the testimony of a witness who was the beneficiary of a plea bargain should be examined with greater caution than the testimony of an ordinary witness), cert. denied, 108 S.Ct. 1157 (1988). Similarly, the district court cured the effect of the vouching on closing argument when it told the jury that the lawyer's statements during closing argument were not evidence. See Endicott, 803 F.2d at 513.

AFFIRMED.