witness responded in the negative, to ask whether the caller requested to speak with "another defendant." In fact, no such questions were asked. After the Court ruled that the testimony regarding the telephone calls could be admitted without reference to the two first names mentioned by one caller, the prosecutor asked the witness to "tell the jury what the caller said to you, and what you said to the caller." The witness responded that the caller asked for "a defendant." There was no objection. The witness continued that he said there was no one there by that name and the caller then asked if "another one of the defendants" was there. Again, there was no objection. The witness then began describing other calls in which the callers had not asked for anyone in particular. The prosecutor asked whether any of these callers had asked for Gaines, at which point the Court sustained a defense objection. Only then, at sidebar, did defense counsel object to the testimony by Avato that the first caller asked for a defendant and then another defendant.
The Court struck this portion of the testimony and instructed the jury to disregard it. The defendants were not prejudiced. Also, there was no prosecutorial misconduct evidenced by this testimony. The prosecutor did not elicit it. The witness volunteered it.
Next, defendants contend that the prosecutor committed misconduct by stating that the reason defense counsel would not offer a document into evidence was that it had "too much stuff in it that they don't want." While this statement may have been ill-advised, it did not mandate a mistrial and does not require a new trial.
Improprieties in a prosecutor's remarks warrant a new trial only if they are so gross that there is a probability of prejudice to the defendants and such prejudice was not neutralized by the court. Munford, 431 F. Supp. at 290. Any harm from prosecutorial misconduct must affect "a substantial right of the defendants and the prejudice must be balanced against the evidence of guilt." Id. There was no such probability of prejudice here, and the Court instructed the jury that counsel's comments were not evidence and should not be considered as indicative of anything. This admonition was repeated in the court's charge, and the jury was directed not to speculate about any item that for any reason was not placed in evidence. In addition, the evidence of defendants' guilt was substantial. The Court finds that no substantial right of the defendants was prejudiced by the remark. The motion for a mistrial was properly denied and there is no basis for a new trial.
Defendants next contend that it was misconduct for the prosecutor to argue that they may not have used the scale found in the bedroom closet to measure the cocaine because they were "so skilled at packing bags of cocaine." This was in rebuttal to a defense contention that the police had fraudulently constructed and photographed the scene to look like a cocaine packaging operation but forgot to include the scale. Under the circumstances, this was permissible rebuttal argument.
Finally, defendants sought a mistrial on the basis of the prosecutor's argument that if any defendant were innocent, he would have quickly left the apartment because of the obvious criminal activity occurring there. This was permissible argument. See U.S. v. Staten, supra, at 885 n. 67. Moreover, the court instructed the jury that "mere presence" at the scene of a crime was not sufficient to prove guilt.
E. Asserted Errors in the Charge to the Jury
The court denied defendant Pickard's request for a lesser included offense charge of simple possession of cocaine and conspiracy to possess cocaine. The charge was properly refused.
A lesser included offense charge should be given only where the evidence warrants it, i.e., "if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater." Hopper v. Evans, 456 U.S. 605, 611-12, 72 L. Ed. 2d 367, 102 S. Ct. 2049 (1982) (quoting Keeble v. U.S., 412 U.S. 205, 208, 36 L. Ed. 2d 844, 93 S. Ct. 1993 (1973)). In this case there was no evidence to support a charge of simple possession which also would also permit the jury to acquit the defendant of possession with intent to distribute.
This case involved nearly a kilogram of cocaine worth almost $ 100,000. This is well in excess of what one would possess for personal consumption. Further, the physical evidence strongly indicated that the cocaine was being packaged for street distribution. Finally, there was no evidence from which the jury reasonably could have concluded that Pickard merely possessed a small portion of this cocaine. He was charged with joint constructive possession and the jury could only conclude that he possessed all of it or none of it. See United States v. Zapata-Tamallo, 833 F.2d 25, 28 (2d Cir. 1987) (lesser included offense charge properly refused where defendant possessed more than required for personal use); United States v. Espinosa, 827 F.2d 604, 615 (9th Cir. 1987) (lesser included offense charge properly refused where no evidence to suggest defendant owned only portion of drugs), cert. denied, 108 S. Ct. 1243, 485 U.S. 968, 99 L. Ed. 2d 441 (1988); United States v. Payne, 256 U.S. App. D.C. 358, 805 F.2d 1062, 1067 (D.C. Cir. 1986) (lesser included offense charge should not be given where defense is entirely exculpatory); United States v. Johnson, 734 F.2d 503, 506 (10th Cir. 1984) (defendant not entitled to lesser included offense charge of possession when he possessed 26 grams of cocaine worth over $ 13,000, and drug dealing paraphernalia).
Finally, defendants assert as error this Court's "fail[ure] to charge the jury pursuant to various requests for charge submitted on behalf of defendants."
This claim also is without merit.
Rule 30 of the Federal Rules of Criminal procedure mandates that "no party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires, . . . stating distinctly the matter to which that party objects and the grounds of the objection." A defendant who fails to bring specific objections to the Court's attention prior to jury deliberation waives any right to assert error in the charge as given, absent plain error affecting a substantial right. United States v. Wilkins, 422 F. Supp. 1371, 1379 (E.D.Pa. 1976), aff'd, 547 F.2d 1164 (3d Cir. 1976), cert. denied, 444 U.S. 877, 62 L. Ed. 2d 106, 100 S. Ct. 163 (1979).
Other than Pickard's objection to the refusal of a lesser included offense charge, the defendants did not make or preserve a single objection to the jury instructions. The Court finds nothing in the charge which constitutes plain error. The mere submission of a proposed charge does not preserve the failure to give it as an issue for review. United States v. Jackson, 569 F.2d 1003, 1009 (7th Cir. 1978), cert. denied, 437 U.S. 907, 57 L. Ed. 2d 1137, 98 S. Ct. 3096 (1978). Defendants must make distinct objections. Id. Defendants' boilerplate post-trial objection, even had it been raised at trial, would not be sufficient under Fed.R.Crim.P. 30. Defendants' motion for a new trial on this ground will be denied.
AND NOW, this 18th day of August, 1989, upon consideration of the Omnibus Post-Trial Motions filed in the above case and the response of the government thereto, IT, IS HEREBY ORDERED that said Motions are DENIED.