USA v. Rodrigo

• Decision Date: 14 December 2000
• Docket Number: D,JOSE,JESUS,Nos. 99-10443,GAMEZ-ORDUN,MARTINEZ-VILL,MARTINEZ-CARR,s. 99-10443
• Citation: 235 F.3d 453
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN RODRIGOefendants-Appellants. 99-10445 99-10048
• Court: U.S. Court of Appeals — Ninth Circuit

Page 453

235 F.3d 453 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN RODRIGO GAMEZ-ORDUNO, JOSE MARTINEZ-CARRA, JESUS MARTINEZ-VILLA, Defendants-Appellants.

Nos. 99-10443 99-10445 99-10048

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 6, 2000

Filed December 14, 2000

[Copyrighted Material Omitted]

Leslie A. Bowman, Tucson, Arizona, for defendant-appellant Gamez-Orduno; Enrique R. Gonzales, Nogales, Arizona, for defendant-appellant Martinez-Villa; Hector M. Figueroa, Tucson, Arizona, for defendant-appellant Martinez-Carra.

Robert L. Miskell, Assistant United States Attorney, Tucson, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona John M. Roll, District Judge, Presiding. D.C. No.CR-98-318-TUC-JMR

Before: John T. Noonan, Sidney R. Thomas, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon; Partial Concurrence and Partial Dissent by Judge Noonan

OVERVIEW

BERZON, Circuit Judge:

This case arose from an encounter near the Arizona-Mexico border between the three appellants and several Border Patrol agents, leading to appellants' arrest, conviction and sentencing for marijuana trafficking and other offenses.

In February of 1998, Border Patrol agents found appellants, along with seven other men, approximately 880 pounds of marijuana, and three handguns, in a trailer near Arivaca, Arizona. Following their arrest, a grand jury returned an indictment charging appellants and the others with conspiracy to possess with intent to distribute marijuana¹ and possession with intent to distribute marijuana.² The indictment also charged appellant Martinez-Villa with being a felon in possession of a firearm³ and with using and carrying a firearm during and in relation to a drug trafficking crime. ⁴

Several months later, the government filed informations asserting that appellants were subject to enhanced punishment on the drug charges due to prior drug convictions. Still later, the grand jury returned a superseding indictment against appellants, adding charges against appellants Martinez-Carra and Gamez-Orduno alleging use and carrying of a firearm during a drug trafficking crime and being felons in possession of firearms, and against all appellants for charges of illegal reentry after deportation.⁵ After appellants entered conditional guilty pleas, the district court sentenced each appellant to concurrent terms of imprisonment for 120 months on each count and eight years of supervised release thereafter.

All three appellants now appeal the district court's denial of their motions to suppress evidence discovered in what they allege was an illegal search of the trailer. Gamez-Orduno and Martinez-Carra appeal the denial of their motions to dismiss the superseding indictment based on a claim of prosecutorial vindictiveness, grounding their vindictiveness claim on both the superseding indictment and the earlier sentence-enhancing informations. Gamez-Orduno and Martinez-Carra also appeal the district court's denial of their motion to dismiss the indictment or otherwise sanction the government because the government failed to disclose the report of a proffer session with Martinez-Villa (the "free talk"), while Martinez-Villa appeals the district court's denial of his motion to dismiss the indictment based on the government's alleged breach of an immunity agreement governing the free talk. Finally, GamezOrduno appeals the district court's calculation for sentencing purposes of the quantity of marijuana attributable to him. We reverse the district court's ruling on the suppression motion and the Gamez-Orduno sentencing calculation, affirm the remaining district court rulings, and remand.

BACKGROUND

On the morning of February 22, 1998, Border Patrol agents found the tracks of a pack of horses heading northward near the Mexican border. Following the tracks, the agents discovered two locations where the horses' riders had dismounted, eaten and rested. At one of the rest stops, the agents found a torn scrap of vinyl. The agents eventually followed the tracks directly to the front door of a trailer, where they found fresh horse droppings on the patio and a piece of vinyl tarp that matched the scrap they had discovered on the trail. The agentsarrived at the trailer at around 2:00 p.m.

The agents heard voices coming from the trailer. Through the screen door an agent saw a man trying to hide. Concerned about the agents' safety, one agent opened the unlatched door. Inside the trailer, the agents found ten men, one of whom was trying to hide in the shower, and discovered Martinez-Villa sleeping on a fully-loaded handgun. The Border Patrol agents found 399.26 kilograms (approximately 880 pounds) of marijuana, and two handguns wrapped in some clothes. In addition to the guns and drugs, the agents seized two horses and a mule from outside the trailer and a heavy-duty scale from inside.⁶ All ten of the men found in the trailer were eventually indicted on charges related to the transport of the marijuana.

Appellants' testimony at the November 30, 1998 suppression hearing as to how they got to the trailer was as follows: On February 21, 1998, Gamez-Orduno and Martinez-Carra, along with other men arrested at the trailer who are not party to this appeal, were lost in the desert with a "load" of marijuana. A man named "Oscar" located them and transported them, lying down in the bed of a pickup truck, to a ranch in Arivaca. Oscar used a key from a key ring that also had the truck's ignition key on it to unlock the gate located at the entrance of the ranch, and drove through the gate to the trailer. He then unlocked the door to the trailer with a key from the same key ring, reached inside the trailer without looking, flipped on the light switch, and invited the smugglers in.

The trailer was owned by one Mary Ann Carrillo, Oscar's mother, and appeared to be someone's home. Oscar, who lived on his mother's property, provided the smugglers with food, sleeping bags and a place to sleep. Before Oscar left to get food, he told the men to stay in the trailer and not to "go out at all." All ten then spent the night in the trailer. GamezOrduno believed that Oscar had authority to allow him into the trailer because of Oscar's familiarity with the premises and his instruction to the men to stay in the trailer.

Initially, both Gamez-Orduno and Martinez-Villa testified that they were in the trailer awaiting a ride to Tucson, where they hoped to find work. On cross-examination, however, Martinez-Villa admitted that he had been approached at his house in Nogales, Mexico, and offered $500 to find and guide a lost group of marijuana backpackers to the trailer. He then related that he left Mexico on horseback, found the backpackers and guided them to the trailer; that he knew Mary Ann Carrillo because he had formerly worked at a neighboring ranch and had had one conversation with her then, when he was looking for some of her livestock; that that one conversation was the extent of his prior relationship with Mary Ann Carrillo; and that he had no prior relationship at all with Oscar Carrillo. Martinez-Villa stayed at the Carrillo ranch the night of February 22, he testified, "because I was tired and they gave me a break to be able to stay there."

The government's questions about Martinez-Villa's role in the smuggling enterprise, it was revealed at the suppression hearing, were based on a previously undisclosed report summarizing the free talk session with Martinez-Villa. The district court ordered the report disclosed after reviewing it in camera, noting that the report directly contradicted the government's previous position that neither Mary Ann Carrillo nor her son Oscar was involved in the drug trafficking or had any connection to the appellants, and that the appellants were trespassers in the trailer. Indeed, the court found, the report detailed the Carrillos' significant involvement in the drug operation at their ranch. The court deemed the report a material nondisclosure violating Brady v. Maryland , 373 U.S. 83 (1963), and required the government to disclose it. Because of the serious nature of the charges against appellants, the district court reluctantly decided not to grant any remedy beyond ordering disclosure and continuing the hearing to permit appellants the opportunity to consider the report and determine how to respond.

DISCUSSION

I. "Standing" to Challenge Search and Seizure [All Appellants]

The district court did not determine whether the warrant less search of the trailer was reasonable under the Fourth Amendment because it found that the appellants lacked Fourth Amendment "standing" -that is, that appellants' own Fourth Amendment rights were not violated. Appellants challenge this conclusion, maintaining that, as overnight guests of the Carrillos, they had a sufficient expectation of privacy in the trailer to be entitled to Fourth Amendment protection. We agree.

A. Fourth Amendment Protection Of Overnight Guests

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. Because the Fourth Amendment protects "people, not places," see Katz v. United States, 389 U.S. 347, 351 (1967), a person claiming a Fourth Amendment violation must, as an initial matter, demonstrate a "legitimate expectation of privacy" in the place searched or the thing seized. Rakas v. Illinois, 439 U.S. 128, 143 (1978). A person's expectation of privacy is deemed legitimate if it is "one that society is prepared to recognize as`reasonable.' " Katz, 389 U.S. at 361 (Harlan, J., concurring); see also Rakas, 439 U.S. at 143-44 (concluding that an expectation is reasonable if it derives from "a source outside of the Fourth Amendment, either by reference to concepts of real or...