People of the Territory of Guam v. Palomo

Decision Date02 September 1994
Docket Number93-10261 and 93-10394,Nos. 93-10256,s. 93-10256
Citation35 F.3d 368
PartiesThe PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Vincent P. PALOMO, Defendant-Appellant. The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Steven ALBERTSON, aka Fred Iyar, Defendant-Appellant. The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Vincent P. PALOMO, Defendant, and James M. Maher, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Birney Bervar, Honolulu, HI, for defendant-appellant Palomo.

Robert E. Hartsock, Moore, Ching, Boertzel, Civille, Dooley & Roberts, Agana, Guam, for defendant-appellant Albertson.

Raymond Carl Wagner, Agana, Guam, and Milton E. Franke, Walnut Creek, CA, for defendant-appellant Maher.

Robert C. Sacco, Atty. General's Office, Agana, Guam, for plaintiff-appellee.

Appeals from the United States District Court for the District of Guam, Appellate Division.

Before: FARRIS, BEEZER and RYMER, Circuit Judges.

ORDER

The amended memorandum disposition filed in this case on July 19, 1994 is redesignated as an opinion by Judge Beezer.

OPINION

BEEZER, Circuit Judge:

In this consolidated appeal, Vincent Palomo and Steven Albertson challenge the affirmance by the Appellate Division of the District Court of Guam of their convictions on six counts of aggravated murder, one count of burglary, two counts of robbery and three counts of possession and use of a deadly weapon in the commission of a felony in violation of Guam law. Palomo contends that the trial court erred in failing to suppress his unwarned statements and in excluding the testimony of three defense witnesses in violation of his Sixth Amendment right to compulsory process. He also contends that the unavailability of a transcript of the first two days of trial denied him an opportunity for meaningful appellate review in violation of principles of due process. Albertson joins in Palomo's arguments. He also contends that the court impaired his exercise of peremptory challenges by curtailing voir dire, erroneously denied his motion to dismiss the indictment due to prosecutorial misconduct during the grand jury proceedings and erroneously denied his motion for a new trial due to the government's failure to correct false testimony during trial. Albertson also takes exception to comments made by the prosecutor during closing argument.

James Maher, Palomo's court-appointed attorney, challenges the Appellate Division's order imposing sanctions for the tone and content of his briefs and for a comment he made during oral argument. He contends that the imposition of sanctions violated Local Rule 115(6)(d), governing disciplinary actions, and principles of due process. The Appellate Division had jurisdiction pursuant to 48 U.S.C. Sec. 1424-3(a). We have jurisdiction pursuant to 48 U.S.C. Sec. 1424-3(c). We affirm.

I

We review de novo the Appellate Division of the District Court of Guam. People of Guam v. Camacho, 10 F.3d 608, 611 (9th Cir.1993). We review the decision of the Superior Court of Guam as if it had not been heard previously by an appellate court. Id.

II

Albertson contends that the court erred in denying his motion to dismiss the indictment for prosecutorial misconduct during the grand jury proceedings. He points out that the government presented false testimony through Officer Howard and breached its duty to present exculpatory evidence, in violation of 8 G.C.A. Sec. 50.46, by failing to underscore several inconsistencies in LeFever's and James' statements.

There is a conflict whether we review de novo or for an abuse of discretion the denial of a motion to dismiss an indictment on the basis of prosecutorial misconduct. Compare United States v. Larrazolo, 869 F.2d 1354, 1355 (9th Cir.1989) with United States v. Gonzalez, 800 F.2d 895, 899 (9th Cir.1986). In any event, dismissal is a disfavored remedy. United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir.1985). This is especially true when sought after the conclusion of trial. Guam v. Muna, 999 F.2d 397, 399 (9th Cir.1993); see generally United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). Under these circumstances, dismissal is appropriate only when "the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair." Muna, 999 F.2d at 399 (quotations omitted).

Albertson's argument is without merit regardless of the proper standard of review. The government's presentation of Officer Howard's testimony did not constitute misconduct in any legally significant way, much less "render the proceedings fundamentally unfair." Officer Howard's confusion about the facts caused no discernible prejudice to the defendants, and, most significantly, his testimony was subsequently clarified.

Without deciding whether the inconsistencies in James' and LeFever's statements were, in fact, exculpatory, we also reject the second element of Albertson's argument because the government's tender of the witness statements to the grand jury met the formal requirements of Sec. 50.46. By its plain language, Sec. 50.46 only imposes a duty on the government to present evidence rather than to explain evidence beneficial to the defense.

III

Albertson contends that the court erred in denying his motion for a new trial on the basis that the government failed to correct the false testimony of its witness. He argues that LeFever falsely denied being the beneficiary of an understanding between local and federal authorities to move to reduce his federal sentence should he testify.

We review the denial of a motion for a new trial for an abuse of discretion. United States v. Endicott, 869 F.2d 452, 454 (9th Cir.1989). A conviction obtained through false evidence violates due process even when the government, although not soliciting the evidence, knowingly allows it to go uncorrected when it appears. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984); Endicott, 869 F.2d at 455. This principle applies even when the testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 1177-78, 3 L.Ed.2d 1217 (1959).

Albertson's argument is without merit. Although we acknowledge that the prosecutor has an independent duty to correct false testimony when it appears at trial, the record does not demonstrate that the government "knowingly failed to disclose that testimony used to convict a defendant was false." Endicott, 869 F.2d at 455. Despite having prior knowledge of the understanding, Palomo and Albertson asked a single question on cross-examination which could be construed as implicating the relevant agreement. The question was posed in context of a series of questions relating to the immunity agreement LeFever had signed that morning. LeFever answered all of those questions truthfully. Neither Palomo nor Albertson brought the matter to the court's attention until their motion for a new trial. It taxes credulity to posit that the government, much less the jury, was aware that false testimony was introduced under these circumstances. See United States v. Aichele, 941 F.2d 761, 765-66 (9th Cir.1991). This conclusion gains support from the fact that the prosecutor limited his efforts to rehabilitate LeFever to the two bases of impeachment focused on by the defense, the immunity agreement and the veracity of LeFever's grand jury testimony.

We also conclude that there was "no reasonable likelihood that the false testimony could have affected the jury verdict." Endicott, 869 F.2d at 455. The defense capably impeached LeFever's credibility on the basis of the immunity agreement. The additional impeachment value gained would have served only to emphasize a fact already established on cross-examination: that LeFever received a benefit for his testimony. Moreover, because LeFever's federal sentence was to expire in a mere five weeks, the government had a powerful weapon with which to rehabilitate LeFever should the understanding have been properly raised at trial.

IV

Relying on People v. Galloway, 100 Cal.App.3d 551, 160 Cal.Rptr. 914 (1979), Albertson contends that the court erred by allowing the prosecution to raise an inference of fabrication from the alibi witnesses' failure to come forward prior to trial.

Because Albertson failed to move for a mistrial or to otherwise object to the prosecution's closing argument, we review for plain error. See, e.g., United States v. Falsia 24 F.2d 1339, 1342 (9th Cir.1983). Galloway is inapposite as it applies only to inferences raised from a criminal defendant's exercise of his constitutional right to remain silent. The prosecution may draw reasonable inferences from the evidence during argument. United States v. Gray, 876 F.2d 1411, 1417 (9th Cir.1989). Fabrication was a reasonable inference from the alibi witnesses' failure to come forward under the circumstances of this case.

V

Albertson contends that the court erred by curtailing his opportunity to voir dire prospective jurors, thus impairing his exercise of peremptory challenges. Noting that five jurors who ultimately decided the case were not asked specifically about their views as to the presumption of innocence and that several jurors were removed for cause because of their disagreement with this principle, Albertson implies that there was a problem in the group voir dire conducted by the court. He also implies that the court erred in curtailing his voir dire privileges when the other attorneys were responsible for asking inappropriate questions.

We review the conduct of voir dire for an abuse of discretion. United States v. Pimentel, 654 F.2d 538, 542 (9th Cir.1981). Because the relevant Guam statutes track Fed.R.Crim.P. 24(a), we interpret the statutes as we do the Federal Rule. Cf. Guam v. Yang, 850 F.2d 507, 512 n. 8. (9th...

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