U.S. v. Blanco

• Decision Date: 27 December 2004
• Docket Number: No. 03-10390.,03-10390.
• Citation: 392 F.3d 382
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rene BLANCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

392 F.3d 382

UNITED STATES of America, Plaintiff-Appellee, v. Rene BLANCO, Defendant-Appellant.

No. 03-10390.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2004.

Filed December 27, 2004.

COPYRIGHT MATERIAL OMITTED

Michael K. Powell, Cynthia Hahn, Federal Public Defender, Reno, Nevada, for the defendant-appellant.

Craig S. Denney, Office of the United States Attorney, Reno, Nevada, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; David W. Hagen, District Judge, Presiding. D.C. No. CR-01-00150-DWH.

Before: T.G. NELSON, W. FLETCHER, and BERZON, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

After a jury trial, Rene Blanco was convicted of various drug crimes. Blanco appeals his conviction on two primary grounds. He contends that the government failed to disclose material impeachment evidence as required by Brady v Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). He further contends that a flight instruction should not have been given to the jury.

We hold that the government wrongly suppressed impeachment information about a confidential informant in violation of Brady and Giglio. We do not know whether there is additional Brady and Giglio material that the government has still not turned over to the defendant. We remand with instructions to the district court to order the government to reveal all information in its possession concerning the confidential informant. To the degree necessary and appropriate, the district court may inspect this material in camera.

We further hold that the district court erred in giving a flight instruction to the jury, but that this error, considered alone, was harmless.

I. Background

Defendant Rene Blanco, along with co-defendant Ediberto Alvarez-Farfan ("Alvarez"), was convicted of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(viii), and aiding and abetting the distribution of methamphetamine in violation of 18 U.S.C. § 2.¹

The government's case depended heavily on the testimony of a paid confidential informant, Pedro Rivera-Barriga ("Rivera"). Rivera is a Mexican national who had previously been in the United States illegally but had received a "special parole visa" in return for his work for the Drug Enforcement Administration ("DEA"). This special visa allowed him to remain in the country. At the time of his testimony in this case, Rivera had worked as an informant for the DEA in at least ten prior cases.

The government suspected that defendant Blanco was involved in illegal distribution of methamphetamine in Winnemucca, Nevada. At the request of the DEA, Rivera drove to Winnemucca from Phoenix, Arizona, arriving in Winnemucca on September 18, 2001. For the next two or three days, Rivera and DEA agents tried unsuccessfully to locate Blanco. The DEA agents left Winnemucca either on or just before September 21. Rivera testified at trial that he met Blanco on September 21, and that at that meeting they discussed the possibility that Rivera would purchase methamphetamine from Blanco. This conversation was not observed or overheard by any DEA agent and was not recorded.

Rivera testified that he then returned to Phoenix and that Blanco called him there on September 24. Rivera had told DEA agents that Blanco would call him in Phoenix, and that Rivera had arranged to be in the DEA's Phoenix office to receive the call so that it could be recorded. However, Rivera left the DEA office before any call came in. Rivera testified that Blanco called him after he left the DEA office, and that during that call he and Blanco made further arrangements about the sale of methamphetamine. Telephone records were introduced at trial indicating that a call was made from Blanco's phone to Rivera's phone in Phoenix at approximately 6:09 p.m. on September 24. This call was not monitored by DEA agents and was not recorded.

Rivera thereafter returned to Winnemucca. On September 28, Rivera met Blanco in the garage of Blanco's house in Winnemucca. Rivera was wearing a wire, and that conversation was recorded. The conversation was entirely in Spanish, and Rivera did most of the talking. At one point during the conversation, Alvarez came into the garage from the yard, where he had been working, to get something to drink. During the course of the conversation, Rivera appears to have arranged with Blanco for a sale later that day of 3/4 of a pound of methamphetamine for $3,750. The recording of the conversation was played for the jury, and a Spanish transcript and English translation were introduced into evidence.

DEA agents set up surveillance cameras and recording devices in the room of the Winnemucca Holiday Inn where the exchange of drugs and money was to take place. Rivera and DEA Agent Don Barnard were in the room when Rivera made and received several telephone calls. All of the calls were conducted in Spanish. Agent Barnard listened to one or more of the calls by putting his ear close to the receiver. Agent Barnard testified, however, that he was "by no means fluent" in Spanish. He had never met Blanco and would not have been able to identify his voice. None of the calls was recorded. No telephone records were introduced at trial indicating whose telephones were used to make these calls. As a result of the calls, the location for the exchange was changed to a room in the local Economy Inn.

Surveillance was difficult at the Economy Inn. Because of the last-minute change of location, it was impossible to set up cameras or recording devices in the room designated for the sale. Further, because of the Economy Inn's layout, none of the surveilling DEA agents was able to see the room. Rivera drove to the Economy Inn in his own car. The car had not been searched by DEA agents since September 21, seven days earlier. Rivera got out of his car, disappeared into the Economy Inn, stayed for a short time, and returned to his car. He appeared to take from the car $3,750 in bills whose serial numbers had previously been recorded by DEA agents. He reentered the Economy Inn, and re-emerged a short time later without the money and with about 3/4 of a pound of methamphetamine.

Rivera was wearing a wire while he was at the Economy Inn, but the quality of the recording was so poor that the district court refused to allow the recording or a transcript into evidence. Rivera testified that Alvarez, not Blanco, had delivered the methamphetamine to the Economy Inn. DEA Agent Jerry Craig testified that he had been positioned outside the Economy Inn and that he "believed" he saw Blanco drive past in a car. At this point in the investigation, Agent Craig had only seen a photograph of Blanco. Agent Craig made no written report of this sighting. Rivera testified that Alvarez received a call while they were together in the room at the Economy Inn, and Alvarez told him that the caller was Blanco. Telephone records were introduced at trial indicating that a call was made from Blanco's phone to the Economy Inn at about 3:39 p.m. on that day. None of the surveilling DEA agents saw anyone other than Rivera enter or leave the Economy Inn.

On October 16, wearing a wire, Rivera went to Blanco's house in Winnemucca. He encountered Alvarez, who told him that they had discovered that he worked with the "narcs," and then told him to leave. The recording was played for the jury, and a Spanish transcript and English translation were introduced into evidence. Because of Alvarez's statements to Rivera, the DEA agents concluded that their investigation had been compromised. They arrested Blanco and Alvarez later that day.

When Alvarez was arrested, he had $80 in his pocket. After Blanco's arrest, the DEA agents obtained a warrant and searched Blanco's house. They found some money, but they found no drugs, no drug paraphernalia, no scales, no ledgers, and no large amounts of money that would have indicated that Blanco conducted a methamphetamine sales operation in his house. No evidence was introduced at trial indicating that the DEA agents compared the serial numbers of the money found on Alvarez and in Blanco's house with the serial numbers of the $3,750 given to Rivera.

Blanco and Alvarez were tried together. Their defense was that Rivera was himself a drug dealer, that Rivera had framed them, that Blanco was not a drug dealer, and that Alvarez was not Blanco's go-between. As is evident from the foregoing narrative, the government's case depended heavily on the jury's believing Rivera's testimony. Conversely, Blanco's defense depended heavily on the jury's believing that Rivera was a liar. The jury returned a verdict of guilty for both Blanco and Alvarez.

Blanco makes two primary arguments on appeal. First, he contends that the government failed to comply with its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Second, he contends that the district court gave an erroneous jury instruction. We consider these arguments in turn.

We review de novo an asserted Brady/Giglio violation. United States v. Danielson, 325 F.3d 1054, 1074(9th Cir.2003). We review for abuse of discretion a district court's decision to give a jury instruction. United States v. Perkins, 937 F.2d 1397, 1401 (9th Cir.1991).

II. Brady v. Maryland and Giglio v. United States

The government has an obligation under Brady v. Maryland to provide exculpatory evidence to a criminal defendant. To establish a Brady violation, the evidence must be (1) favorable to the accused because it is either exculpatory or impeachment material; (2) suppressed by the government, either willfully or inadvertently; and (3) material or prejudicial. Benn v. Lambert, ...