U.S. v. Carrasco

• Citation: 537 F.2d 372
• Decision Date: 04 June 1976
• Docket Number: D,Nos. 75-3223,RUIZ-ONTIVERO,75-3224,s. 75-3223
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Quiroz CARRASCO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lucindoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 372

537 F.2d 372

UNITED STATES of America, Plaintiff-Appellee, v. Frank Quiroz CARRASCO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lucindo RUIZ-ONTIVEROS, Defendant-Appellant.

Nos. 75-3223, 75-3224.

United States Court of Appeals,

Ninth Circuit.

June 4, 1976.

Rehearing Denied Aug. 20, 1976.

Frederic F. Kay, Federal Public Defender (argued), Tucson, Ariz., for appellant in No. 75-3223.

Robert L. Murray (argued), Tucson, Ariz., for appellant in No. 75-3224.

Stephan M. Dichter, Asst. U. S. Atty. (argued), Tucson, Ariz., for appellee.

OPINION

Before DUNIWAY and TRASK, Circuit Judges, and BATTIN, ^* District Judge.

DUNIWAY, Circuit Judge:

A jury found Carrasco and Ruiz-Ontiveros guilty of conspiring to violate 21 U.S.C. § 841(a)(1) in violation of 18 U.S.C. § 371 and of possessing a controlled substance (heroin) with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 846. It also found Carrasco guilty of using an interstate communication facility, a telephone, in furtherance of this scheme in violation of 21 U.S.C. § 843(b). Both appeal from the judgment of conviction, citing as error the district court's refusal to strike the testimony of a key witness, Maria Gamez, whose written statement given to a Drug Enforcement Administration agent had been destroyed by him in violation of the Jencks Act, 18 U.S.C. § 3500, and its failure to grant a mistrial because of inflammatory remarks made by the prosecutor during his summation. We reverse.

The Facts

This case involves a conspiracy to sell 432 grams of heroin. The prosecution produced two witnesses, Maria Gamez, a paid government informant, and Ernest Lowe, a government agent. We summarize what each witness said.

Maria Gamez: On or about June 12, 1975, according to Gamez's direct testimony, defendant Carrasco contacted her and asked if she could locate a buyer for some heroin that he wanted to sell. Gamez, who had worked previously for the Drug Enforcement Administration, said that she thought she could.

On June 18 Carrasco delivered to Gamez a sample of the heroin which she passed on to the DEA. By the 20th the DEA and the conspirators were ready to proceed. The day began with Carrasco picking up Gamez and driving her to a house belonging to one Enrique Verde, another conspirator, where the transfer was to take place. Shortly after Gamez arrived, a woman identified as Frances Grijalva left, returning 10 to 15 minutes later carrying a large box and accompanied by two men, Enrique Verde and defendant Ruiz-Ontiveros. Inside the house, those three opened the box. It contained two large tin cans from which they removed small packages of a substance the defendants stipulated was heroin. At about that time Gamez talked with Ruiz-Ontiveros who told her that he had smuggled the heroin into the United States from Mexico and assured her that it was pure.

Having ascertained that the substance was indeed heroin, Gamez phoned the DEA and left a message to that effect. She and Carrasco then left the Verde house to rendezvous with the prospective purchaser. There was at least one additional phone call placed by Gamez during which Carrasco and DEA Agent Dennis Gonzales arranged for Agent Ernest Lowe to meet Carrasco in a parking lot adjacent to the Verde house.

Ernest Lowe: Agent Lowe testified that Carrasco and Gamez walked with him from the parking lot to the Verde house where he was introduced to the other participants. Two of them, Grijalva and Verde, left the living room to get the heroin, which was being kept elsewhere in the house. While they were gone, Lowe had a brief conversation with Ruiz-Ontiveros who again asserted that he had smuggled the heroin from Mexico and that it was undiluted. After Verde and Grijalva returned, they and Carrasco began weighing the heroin, at which point the DEA agents stationed outside moved in and arrested the conspirators.

The Defense Theories

The two defendants relied upon different but not inconsistent theories to avoid conviction. Ruiz-Ontiveros maintained that he was an innocent bystander who had come to the Verde house in order to purchase a color television and that he knew nothing about the heroin. Carrasco did not contest his involvement with the heroin, but claimed that Gamez had entrapped him.

Ruiz-Ontiveros testified first. He said that he regularly travelled to Tucson in order to buy American goods which he sold in Mexico. On this particular sojourn he had purchased automotive parts and was looking for a color television, supposedly for sale at $45, when he was arrested. To substantiate his story, he produced three receipts for automotive parts purchased in the Tucson area. He admitted talking with Agent Lowe, but offered a different version of the conversation. He said that Lowe had asked him if he could smuggle some heroin for him from Mexico to Arizona. At first he declined, but later stated that he would if the price were right. In explaining this damning admission on re-direct, Ruiz-Ontiveros stated that he was poor and that Lowe had been extremely persuasive.

Carrasco, in his defense, produced two witnesses whose testimony contradicted Gamez's. The first, Jesus Ybarra, stated that he had introduced Carrasco to Gamez at the latter's home and not at a public park as she had testified. The second, Frank Campuzano, a lifelong friend of Carrasco's, testified that Gamez had once passed Carrasco's house, gestured to him to come to her, and had conversed with him. Gamez had earlier denied the incident had ever occurred. The defense then rested without Carrasco's taking the stand.

The existence and destruction of a statement possibly covered by the Jencks Act first came to light while Ruiz-Ontiveros' counsel was cross-examining Gamez. He was attempting to portray his client as an innocent bystander by establishing his silence during the time the heroin sale was taking place. This was thwarted when Gamez testified that Ruiz-Ontiveros had then told her that he had smuggled the contraband from Mexico. Counsel immediately sought to impeach Gamez by pointing out that she had never mentioned this conversation in a statement made to DEA agents two weeks after the arrests. She replied that she had included it in a document she labelled her "original report." Further questioning revealed that this original report was a diary in which Gamez had made daily entries during the week in June in which the heroin sale had been arranged. Other testimony by DEA Agent Gonzales revealed that the original report may have contained as many as 10 handwritten, loose-leaf sized pages, each of which Gamez had signed or initialled.

Gonzales stated he had shredded the diary in accordance with normal DEA procedures once he had incorporated its substance into his final report. He asserted that, to the best of his recollection, his report did not omit any substantive material which had been included in the original diary.

Both defendants made timely objections, asking the district court either to declare a mistrial or to strike Gamez's testimony. Both requests were denied. In asking us to reverse their convictions, defendants must show: (1) that the diary was a statement as that term is defined by the Jencks Act, 18 U.S.C. § 3500(e); (2) that its destruction in good faith does not excuse its production; and (3) that the district court's failure to order production or to strike Gamez's testimony was not harmless.

I. Are the witness' notes a Jencks Act statement?

The government's position is that Gamez's diary was merely notes used for recollection, not "a written statement made by said witness and signed or otherwise adopted or approved . . . ." 18 U.S.C. § 3500(e)(1). We disagree. Whatever the diary was before Gamez gave it to Gonzales, it became a statement, as that word is commonly used, once she gave it to him. A statement, unlike notes or a diary, seeks to transmit information from the declarant to the reader. By giving her diary to Gonzales, Gamez transformed what had been a diary not covered by the Jencks Act into a statement which was. Cf. Goldberg v. United States, --- U.S. ---, 96 S.Ct. 1338, at 1344, 47 L.Ed.2d 603 (1976) and Mr. Justice Stevens' concurring opinion, id.; Rosenberg v. United States, 1959, 360 U.S. 367, 369, 79 S.Ct. 1231, 3 L.Ed.2d 1304.

In fact the diary was more clearly a Jencks Act statement than the Gonzales report that the government offered in its stead. As Mr. Justice Frankfurter observed in Palermo v. United States, 1959, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287:

It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available to the defense for purposes of impeachment. It was important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. Distortion can be a product of selectivity as well as the conscious or inadvertent infusion of the recorder's opinions or impressions. It is clear from the continuous congressional emphasis on "substantially verbatim recital," and "continuous, narrative statements made by the witness recorded verbatim or nearly so . . . ," that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation.

Id. at 352, 79 S.Ct. at 1224 (footnote omitted)

His warning is heeded far more faithfully by the production of a signed document in the witness' own hand than by the use of a second-hand report prepared from it by a government agent.

II. Good Faith Destruction.

Having determined that Gamez's diary was a Jencks Act statement, we consider whether its destruction relieved the government of the duties and sanctions prescribed by the Act. We conclude that it did not.

The...