705 F.3d 1134 (9th Cir. 2013), 11-10067, United States v. Doe

Docket Nº:11-10067.
Citation:705 F.3d 1134
Opinion Judge:WILLIAM E. SMITH, District Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
Attorney:Carolyn M. Wiggin, Assistant Federal Defender, Sacramento, CA, for Defendant-Appellant. Kathleen A. Servatius, Assistant U.S. Attorney, Fresno, CA, for Plaintiff-Appellee.
Judge Panel:Before: FERDINAND F. FERNANDEZ and MARSHA S. BERZON, Circuit Judges, and WILLIAM E. SMITH, District Judge.[*]
Case Date:January 31, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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705 F.3d 1134 (9th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,


John DOE, Defendant-Appellant.

No. 11-10067.

United States Court of Appeals, Ninth Circuit.

January 31, 2013

Argued and Submitted Nov. 7, 2012.

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Carolyn M. Wiggin, Assistant Federal Defender, Sacramento, CA, for Defendant-Appellant.

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Kathleen A. Servatius, Assistant U.S. Attorney, Fresno, CA, for Plaintiff-Appellee.

On Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:08-cr-00254-LJO-1.

Before: FERDINAND F. FERNANDEZ and MARSHA S. BERZON, Circuit Judges, and WILLIAM E. SMITH, District Judge.[*]


WILLIAM E. SMITH, District Judge:

Defendant-Appellant John Doe 1 appeals his conviction, following a jury trial, of conspiracy to distribute methamphetamine, conspiracy to distribute cocaine, possession of methamphetamine with the intent to distribute, and possession of cocaine with the intent to distribute. On appeal, Doe raises a host of alleged errors which fall into four general categories: errors relating to Doe's public authority defense, Sixth Amendment violations, discovery violations, and procedural errors at Doe's sentencing.

Regarding the alleged public authority errors, we hold that the district court was correct in ruling that Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006), applies to Doe's public authority defense. Thus, Doe had the burden of establishing the defense by a preponderance of the evidence, and it was not error for the district court to refuse to instruct the jury otherwise. While we find that the district court gave an incomplete and therefore erroneous jury instruction on public authority when it neglected to instruct the jury that Doe bore this burden, Doe never raised the issue before the district court, and the error does not rise to the level of plain error. Accordingly, we affirm the district court with respect to all alleged errors regarding Doe's assertion of the public authority defense.

Doe's second claim, which alleges a Sixth Amendment violation, essentially raises the same argument as the alleged public authority defense errors, just dressed up in different clothes. For the same reasons as with regard to the public authority defense, we hold that the district court did not deprive Doe of his Sixth Amendment right to counsel when it prevented him from arguing an incorrect burden of proof to the jury during his closing argument.

The third category of errors claims discovery and Brady violations. We hold that the district court abused its discretion in denying Discovery Requests Five and Six as overbroad and immaterial; however, the record is unclear as to what, if anything, would have been produced if those requests had been granted and what effect, if any, the production would have had on the outcome of Doe's trial. Accordingly, we must vacate Doe's conviction and remand to the district court for further proceedings (either an evidentiary hearing or in camera review) to further address these discovery and Brady issues.

The fourth and final category of errors allege procedural violations at sentencing. We agree with Doe that his sentencing hearing contained several procedural violations which cast doubt on the reasonableness of his ultimate sentence. Consequently,

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assuming the evidentiary hearings discussed above result in the reinstatement of Doe's conviction, his sentence is vacated and he must be resentenced.



In early 2008, Doe, a resident of Mexico, contacted the Federal Bureau of Investigation (FBI) regarding information on drug-related activity. He first met with an agent on April 15, 2008. At this meeting, Doe described a cell, as well as individuals, who were involved in trafficking narcotics between Mexico and the United States. He provided telephone numbers and offered to give the agent the addresses and license plate numbers of these individuals. In exchange, Doe wanted the FBI to allow him and his family to immigrate to the United States and either be given new identities or be placed in witness protection. The agent explained that Doe was " putting the cart before the horse," and while such requests were sometimes granted, this occurred only after long and successful records of cooperation with the FBI that resulted in prosecutions and convictions.

Approximately one month after this initial meeting, the two met again in a San Diego parking lot. At this meeting, Doe repeated his request to come to the United States, but the agent represented that Doe had not yet provided the information requested in their initial meeting.2 Over the next few months, Doe and the agent remained in contact, and the agent began the process within the agency of qualifying Doe as a potential confidential informant. At no point did the agent authorize Doe to engage in illegal activity either on his own behalf or on the FBI's behalf.

Meanwhile, a detective of the Fresno Police Department was conducting a drug-trafficking investigation into an individual known as " Colima." As part of this investigation, the detective and two informants were referred by Colima to Doe. Doe told one of the informants that he would " be able to get what you guys need." On July 21, 2008, the detective and the informants spoke on the telephone with Doe and arranged a sale of twenty kilograms of cocaine; Doe advised them not to use any names in future communications. The next day, the detective met with Doe but no drug transactions occurred. Later that afternoon, Doe called one of the informants, telling him that he (Doe) could not get the cocaine but he knew somebody in Dinuba (the " Dinuba Contact" ) who could get ten to twelve pounds of crystal methamphetamine if the informant was interested. The informant indicated his interest, so Doe placed the informant in contact with the Dinuba Contact. Once the methamphetamine deal was completed on July 25, 2008, the Dinuba Contact was arrested and twelve pounds of methamphetamine seized.

Three days later, on July 28, 2008, Doe again spoke with one of the informants and told the informant that he could now provide the cocaine in two ten-kilogram shipments. The informant and the detective arranged for a car exchange with Doe to complete the cocaine sale. When the prearranged meeting time arrived, Doe, the detective, the informants, and other associates of Doe were present. For reasons that are unclear, the car exchange did not take place. Instead, one of the informants and one of Doe's associates traveled to an auto body shop where the informant saw the cocaine. The two men then returned

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to the original meeting place, and Doe and his associates were arrested. A subsequent search of the body shop uncovered five kilograms of cocaine.

Immediately following his arrest, Doe told the detective that he was an informant working with the FBI. The detective asked if Doe was working with the FBI on this specific case, and Doe said no. The detective nevertheless followed up on Doe's statement and contacted the FBI agent, who told the detective that Doe was being developed as a confidential informant but was not currently working for them. The detective proceeded to complete the arrest and, on August 7, 2008, the government filed the four-count indictment against Doe.


In the lead-up to trial, Doe filed numerous discovery requests and motions. The motion at issue in this appeal, filed on March 20, 2009, asked the district court to order the government to produce Rule 16 discovery and Brady v. Maryland evidence. Specifically, Doe requested:

5. Any and all records or reports which document any and all telephone numbers, license plate numbers, or individuals, provided or identified by [Doe] to FBI [agents], as being associated, involved or related to criminal activity; [" Request Five" ]

6. Any and all records, reports or calendars which document the date of any meeting or communication, or planned meeting or communication between [Doe] and FBI [agents]; [" Request Six" ]

Doe argued that Request Five was necessary to show that he was predisposed to assist law enforcement and not to commit the alleged acts; Request Six, meanwhile, was needed to prepare and put forth an entrapment defense. The district court denied these requests as overbroad, ruling that the " Court cannot determine whether the requests do or do not fall within the express words of Rule 16(a)(1)(E)(i)."

Prior to trial, Doe informed the court that he would be presenting a public authority defense and requested the following jury instruction:

If a defendant engages in conduct that violates a criminal statute, in reliance on a statement or act of a government official, with the reasonable belief that the defendant is acting as an authorized government agent to assist in law enforcement activity, then the defendant may not be convicted of violating the criminal statute, because the requisite intent is lacking. The government must prove beyond a reasonable doubt that the defendant did not have a reasonable belief that he was acting as an authorized government agent to assist in law enforcement activity at the time of the offense charged in the indictment.

The government objected to this instruction, arguing that the Supreme Court's recent holding in Dixon v. United States required Doe to prove his defense by a preponderance of the evidence. The district court agreed, ruling that Dixon applied because the public authority defense would not negate any of the elements of the charged crimes.

Trial began on October 26, 2009. The theme of Doe's defense was essentially " yes, I helped arrange these sales, but I did so only to gain information to give to the FBI...

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