U.S. v. Echeverry

• Decision Date: 05 June 1985
• Docket Number: No. 84-3066,84-3066
• Citation: 759 F.2d 1451
• Parties: 18 Fed. R. Evid. Serv. 62 UNITED STATES of America, Plaintiff/Appellee, v. Claret ECHEVERRY, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1451

759 F.2d 1451

18 Fed. R. Evid. Serv. 62

UNITED STATES of America, Plaintiff/Appellee, v. Claret ECHEVERRY, Defendant/Appellant.

No. 84-3066.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 5, 1985.

Decided May 10, 1985.

As Amended June 5, 1985.

David D. Marshall, Bill Redkey, Asst. U.S. Attys., Seattle, Wash., for plaintiff/appellee.

Daniel H. Smith, Seattle, Wash., for defendant/appellant.

Appeal from the United States District Court for the Western District of Washington.

Before CHOY, ANDERSON and TANG, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Claret Echeverry appeals his conviction of conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846; aiding and abetting, in violation of 21 U.S.C. Sec. 841; And use of a communication facility to distribute cocaine, in violation of 21 U.S.C. Sec. 843. We affirm.

I. BACKGROUND

Appellant Echeverry was indicted, tried, and convicted on charges stemming from a Drug Enforcement Agency (DEA) undercover operation which began in May, 1980. That conviction was reversed on appeal. United States v. Echeverry, 698 F.2d 375 (9th Cir.1983).

Echeverry was subsequently reindicted on new charges stemming from the original DEA investigation. The jury trial which followed resulted in the conviction challenged in the instant appeal.

The evidence presented at trial clearly established that Echeverry was present at the events charged in the indictment: the negotiations between DEA Special Agent James White, Paul (Efran) Isaza, and Pablo Ramirez in December, 1980, and Agent White's purchase of cocaine from Tito Marmolejo-Schuartz in June, 1981. Echeverry's defense was that his participation in the transactions: (a) was insufficient to make him a conspirator; (b) resulted from government inducement rather than his own predisposition; and (c) that he was particularly susceptible to inducement due to the effects of prescription medication, severe medical and emotional trauma, and financial distress.

II. DISCUSSION

Appellant raises three issues on appeal. He argues that the district court's jury instruction regarding the effect of prescription medication unconstitutionally shifted the burden of proof. Echeverry also contends that the trial court erred in failing to strike the testimony of DEA Agent James White for the government's violation of the Jencks Act. Finally, he challenges the district court's admission of certain out-of-court statements of alleged coconspirators, alleging a violation of his Sixth Amendment right to confront the witnesses against him.

A. THE INTOXICATION INSTRUCTION

We follow the rule that, in a prosecution for a specific intent crime, intoxication (although voluntary) that precludes formation of the requisite intent may be established as a defense. United States v. Hartfield, 513 F.2d 254, 259 (9th Cir.1975). Where, as here, an accused has offered evidence to raise the issue, his capacity to form specific intent at the time of the offense becomes an element which, like all other elements of the crime, must be proved by the government beyond a reasonable doubt.

At trial, appellant Echeverry raised the defense of intoxication. He offered substantial evidence concerning the numerous drugs which he had been prescribed to support this defense. The jury instruction regarding intoxication was as follows:

Defendant contends that he was taking drugs which deprived him of the mental capability of forming and having the specific intent to commit the crimes with which he is charged.

Being under the influence of a drug, even one taken for medical purposes, provides a legal excuse for the commission of a crime only if the effect of the drug makes it impossible for the accused person to have the specific intent to commit the crime with which he is charged.

Evidence that defendant acted while under the influence of a drug or drugs may be considered by you together with all the other evidence in determining whether or not he did in fact have the specific intent to commit each crime with which he is charged.

If, after considering all the evidence, you have a reasonable doubt as to whether, because of the influence of a drug or drugs, defendant Echeverry had the specific intent to commit a particular crime with which he is charged, then you must acquit him of that crime.

Echeverry argues that this instruction sets forth an erroneous legal standard and impermissibly shifts the burden of proof. We disagree.

A defendant is entitled to an instruction concerning his theory of the case if it is supported by law and has some foundation in the evidence. United States v. Winn, 577 F.2d 86, 90 (9th Cir.1978). So long as the instructions fairly and adequately cover the issues presented, the judge's formulation of those instructions or choice of language is a matter of discretion. United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir.1982).

In deciding the adequacy of the trial court's instructions, we consider the instructions as a whole. United States v. Smith, 735 F.2d 1196, 1198 (9th Cir.1984); accord United States v. Tille, 729 F.2d 615, 623 (9th Cir.1984). It is apparent from our review that the court's initial instructions properly indicated the government's burden of proving the defendant guilty beyond a reasonable doubt as to each element of the offense, including specific intent. In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Thus, the focus of our inquiry turns to the language of Instruction Number 18, the intoxication instruction.

The defendant in a criminal matter has an obligation to raise defenses in his own behalf. United States v. Hartfield, 513 F.2d at 254. Use of the phrase "defendant contends" aptly describes the manner in which the defendant raises those defenses. While we agree that there might be a better way to phrase it, we do not find this choice of language to be an abuse of discretion. Additionally, because the law places on a defendant the burden of producing "slight" evidence of drug intoxication before an instruction on the defense may be given, we find that the first sentence of Instruction 18 comports with the law without shifting the burden of proof.

We also affirm the district court's choice of language concerning intoxication as a legal excuse. The second paragraph adequately explains the proposition that proof of intoxication, in and of itself, does not excuse commission of a specific intent crime. See, e.g., United States v. Winn, 577 F.2d at 90. The challenged phrase, "makes it impossible ...," is another way of stating Echeverry's theory of the case: that is, the effect of his medication rendered him unable to form specific intent. The paragraph is a correct abstract statement of the law which the jury is free to apply depending upon the facts found and does not alter the government's burden of proof.

Reading the intoxication instruction as a whole, we find no impermissible shift of the burden of proof. The final paragraph of the instruction makes it clear that the burden of proving the requisite intent rests with the government. The language of that paragraph requires the jury to be certain, beyond a reasonable doubt, that Echeverry possessed the requisite specific intent to commit the crime before entering a conviction. ¹ This direction is in accord with prior instructions in the case.

B. JENCKS ACT MATERIALS

The Jencks Act provides, in relevant part:

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the defendant has testified.

18 U.S.C. Sec. 3500(b).

In the case at bar, a Jencks Act violation is alleged in the government's failure to produce a transcript of DEA Agent White's testimony before the second grand jury. The trial court, although apparently agreeing that the Jencks Act had been violated, refused to impose the requested sanctions.

A trial court has the discretion to refuse to impose sanctions for noncompliance with the Jencks Act. United States v. Finnegan, 568 F.2d 637, 642 (9th Cir.1977). Accord United States v. Parker, 549 F.2d 1217, 1224 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977); United States v. Polizzi, 500 F.2d 856, 893 (9th Cir.1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975). The decision to strike a witness's testimony for Jencks Act noncompliance will generally depend on (1) a consideration of the culpability of the government, and (2) the injury resulting to the defendants. United States v. Sterling, 742 F.2d 521, 524 (9th Cir.1984) (no abuse of discretion to decline imposition of sanction where other available materials enabled a vigorous cross-examination).

Following our reversal of his prior conviction, Echeverry was reindicted by a second grand jury. At this hearing, Agent White was permitted to read into evidence a transcript of his original grand jury testimony, a transcript disclosed prior to trial. It is the government's nondisclosure of a transcript of Agent White's testimony at the second inquest which is at issue here.

Short of innuendo concerning the fact that Agent White reread his original testimony for the second grand jury, no concrete injury is alleged. United States v. Well, 572 F.2d 1383, 1384 (9th Cir.1978) (defense need not show prejudice). Our review of the record reveals that the government's failure to disclose the second transcript was inadvertent and not in bad faith. We note that the government did endeavor to comply with the requirements of 18 U.S.C. Sec. 3500; other Jencks Act materials were produced prior to trial. More importantly, the transcript at issue is generally duplicative of information previously disclosed to defense counsel. Echeverry's counsel was, therefore, not...