Ochoa v. Sublett
| Decision Date | 15 March 1988 |
| Docket Number | No. 87-2087,87-2087 |
| Citation | 846 F.2d 1383 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Raymond A. OCHOA, Petitioner-Appellant, v. Sam SUBLETT, etc., et al., Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before KOELSCH, SCHROEDER and FLETCHER, Circuit Judges.
Appellant petitions for habeas corpus relief from his conviction for theft and trafficking in stolen property. Appellant's convictions were the result of a sting operation in which undercover police officers rented a house, equipped it with video recording equipment, and proceeded to buy stolen property.
At trial, appellant asserted an entrapment defense. Arizona law requires that a defendant admit all the elements of an offense charged before claiming entrapment. State v. Nilsen, 134 Ariz. 431, 657 P.2d 419, 420 (1983). However, appellant did not testify, present any evidence, or admit that he had committed the elements of the offense. After his conviction and exhaustion of state court remedies, appellant brought this habeas corpus petition.
The government urges a threshold jurisdictional bar to our consideration of the appellant's appeal on the ground that the appellant did not make objections to the magistrate's report. However, this circuit has not adopted a rule making such objections a prerequisite to appeal under Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986). We have held that failure to file objections waives only factual issues on appeal. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). Because Ochoa is not appealing any findings of fact, his appeal is not barred. United States v. Bernhardt, No. 85-1250, slip op. at 4366 (9th Cir. April 5, 1988) (amended opinion).
Appellant first claims he was denied a fair trial because the prosecution did not provide the name of a confidential informant. Generally, the government is entitled to withhold from disclosure the identity of confidential informants. Roviaro v. United States, 353 U.S. 53, 59 (1957). However, if the disclosure of the informant's identity or the contents of his statements is relevant and helpful to the defense, the district court may, in its discretion, order the disclosure. United States v. Tham, 665 F.2d 855, 859 (9th Cir.1981), cert. denied, 456 U.S. 944 (1982). The defendant has the burden of showing the need for disclosure. Id. In this case, the appellant has made no showing of how the disclosure would have assisted his defense since he has not indicated any basis for an entrapment defense; thus, he has not met his burden.
Second, appellant contends that he was not allowed time to locate a witness. The prosecution subpoenaed a police officer as a witness but released the officer during the course of the trial. Appellant then sought to call the officer as a witness; despite a recess of several hours, the appellant was not able to locate the officer. Appellant argues that his rights under the Confrontation Clause were violated because the court would not delay the trial further. However, when a defendant is denied access to a witness by the government, he must show that the denial was relevant and material to his defense; the absence of the witness must have prevented appellant's fair trial. United States v. Valenzuela-Bernal, 458 U.S. 858, 871-72 (1982). In this case, the videotaped evidence of petitioner offering to sell stolen vehicles to the police was overwhelming evidence of his guilt. Therefore, the absence of one of the officers involved was not vital to the appellant's defense.
Third, appellant contends that the trial court erred in admitting statements made by a co-defendant implicating him in other crimes. The magistrate found that the co-defendant's statements were properly admitted as statements of a co-conspirator pursuant to Arizona Rules of Evidence, Rule 801(d)(2)(E). See Fed.R.Evid. Rule 801(d)(2)(E). Habeas corpus review of evidence rulings is only allowed if the rulings made the trial fundamentally unfair. Batchelor v. Cupp, 693 F.2d 859, 865 (9th Cir.1982), cert. denied, 463 U.S. 1212 (1983). Both the co-defendant and appellant were present during taped discussions of the sale of stolen vehicles; it is in...
To continue reading
Request your trial