U.S. v. Monroe

• Citation: 943 F.2d 1007
• Decision Date: 21 August 1991
• Docket Number: No. 89-50597,89-50597
• Parties: 33 Fed. R. Evid. Serv. 1431 UNITED STATES of America, Plaintiff-Appellee, v. Walker Bennett MONROE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1007

943 F.2d 1007

33 Fed. R. Evid. Serv. 1431

UNITED STATES of America, Plaintiff-Appellee, v. Walker Bennett MONROE, Defendant-Appellant.

No. 89-50597.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 14, 1991.

Decided Aug. 21, 1991.

John J. Cleary, Cleary & Sevilla, San Diego, Cal., for defendant-appellant.

Edward P. Allard, III, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before FERGUSON, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Walker Bennett Monroe appeals his conviction following a jury trial on a variety of charges stemming from his participation in a conspiracy to import a multi-ton shipment of marijuana. ¹ The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

I

On October 28, 1988, Monroe and Michael McCabe were charged by a federal grand jury in the Southern District of California in a nine-count indictment stemming from their involvement in a conspiracy to import marijuana from Thailand to the United States.

A

The conspiracy began in mid-1987, when McCabe and Daniel Bender first discussed plans to smuggle as much as fifteen tons of marijuana from Thailand to the United States by sailboat. They were later joined by David Cunnison. Throughout the fall and winter, the three men continued to lay plans for this smuggling venture.

Unfortunately for his coconspirators, Bender was arrested by federal agents on unrelated drug charges in February 1988, and agreed to cooperate with the government. From that point on in the conspiracy he acted as a confidential government informant. Much of the evidence at Monroe's trial came from Bender's direct testimony and tapes of his monitored conversations with Monroe and McCabe.

Monroe was brought into the conspiracy in March 1988 to handle the shipping of the marijuana, since he purportedly had access to a ship. He soon reported that the ship was unavailable because it was under surveillance by law enforcement agencies. Two alternate plans were then discussed. Monroe proposed to ship the marijuana in sea containers, first to Mexico, and then by truck to the United States. He was to put up the money for the container shipment of marijuana and would assume responsibility for arranging safe passage through Mexico, where he claimed to have substantial influence with government officials. He would then arrange to have the marijuana shipped by truck to the United States. Monroe was said to be "gung ho" about the container venture and pressed McCabe and Bender to go along with it. Although McCabe and Bender wanted to ship the marijuana by sailboats directly to the United States, because there was enough marijuana for both plans, they agreed to the container venture while also pursuing plans to smuggle the marijuana by sailboat.

B

In late March 1988, McCabe and Bender had a number of discussions about how they would transfer the funds needed to buy the marijuana. At the government's behest, Bender volunteered the services of a "friend" who was in the money exchange business. The "friend," of course, was the Drug Enforcement Administration (DEA). On March 31, McCabe and Bender agreed to have Bender's "friend" "send" $50,000 from San Diego to Hong Kong as a test-run. On April 11, McCabe gave Bender $50,000 cash and made arrangements to pick up the money in Hong Kong a few days later from "Tony," Bender's Asian contact, who was in fact DEA Special Agent Morgan. Bender gave the $50,000 to the DEA.

On April 18, McCabe and Agent Morgan met in Hong Kong and withdrew $50,000 from a Hong Kong bank. On April 25, McCabe and Morgan again met in Hong Kong to discuss the pending transfer of $700,000 which Monroe was to give Bender in San Diego. Morgan told McCabe that the $50,000 had been wire transferred and that McCabe and the other coconspirators would be charged a commission for the transfer. McCabe agreed that the $700,000 would also be wired transferred to Morgan, who would hold it in his Hong Kong bank until McCabe needed it. On May 9 in San Diego, Monroe gave Bender two suitcases containing approximately $695,000 in small bills to be transferred to McCabe. Bender turned the money over to the DEA. On May 27, McCabe met with Morgan in Hong Kong and withdrew $50,000 from McCabe's bank. At some point after May 31, Morgan was ordered not to release any more money to McCabe.

C

McCabe remained in the Far East until late June, making arrangements to purchase the marijuana. Monroe, meanwhile, had been arranging for its transportation through Mexico.

In early May, Monroe and Bender met to discuss the progress of the conspiracy. Their conversation was monitored by government agents. Monroe told Bender that plans were proceeding to smuggle marijuana both by container and by sailboat. Under his Mexican plan, the marijuana container would be off-loaded in Mexico and trucked directly to the United States, where an associate of his in Indiana would distribute it. Monroe claimed to have connections that would assure its safe passage through Mexican and United States customs. The Indiana distribution plans came as a surprise to Bender, who had expected that the marijuana would be shipped directly to Southern California. It was at that meeting that Monroe gave Bender the $695,000 to be sent to McCabe in Hong Kong. He also stated that he would be sending to McCabe the addresses in Mexico where the containers should be sent.

On June 29, 1988, Bender telephoned McCabe in Hong Kong. This conversation was also monitored. McCabe told Bender, "The marijuana made it from the field to a secure place where it is now being stored, waiting to be put on the container." He also indicated that once he received the rest of Monroe's money from Morgan he would get the container "on the water right away." In a conversation monitored by the government on July 8, 1988, McCabe told Bender that "everything was fine" and "moving right along" with the container venture. McCabe and Bender met on July 13, 1988. Their conversation was again monitored. McCabe told Bender that Monroe was having difficulty with his original plan to ship the marijuana to Mazatlan, Mexico because his customs contact was not available, but that he was working on an alternate plan. He also indicated that Monroe had convinced his Mexican connections to invest in a second container. McCabe stated that he was planning to go back to Hong Kong in the near future and that except for the details of where the containers would be sent, the plan was otherwise ready to be implemented.

During the rest of July and August, there was no activity. McCabe sought Bender's help in contacting Morgan, but Bender, following DEA instructions, kept putting him off. McCabe and Monroe were arrested on September 8, 1988.

D

After their arraignment, both defendants appeared before Judge Brewster, who held a pretrial hearing on April 14, 1989. On April 18, Monroe's case was transferred to Judge Keep for jury trial. The trial lasted twelve days and concluded in a guilty verdict on all eight counts. Monroe received a sentence of approximately fourteen and one-half years.

McCabe negotiated a plea agreement with the government. Under the terms of that agreement he was sentenced by Judge Brewster for approximately three years for unlawful use of a communication facility, and was given a suspended sentence of seven years for conspiracy to import marijuana.

Monroe timely appealed.

II

Two of Monroe's allegations of error involve Bender's testimony.

A

Pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the government provided Monroe with investigative reports involving illegal activities Bender had engaged in and for which he had been granted immunity from prosecution. The government withheld, however, the names of certain confidential informants identified in the reports. During cross-examination, Monroe sought to impeach Bender with these reports. He then moved to compel the government to disclose the names of the confidential informants so that they could be called during his case-in-chief. He sought to offer their testimony on the following grounds: (1) as prior inconsistent statements to impeach; (2) as evidence of bias; and (3) as negative character witnesses on the issue of Bender's character for truthfulness and veracity. The district court denied his motion, finding the testimony inadmissible and cumulative.

Monroe argues that the denial of his motion was a violation of his rights under Brady and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). ² We affirm the district court's ruling.

In general, a district court's ruling on the prosecution's duty to produce evidence under Brady is reviewed de novo. See, e.g., United States v. Pisello, 877 F.2d 762, 764 (9th Cir.1989); United States v. Lehman, 792 F.2d 899, 901 (9th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986). When, however, a district court rules on whether a defendant should have access to particular information in a government document that has been produced pursuant to Brady, we review for clear error. See United States v. Strifler, 851 F.2d 1197, 1201-02 (9th Cir.1988), cert. denied, 489 U.S. 1032, 109 S.Ct. 1170, 103 L.Ed.2d 228 (1989). ³

The district court ruled that Bender's prior inconsistent statements could not be introduced for impeachment purposes since they had not been given under oath pursuant to Fed.R.Evid. 801(d)(1)(A). R.T. 5/1/89 at 13; R.T. 5/2/89 (a.m.) at 2-3. This ruling was clearly erroneous. " 'A basic rule of evidence provides that prior inconsistent statements may be used to impeach the credibility of a witness.' " United States v. McLaughlin, 663 F.2d 949, 952 (9th Cir.1981) (quoting United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 2136, 45...