U.S. v. Brumel-Alvarez

• Decision Date: 22 April 1993
• Docket Number: AYALA-JUSTINIAN,VARGAS-BRUU,89-50431,89-50479,89-50423,GIRON-ORTI,ROMAN-SALA,CARRANZA-PENICH,MENDEZ-DUENA,Nos. 89-50412,BRUMEL-ALVARE,D,89-50415,89-50426,89-50480,s. 89-50412
• Citation: 991 F.2d 1452
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector Manuelefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Efrenefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marioefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorgeefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rolando Antonioefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorgeefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pabloefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1452

991 F.2d 1452

125 A.L.R.Fed. 675

UNITED STATES of America, Plaintiff-Appellee, v. Hector Manuel BRUMEL-ALVAREZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Efren MENDEZ-DUENAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Mario VARGAS-BRUUN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jorge CARRANZA-PENICHE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rolando Antonio AYALA-JUSTINIANO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jorge ROMAN-SALAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Pablo GIRON-ORTIZ, Defendant-Appellant.

Nos. 89-50412, 89-50415, 89-50423, 89-50426, 89-50431,

89-50479, 89-50480.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1991.

Decided Sept. 29, 1992.

As Amended on Denial of Rehearing and Rehearing En Banc

April 22, 1993.

Michael L. Crowley, San Diego, CA, for defendant-appellant Brumel-Alvarez.

Barbara L. Davis, San Diego, CA, for defendant-appellant Mendez-Duenas.

Gerald T. McFadden, Solana Beach, CA, for defendant-appellant Vargas-Bruun.

Carolyn Chapman, San Diego, CA, for defendant-appellant Carranza-Peniche.

Cynthia G. Aaron and Ezekiel E. Cortez, Aaron & Cortez, San Diego, CA, for defendant-appellant Ayala-Justiniano.

Rene Sotorrio, Coconut Grove, FL, for defendant-appellant Roman-Salas.

Elizabeth A. Barranco, El Cajon, CA, for defendant-appellant Giron-Ortiz.

Stephen G. Nelson, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

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

Before: POOLE, KOZINSKI, and LEAVY, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING

The opinion filed on September 29, 1992, is amended as follows:

Judges Kozinski and Leavy have voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Poole has voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc, and no judge of the court requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35(b).

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

LEAVY, Circuit Judge:

This criminal action involved the government's contention that the defendants were engaged in an international high level drug trafficking conspiracy in Bolivia and Mexico. The conspiracy was uncovered as part of a "sting" operation of the Drug Enforcement Agency (DEA) and the U.S. Customs. The seven defendants, whose appeals are consolidated, ¹ are Mexican and Bolivian citizens who were arrested and charged by the United States Government with a host of conspiracies involving controlled substances ² and the use of a communications facility to facilitate the commission of a controlled substance offense. The superseding indictment that was handed down in the United States District Court for the Southern District of California contained twenty-one separate counts.

In opening remarks at the trial, the government stated:

For the next month or so, you are going to hear a story about a search, a search that is going to take us on a five-thousand mile journey, a search, a journey from the cliffs of La Jolla, to the jungles of Bolivia; and the search, ladies and gentlemen, is for one thing: cocaine.

....

This journey involves a plan that had one objective, one mission. That was to find the mother lode of cocaine in Bolivia, the source. This is a journey to the source, the source for the cocaine.

Reporter's Transcript (RT) II at 148-49.

Despite this statement, no drugs were ever recovered in Bolivia and none were introduced into evidence at trial. No one testified that any drugs were ever recovered in the possession of any of the defendants. Only one person tied the defendants to cocaine and cocaine laboratories discovered in the Bolivian jungle region known as the Beni. That person was a government informant by the name of David Wheeler. Wheeler was unescorted by any government undercover agent when he went to Bolivia.

Wheeler first came to the attention of the authorities in August of 1986 when he was arrested and charged in Oklahoma for possession of one kilogram of cocaine. Wheeler pleaded guilty. While incarcerated, Wheeler told the arresting agents that he was interested in cooperating with the government. He also wrote several letters soliciting contact with the government.

In January of 1987, as a result of Wheeler's solicitations, U.S. Customs Agent Joe Robles met with Wheeler and debriefed him. Wheeler claimed he could lead Customs to high level Mexican government officials who were trafficking drugs into the United States. Wheeler claimed, from his many years of illegal drug dealing in Mexico, to know either Mexican government officials or people who were connected with them. Wheeler was released on bond and allowed to make telephone contact with certain individuals in Mexico. Ultimately, this led to the government's sting operation and the arrest and trial of the defendants.

At trial, the government maintained that the Bolivian defendants, Ayala, Vargas-Bruun, and Roman-Salas, represented a Bolivian drug cartel that produced massive amounts of cocaine. RT II at 162. The government said it would prove that Giron, Brumel, and Carranza, the Mexican defendants, were necessary players in the drug operation, id., because they allegedly arranged for protection for the airplane that would carry the cocaine from Bolivia when it made a refueling stop in Mexico. The government stated it would prove that these defendants were policemen or members of the military in Mexico with high level connections. RT II at 163-64. The government also stated:

The government will prove that Hector Brumel and Jorge Carranza, because of their association and their position in Mexico, were able to ... provide the security [for the airplane][.] And the government will prove that Pablo Giron, Hector Brumel and Jorge Carranza ... associated themselves with, or secured the patronage of General Poblano Silva, who is responsible, at the time, for the military sector, similar to a state, south of Mexico City, the military sector or zone called Puebla.

The government will prove that Poblano Silva assigned to that association of people, a man named Lieutenant Colonel de la Vega. Number Two in command.

With the assurance of General Silva and Lieutenant Colonel de la Vega, ladies and gentlemen, Louis [the main undercover operative who was posing as a member of the Mafia] was going to get the protection he sought.

RT II at 164-65.

The trial lasted from January 5, 1989, until April 26, 1989. On May 25, 1989, the jury returned its verdict of guilty for all defendants on each count except one, which the government dismissed.

On appeal, the defendants argue that material information bearing on the credibility of David Wheeler was withheld from them in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C. § 3500. We reverse and remand for a new trial.

DISCUSSION

Standard of Review

We have not employed a single standard of review where there have been challenges to a conviction based on a Brady violation. At various times our review has been de novo. See 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); United States v. Kennedy, 890 F.2d 1056, 1058 (9th Cir.1989), cert. denied, 494 U.S. 1008, 110 S.Ct. 1308, 108 L.Ed.2d 484 (1990); United States v. Pisello, 877 F.2d 762, 764 (9th Cir.1989); accord United States v. Monroe, 943 F.2d 1007, 1012 (9th Cir.1991) ("In general, a district court's ruling on the prosecution's duty to produce evidence under Brady is reviewed de novo."). At other times we have reviewed 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), and explained that this standard is appropriate where some, but not all, of a document has been produced. United States v. Monroe, 943 F.2d 1007, 1012 (9th Cir.1991). Our opinion in Monroe also suggests that there might be occasions where review for an abuse of discretion would be appropriate. Id. at 1012 n. 3. We observe that other discovery-related decisions are reviewed under the abuse of discretion standard. See United States v. Boshell, 952 F.2d 1101, 1104 (9th Cir.1991) (denial of Jencks Act request); United States v. Sanchez, 908 F.2d 1443, 1451 (9th Cir.1990) (refusal to require disclosure of confidential informant's identity).

We need not decide which standard of review applies here. Given the facts of this case, under any standard we would conclude that the Levine Memorandum contains exculpatory material that must be released to the defendants.

A district court's denial of a motion to produce a witness' statement pursuant to the Jencks Act, 18 U.S.C. § 3500(b), is reviewed for an abuse of discretion. United States v. Augenblick, 393 U.S. 348, 355, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969). A conviction will be affirmed if the "Jencks error is more than likely harmless." United States v. Wallace, 848 F.2d 1464, 1470 (9th Cir.1988).

I. The Levine Memorandum

The government's main witness was David Wheeler. In opening remarks, Assistant U.S. Attorney Stephen Nelson stated:

Now, ladies and gentlemen, David Wheeler is not the only witness in this case; but he is an important witness in that he, and the government will prove this, is the key to unlocking the door that led to the Mexicans and the Bolivians.

David Wheeler was a key, and that key had to be put in the lock and turned; and if the cuts on the key weren't right, the lock wouldn't open, so the agents tested them.

RT II at 160. David...