U.S. v. Rubio-Topete

Decision Date30 June 1993
Docket NumberRUBIO-TOPET,D,No. 92-10212,92-10212
Citation999 F.2d 1334
Parties37 Fed. R. Evid. Serv. 1141 UNITED STATES of America, Plaintiff-Appellee, v. Adalbertoefendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Donald Thomas Bergerson, San Francisco, CA, for defendant-appellant.

Rory K. Little, Martha Boersch, Asst. U.S. Attys., San Francisco, CA, for plaintiff-appellee.

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

Before: FARRIS, POOLE, WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

OVERVIEW

Adalberto Rubio-Topete was convicted of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and possession of heroin with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Rubio-Topete challenges the district court's decision to exclude the testimony of Gabriel Soto and a defense investigator. He also contends that a two-level upward adjustment in his offense level for obstruction of justice based on his trial testimony violates the Constitution and is not supported by sufficient factual findings. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm Rubio-Topete's conviction, vacate his sentence, and remand for resentencing.

FACTS

Gabriel Soto informed the San Mateo County Narcotics Task Force that a drug deal would occur on August 17, 1992. Soto told officers that Alfredo Becerra would arrive at a Redwood City parking lot in a red car and that Becerra would be accompanied by a yellow Chrysler Cordoba that would be the "load" car. Early on the morning of August 17th, officers began surveillance of the parking lot.

As anticipated, a red car accompanied by a yellow Chrysler Cordoba entered the lot that morning. The driver of the red car was believed to be Alfredo Becerra, and the driver of the Cordoba was Rubio-Topete. Officers observed that Rubio-Topete was wearing a baseball cap and a hip length olive-green army jacket. Becerra and Rubio-Topete met and spoke with two other individuals, later identified as codefendant Martin Alvarez and an individual known only as "El Chamaco." After a brief discussion with the driver of the red car, Martin Alvarez exited his vehicle and got in the passenger side of the Cordoba. El Chamaco remained in the white Nissan in which he had arrived. After a few minutes, the cars left the parking lot. The white Nissan and the Cordoba headed in the same direction while the red car left in another direction.

Officers followed the Nissan and the Cordoba from both the ground and the air. The cars proceeded south on highway 101, eventually arriving at a San Jose house at about 9:45 a.m. Soto had told police that a San Jose house was the stash house for Mr. Becerra's drug operation.

After arriving at the San Jose house, police continued surveillance from a van and also from the air. From their vantage point on the ground, officers could not see all of the house (their view of the corner of the house where the garage was located was obstructed), but they could see most of the house, the driveway, and the surrounding area. Officers maintained watch throughout the day and testified that Rubio-Topete never left the house until after 7:00 p.m.

According to the testimony, at about 7:00 p.m. Alvarez came out of the house and moved the yellow Cordoba, which had been parked on the street all day, into the driveway. Alvarez then went back into the garage. Officers testified that a few minutes later Rubio-Topete came out of the garage and got into the back seat of the car for about five minutes. He then got out and went back into the garage area. A few minutes later, both Alvarez and Rubio-Topete came out of the garage area and got into the back seat of the Cordoba for a few minutes. Both returned to the garage area for less than a minute, and when they came back out Alvarez was carrying a box. Both men approached the passenger side of the car, and Rubio-Topete got into the car. Alvarez stood close to the Cordoba next to the opened passenger door and held the box up next to the door. After about five minutes, Alvarez discarded the empty box, Rubio-Topete got out of the car, and both of them returned to the garage area.

A few minutes later both men got into the car and drove away. Rubio-Topete drove, heading north on highway 101. He returned to the same parking lot in Redwood City where surveillance had begun, and officers stopped the car and ordered both men out. Two police narcotics dogs sniff-searched the vehicle and alerted to the rear edge of the exterior passenger door.

An officer got into the car and removed the paneling from the right rear sidewall, using a Phillips screwdriver that he found on the rear floor of the car. Inside the metal structure of the rear sidewall, officers discovered twelve plastic bags containing about 15 pounds of heroin. Police then searched Rubio-Topete and discovered a box containing a small digital scale commonly used to weigh narcotics and a piece of paper with a column of numbers corresponding exactly to the number of bags and the number of ounces of heroin in each bag.

Rubio-Topete's only defense at trial was his contention that he did not know that the car he was driving contained heroin. He testified that he borrowed the Cordoba from Becerra to look for a transmission for a '69 Ford pick-up. He said he did not want to use his own car because it had a smaller trunk and because he did not want to soil the carpet in his trunk. He claims that he took Alvarez to San Jose because Alvarez said he needed a ride to a party there. He also testified that Becerra told him that El Chamaco would help him find a transmission once they arrived in San Jose.

Rubio-Topete testified that he left with El Chamaco in the Nissan to look for a transmission an hour or two after arriving at the house in San Jose. Officers testified that they saw the Nissan leave but indicated that they never saw Rubio-Topete leave the residence. Rubio-Topete testified that he and El Chamaco went to look for the transmission. Interestingly, Rubio-Topete testified that he had no money on his person with which to purchase the transmission. When he was asked how he was going to pay for the transmission if he found one, he indicated that El Chamaco, whom he allegedly did not know, was going to pay for it. Rubio-Topete also denied knowing any of the people at the house where the barbecue was held, though he remained there for most of the day. He did admit that he was acquainted with Alvarez.

Finally, Rubio-Topete testified that there was another man at the barbecue in a baseball cap and olive-green jacket. He claims that he saw this man coming and going from the garage, raising the inference that this

                other man must have been the one police observed in the back seat of the car he was driving.  (The officer in the van identified Rubio-Topete as the person he had seen in the back seat of the car).   Rubio-Topete also testified that the piece of paper and the box containing the digital scale were given to him at the house.   He said that he was told to deliver them to Mr. Becerra and testified that he did not know what they were
                
DISCUSSION
I. Exclusion of Soto's Testimony

Rubio-Topete contends that the district court erred when it excluded the testimony of Gabriel Soto because the testimony was irrelevant and privileged under the Fifth Amendment. We review a district court's ruling on the relevance of evidence for an abuse of discretion, United States v. Schaff, 948 F.2d 501, 505 (9th Cir.1991), and Soto's claim of privilege de novo. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The privilege against self-incrimination extends not only to "answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the [witness]." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). The standard for determining whether a claim of privilege is justified is " 'whether the claimant is confronted by substantial and "real," and not merely trifling or imaginary, hazards of incrimination.' " United States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 956, 63 L.Ed.2d 250 (1980) (citations omitted); United States v. Paris, 827 F.2d 395, 398 (9th Cir.1987).

Rubio-Topete hoped to elicit two lines of testimony from Soto. First, he planned to ask Soto about the extent of his involvement in and knowledge of Becerra's drug operation. Through this testimony he hoped to establish that Soto knew the operation in depth and that Soto was not acquainted with Rubio-Topete. Second, Rubio-Topete wanted to question Soto about the events of August 17th, focusing in particular on whether Rubio-Topete's participation was anticipated. Rubio-Topete contends that Soto's testimony would have bolstered his defense that he was an unsuspecting mule. We conclude, however, that the first line of testimony is privileged and the second irrelevant.

It is uncontested that Soto received no grant of immunity from the government. Any questions, then, about Soto's knowledge of Becerra's drug operation and his past dealings with Becerra could have provided a link in the chain of evidence needed to prosecute Soto and certainly posed a real hazard of incrimination. Thus, Soto's claim of privilege was valid at least as it pertains to any past dealings with or knowledge of Becerra's drug operation. See Apfelbaum, 445 U.S. at 128, 100 S.Ct. at 956; Paris, 827 F.2d at 398.

As for the testimony that Rubio-Topete sought relative to Soto's knowledge of the August 17th transaction, we agree with the district court that such testimony was irrelevant. It was unclear exactly what role Soto played in setting up the August 17th deal. All that can be said for certain is that Soto provided police...

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