U.S. v. Amador-Galvan
| Decision Date | 22 November 1993 |
| Docket Number | 92-10715,Nos. 92-10325,AMADOR-GALVAN,s. 92-10325 |
| Citation | 9 F.3d 1414 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose, aka Jose Amador Pullido-Villarreal, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo MOLINA, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Brian I. Rademacher, Sherick Law Office, Tucson, AZ, for defendant-appellant Amador-Galvan.
John G. Bogart, Tucson, AZ, for defendant-appellant Molina.
William Randolph Stevens, II, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before: FERGUSON, THOMPSON, and O'SCANNLAIN, Circuit Judges.
Jose Amador-Galvan and Rodolfo Molina were convicted of conspiracy to possess with intent to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846, and possession with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II).
This opinion addresses the district court's refusal to disclose the identities of non-witness confidential informants and exclusion of expert witness testimony on the unreliability of eyewitness testimony. We address all other issues in a separate memorandum disposition.
On April 27, 1988, at around 11:00 a.m., Customs Inspector Rodolfo Molina, Jr. let a Ford LTD containing 661 pounds of cocaine pass through a primary inspection lane at the United States-Mexico border checkpoint at Customs Inspector George Campos, working in the secondary inspection area, stopped the car after it passed through the primary inspection area to question the driver and inspect the car because the driver and car fit a "profile." Campos asked the driver to step out of the car and asked for his passport. The driver reached for his back pocket, pulled out a wallet, then threw it on the ground and ran back to Mexico. Agents discovered 661 pounds of cocaine in the vehicle's trunk. In contrast to Molina's description, Campos described the driver as an adult Spanish-speaking Hispanic male he had never seen before, around 25-28 years old, with a light complexion. Campos told investigating agents that he felt certain he would be able to identify this person if he saw him again.
the Douglas, Arizona Port of Entry. In two formal statements given later to his employers, Molina described the driver of this car as a "gringo" about 25 years old, very light complected, who claimed to be a United States citizen and spoke perfect English with no trace of a Spanish accent, and whom Molina recognized from previous border crossings
The United States Customs Service began an investigation to identify the driver, focusing in part on Customs Inspector Molina. The Customs Service began to suspect that Molina was involved in the cocaine smuggling scheme because, inter alia, he allowed the "profile" driver to pass through his lane without inspection, he allegedly did not enter the car's license plate number into the TEC computer system as he should have, he did not run after the fleeing driver as the other customs inspectors did, and he gave a different description of the driver than did some of his colleagues. Furthermore, the Customs Service was aware that he was involved in suspicious activity a few months earlier, on January 21 and 22, 1988, with two suspected cocaine traffickers and money launderers. Customs Inspector Campos testified, however, that he personally did not suspect Molina was involved.
On May 9, 1988, Customs Special Senior Agent Michael Woodworth obtained a warrant to search Molina's residence for evidence of his involvement in the cocaine smuggling attempt. The search warrant, executed the next day, turned up address books linking Molina to Amador-Galvan. On the basis of this evidence, subpoenaed telephone records showing telephone contact between Molina and Amador-Galvan, a tip from an informant, a latent fingerprint taken from the inside rear view mirror of the Ford LTD, and a photo identification by Campos, the Customs Service determined that Amador-Galvan could have been the driver of the Ford LTD.
Approximately 28 months later, on August 22, 1990, Customs Inspector Campos identified Amador-Galvan as the driver of the Ford LTD in an informal photographic lineup. Customs Agent Morgan sent Campos to Amador-Galvan's office in Agua Prieta, Mexico, to make an appointment with a dentist who Morgan told Campos might be the driver of the Ford LTD. Instead of having Campos meet the dentist to conduct a one-person showup, Morgan took 21 photographs of four men in front of the dentist's office. From these photographs, Campos recognized two of the men because they frequently crossed the border. Campos did not recognize the third man, whose physical appearance apparently differed greatly from the description of the driver of the Ford LTD. Campos identified the fourth man, Amador-Galvan, as the driver of the Ford LTD.
Amador-Galvan and Molina were indicted together on April 24, 1991, and were both convicted on February 4, 1992 at a joint trial, for conspiracy to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A)(ii)(II) and 21 U.S.C. § 846 (Count I); and possession with intent to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(ii)(II) (Count II). Both Amador-Galvan, sentenced to 188 months imprisonment, and Molina, sentenced to 327 months imprisonment, are currently serving their terms.
Amador-Galvan and Molina contend that the district court erred in denying their motion The government has a qualified privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). "The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement," by preserving the anonymity of these informants. Id. A trial court may require disclosure, however, where the defendant shows that disclosure of an informant's identity, or of the contents of his communication, is "relevant and helpful to the defense of the accused, or is essential to a fair determination of a cause." Id. at 60-61, 77 S.Ct. at 627-628.
to disclose the identities of four non-witness government informants who allegedly could have provided exculpatory evidence. We conclude the district court abused its discretion in failing to hold an in camera hearing to determine whether the informants in fact had information that would have been relevant and helpful to the defendants
The defendant bears the burden of demonstrating a need for disclosure of a confidential informant's identity. He must show that he has more than a "mere suspicion" that the informant has information which will prove "relevant and helpful" or will be essential to a fair trial. United States v. Williams, 898 F.2d 1400, 1402 (9th Cir.1990).
The district court must then apply a balancing test, weighing the public interest in encouraging citizens to inform the government about criminal activity, against an accused's right to prepare his defense. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628; United States v. Sanchez, 908 F.2d 1443, 1451 (9th Cir.1990). "Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro, 353 U.S. at 62, 77 S.Ct. at 628.
The district court, in exercising its...
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