U.S. v. Armenta

Decision Date25 October 1995
Docket NumberNo. 94-50330,94-50330
Citation69 F.3d 304
Parties95 Cal. Daily Op. Serv. 8296, 95 Daily Journal D.A.R. 14,331 UNITED STATES of America, Plaintiff-Appellee, v. Jose Arturo ARMENTA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

William V. Gallo, Assistant United States Attorney, San Diego, California, for defendant-appellant.

Garrett J. Zelen, Los Angeles, California, for plaintiff-appellee.

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

Before: FLETCHER, WIGGINS, and FERNANDEZ, Circuit Judges.

WIGGINS, Circuit Judge:

OVERVIEW

Jose Arturo Armenta was indicted for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Armenta entered a guilty plea conditioned on his right to appeal the trial court's summary denial of his pretrial suppression motion. On appeal, a panel of this court remanded for an evidentiary hearing. Following the hearing on remand, the district court denied Armenta's suppression motion. The court also denied Armenta's motion to dismiss the indictment based on the government's failure to ensure the availability of a material witness. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm in part, and reverse and remand in part.

FACTS

In August 1991, Armenta's codefendant Vargas recruited codefendant Raygoza-Hernandez to transport cocaine from California to New York. The cocaine belonged to Armenta. Ruth Araceli-Lewis (who was not a defendant in this case) rented a motor home for the trip.

On August 24, 1991, Raygoza-Hernandez and a confidential informant ("CI") drove the motor home from Chula Vista to Temecula, California. Armenta and codefendant Batiz-Guzman followed the motor home in a car. In Temecula, the parties switched vehicles, and Armenta and Batiz-Guzman thereafter drove the motor home to a house on Clifford Street (the "Clifford house") in Rialto, California. They parked the motor home in the driveway of the house.

The CI had informed the FBI of the drive, and the FBI had passed the information on to the Orange County Regional Narcotics Suppression Program ("RNSP"). RNSP officers followed the motor home from Temecula to the Clifford house and set up surveillance there. The officers observed numerous cars coming and going from the house. Armenta spent the night in the house.

On August 25, 1991, RNSP officers approached Armenta, Batiz-Guzman, and codefendant de Jesus, who were in or around the motor home. After the officers identified themselves, Officer Serrato asked Armenta if he lived at the Clifford house and owned the motor home. Armenta replied that he lived in Chula Vista and did not own the motor home. When Batiz-Guzman went into the house to retrieve her identification, Officer Felix asked to accompany her. According to Officer Felix and Officer Kraus, who both entered the house with Batiz-Guzman, she gave them consent to enter. Batiz-Guzman, on the other hand, executed a declaration in May 1992, stating that she had not given the officers consent. The district court found that she had given consent.

Once inside the house, Officer Kraus requested and received consent to check for other occupants of the house. While walking through the house, Officer Kraus observed several kilograms of what appeared to be cocaine lying on a bedroom floor, and packaging materials. He noticed that the house was barely furnished and exhibited few signs of habitation. For example, he could recall seeing no dishes in the kitchen, no towels in the bathroom, and the bedrooms were either empty or contained sleeping bags instead of beds.

The officers detained Armenta, Batiz-Guzman, and de Jesus while Officer Kraus obtained a telephonic search warrant for the house, motor home, and another house on Alice Street. The search uncovered 71 kilograms of cocaine in the motor home, and 3 kilograms of cocaine and a loaded pistol in the Clifford house.

Armenta, Batiz-Guzman, and de Jesus entered conditional guilty pleas in June 1992. They were sentenced to prison terms of 360 months, 120 months, and 121 months, respectively. Only Armenta appealed, arguing that the district court erred by summarily denying his pretrial suppression motion. He filed his notice of appeal on September 1, 1992, and his appeal was argued and submitted to a panel of this court on November 3, 1993.

While Armenta's appeal was pending, Batiz-Guzman asked the Office of International Affairs of the Department of Justice to transfer her to a Mexican prison, pursuant to the Treaty on the Execution of Penal Sentences, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399. By letter received May 4, 1993, the Office of International Affairs asked the prosecutor, William Gallo, to state any objections he had to Batiz-Guzman's transfer. Gallo did not respond to the letter.

On November 30, 1993, this court rendered its decision in Armenta's appeal, remanding the case for a suppression hearing, and instructing that if Armenta's suppression motion was successful, he must be allowed to withdraw his guilty plea. The panel's decision was received in the prosecutor's office on December 3. Also on December 3, Armenta's attorney sent a letter to Gallo requesting the location of all of Armenta's codefendants. Gallo was out of the state at the time, however, so he did not receive either document until December 17, 1993. Upon his return, Gallo spoke with Armenta's attorney, who stated that he wanted Batiz-Guzman to testify at the suppression hearing. Gallo called the Office of International Affairs and learned that Batiz-Guzman had been transferred to Mexico the prior week, on December 10, 1993. Gallo attempted to secure Batiz-Guzman's voluntary return to the United States, pursuant to the Mutual Legal Assistance Cooperation Treaty, Dec. 9, 1987, U.S.-Mex., 27 I.L.M. 447 (entered into force May 3, 1991), but she refused to return.

The district court held a suppression hearing on April 25, 1994 and denied Armenta's motion, finding that Armenta lacked standing to challenge the search. The court also denied Armenta's motion to dismiss the indictment, concluding that Batiz-Guzman's unavailability at the suppression hearing did not violate Armenta's Fifth or Sixth Amendment rights. Armenta timely appeals both rulings.

DISCUSSION
I. STANDARD OF REVIEW

Whether an indictment should be dismissed because the government failed to retain a witness is reviewed de novo. United States v. Velarde-Gavarrete, 975 F.2d 672, 674 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 3010, 125 L.Ed.2d 701 (1993). The lower court's findings of fact with regard to a motion to dismiss on that ground are reviewed for clear error. Id.

Whether a defendant has standing to contest the legality of a search presents a mixed question of fact and law. United States v. Singleton, 987 F.2d 1444, 1447 (9th Cir.1993). The district court's legal conclusions are reviewed de novo, while the findings of fact are reviewed for clear error. Id.

II. MOTION TO DISMISS THE INDICTMENT

Following this court's remand to the district court for a suppression hearing, Armenta moved for dismissal of the indictment. He alleged that the government's failure to ensure Batiz-Guzman's presence at the suppression hearing violated his Fifth Amendment right to due process and his Sixth Amendment right to compulsory process. He argues that Batiz-Guzman's unavailability to testify prejudiced him during the hearing.

"In cases of constitutionally guaranteed access to evidence, wherein the Government loses potentially exculpatory evidence, ... the defendant must make an initial showing that the Government acted in bad faith and that this conduct resulted in prejudice to the defendant's case." United States v. Dring, 930 F.2d 687, 693 (9th Cir.1991), cert. denied, 113 S.Ct. 110 (1992); United States v. Valenzuela-Bernal, 458 U.S. 858, 866-67, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).

The district court found that Armenta failed to prove a constitutional violation because he demonstrated neither bad faith by the prosecutor nor prejudice to his case. We affirm on the ground that Armenta failed to prove bad faith on the part of the prosecutor.

Armenta argues that Gallo attempted to gain an unfair tactical advantage over him at the suppression hearing by securing Batiz-Guzman's unavailability. Such an attempt, if proven, would demonstrate bad faith. See Dring, 930 F.2d at 695. As evidence to support this claim, Armenta cites (1) Gallo's failure to object to Batiz-Guzman's transfer to Mexico, despite Gallo's knowledge that Armenta had appealed the denial of his suppression motion and that Batiz-Guzman had signed a declaration stating that she had not given the officers consent to enter the house; and (2) the fact that Batiz-Guzman was transferred after the appellate panel remanded for an evidentiary hearing and after Armenta's attorney asked Gallo for the location of Armenta's codefendants. We agree with the district court that this evidence is not sufficient to demonstrate bad faith.

Although Gallo did not object to Batiz-Guzman's transfer, he also took no affirmative steps to encourage her transfer: he did not even affirmatively state that he had no objections; he simply did not respond at all to the Office of International Affairs' inquiry. 1 Gallo had no control over the transfer decision; he did not know when or even whether Batiz-Guzman's request for a transfer would be granted. Moreover, Gallo was out of the state when the appellate decision was rendered and when Armenta made his request. Gallo thus did not receive either document until December 17, after Batiz-Guzman had already been transferred. In light of these circumstances, neither the fact that Batiz-Guzman was transferred, nor the timing of that transfer, amounts to bad faith conduct by Gallo.

Gallo's conduct upon learning that...

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