U.S. v. Benavidez, 92-10031
| Decision Date | 27 April 1993 |
| Docket Number | No. 92-10031,92-10031 |
| Citation | 992 F.2d 1220 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Mike BENAVIDEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: FARRIS, POOLE, and WIGGINS, Circuit Judges.
Mike Benavidez appeals his jury conviction and sentence for five counts of knowingly causing another person to engage in a sexual act by placing that person in fear, in violation of 18 U.S.C. §§ 1153, 2242(1) (1988). The charges against Benavidez stemmed from allegations of sexual abuse made by a minor. We have jurisdiction pursuant 28 U.S.C. § 1291 (1988). We affirm the conviction but remand for an evidentiary hearing to determine whether Benavidez reviewed the presentence report prior to the imposition of sentence.
At a pretrial hearing, the district court ruled against the defense on certain evidentiary issues. Benavidez argues that his rights under the Constitution and Fed.R.Crim.P. 43 were violated by his absence from this stage of his prosecution.
Benavidez did not waive this claim under United States v. Gagnon, 470 U.S. 522, 528-29 (1984), because his absence was involuntary. We review for plain error. See Fed.R.Evid. 103(d); United States v. Brown, 832 F.2d 128, 130 (9th Cir.1987).
Fed.R.Crim.P. 43(a) provides:
The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
We need not decide whether the hearing was a "stage of the trial" under Rule 43(a) because even if it was, Benavidez's absence falls within Fed.R.Crim.P. 43(c)(3), which states that "a defendant need not be present ... at a conference or argument upon a question of law." Cf. United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir.1987) ().
"A defendant has a constitutional right to be present at every stage of the trial where his absence might frustrate the fairness of the proceedings." Sturgis v. Goldsmith, 796 F.2d 1103 (9th Cir.1986). This right is grounded in 1) the Confrontation Clause of the Sixth Amendment or 2) the Due Process Clause of the Fifth. United States v. Rewald, 889 F.2d 836, 854 (9th Cir.1989), modified, 902 F.2d 18 (9th Cir.1990), cert. denied, 111 S.Ct. 64 (1990); Valenzuela-Gonzalez v. U.S. Dist. Court for the Dist. of Arizona, 915 F.2d 1276, 1280 (9th Cir.1990).
The Confrontation Clause is not implicated here because no witnesses were presented against Benavidez. Id. (citing Snyder v. Massachusetts, 291 U.S. 97, 107 (1934)). Due process requires the defendant's presence only when it " 'has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge,' unless the presence would be 'useless, or the benefit but a shadow.' " Sturgis, 796 F.2d at 1108 (quoting Snyder, 291 U.S. at 97). Benavidez's presence was not required.
Pursuant to a discovery agreement with the government, Benavidez received 87 pages of "early Jencks Act material." In exchange, Benavidez agreed to provide "notice of alibi." The agreement recited that failure to comply with its conditions might result in the exclusion of alibi witnesses from trial.
The district court excluded Benavidez's alibi witnesses because Benavidez failed to adhere to the discovery agreement and Fed.R.Crim.P. 12.1. Benavidez asserts that the court abused its discretion. Benavidez admits he did not provide notice of alibi but argues he had no duty to do so because the government failed to provide written notice of the times, dates, and places of the alleged offenses, as required by Rule 12.1. Benavidez does not dispute that this information was included in the materials the government disclosed under the discovery agreement. Instead, he argues that the agreement itself must contain the information. We reject the argument.
United States v. Saa, 859 F.2d 1067 (2d Cir.1988), cert. denied, 109 S.Ct. 1555 (1989), and cert. denied sub nom. Andrade v. United States, 111 S.Ct. 189 (1990), upon which Benavidez relies, is not dispositive. 1 In Saa, no document provided by the government supplied the relevant information. See id. at 1071.
Benavidez next argues that the district court erred by failing to weigh his interest in a fair trial against the interest of the government in avoiding surprise and trial delay. See United States v. Barron, 575 F.2d 752, 757 (9th Cir.1978). The record reveals that the court considered the competing interests.
The court also considered an additional government interest not present in Barron. The disclosure agreement contemplated benefit for both parties. The district court properly considered the government's interest in obtaining the benefit of its bargain, since the defense had already benefitted by receiving the early Jencks Act material. There was no abuse of discretion in excluding Benavidez's alibi witnesses. 2
The district court reviewed in camera the victim's counseling and psychological records. After determining that they contained no material subject to disclosure under Brady v. Maryland, 373 U.S. 83 (1963), the court ordered the documents sealed. We review the court's refusal to grant access to the psychiatric records for an abuse of discretion. See United States v. Antone, No. 91-10503, slip op. at 14468 (9th Cir. Dec. 15, 1992).
The government must disclose evidence favorable to the defendant and material to either guilt or punishment. United States v. Streit, 962 F.2d 894, 900 (9th Cir.) (citing United States v. Bagley, 473 U.S. 667, 674 (1985) and Brady, 373 U.S. at 87), cert. denied, 113 S.Ct. 431 (1992). Evidence undermining the credibility of a key government witness must be disclosed when the reliability of the witness may be determinative of guilt or innocence. Brumel-Alvarez, 976 F.2d at 1240 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)).
The district court did not abuse its discretion. We have reviewed the sealed records. They do not contain any information that should have been disclosed. The records do not tend to exculpate Benavidez. Nor do they support his contention that the victim's testimony was fabricated. See Antone, slip op. at 14468.
Benavidez alleges that his attorney, Ms. Rainey, was emotionally and physically unprepared for trial. Benavidez claims that Rainey's performance was inadequate in that she: (1) was "listless and non-responsive" during the trial; (2) had difficulty following the testimony and making appropriate objections; (3) failed to secure Benavidez's presence at the pretrial hearing; (4) failed to comply with the applicable notice of alibi requirements; (5) failed to authenticate crucial documentary evidence; and (6) did not prepare adequately for the sentencing hearing.
Claims of ineffectiveness of defense counsel in federal criminal trials customarily are dealt with on collateral attack. United States v. Houtchens, 926 F.2d 824, 828 (9th Cir.1991); United States v. Molina, 934 F.2d 1440, 1446 (9th Cir.1991). Where the development of facts outside the trial record is unnecessary to evaluate the claim, however, we may decide the issue. United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir.1991); Molina, 934 F.2d at 1446. The present record suffices with respect to all but one of Benavidez's allegations.
Benavidez contends that Rainey admitted her ineffectiveness. This contention lacks merit. In seeking a continuance, Rainey stated that she was "not convinced I am not a hundred percent well enough to go through and deal with this trial." RT 10/7/91 at 6. The district court observed Rainey's condition and courtroom demeanor and found her physically and medically capable of conducting a defense. This finding is not clearly erroneous.
Rainey never admitted incompetence in the brief she filed in this court. Rather, she diligently set forth the allegations of her client, Benavidez. Moreover, even if Rainey had admitted incompetence, to deem the admission dispositive would be to substitute her judgment for our own.
The trial transcript does not substantiate Benavidez's claim that Rainey was "listless" and unable to interpose objections. Nor does Benavidez argue that further development of the record is necessary or appropriate. Because he has not shown that Rainey's performance was deficient, Benavidez's claim fails.
Rainey's failure to secure Benavidez's presence at the pretrial hearing does not constitute ineffective assistance. The hearing dealt only with the motion for a continuance and with evidentiary rulings for which Benavidez's presence was not required and would not have been helpful. He fails to demonstrate the requisite prejudice.
Next, Benavidez argues that Rainey should have secured the admission of medical test results, which demonstrated that neither Benavidez nor his wife were infected with chlamydia. Rainey cleverly circumvented the authenticity requirement of the Federal Rules of Evidence and presented the relevant information to the jury. See RT 10/9/91 at 114-16, 177-79. Although admission of the actual results might have been more persuasive, it is not reasonably probable that the "result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Benavidez contends that Rainey admitted at the sentencing proceedings that she was unprepared. The record refutes this contention. Rainey merely complained that she had not received the government's sentencing memorandum, in which the government argued for an upward departure. The court did not depart upward.
Finally, Benavidez complains of Rainey's failure...
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...were sufficient to trigger the defendant's obligations to provide notice of an alibi defense. Id. (citing United States v. Benavidez, 992 F.2d 1220 (9th Cir. 1993)). The government asserts that the defendant waived his ability to argue that the Rule 12.1 request was defective by consistentl......