U.S. v. Bernal-Obeso

• Decision Date: 29 March 1993
• Docket Number: D,BERNAL-OBES,No. 91-50796,91-50796
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Filemonefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 331

989 F.2d 331

UNITED STATES of America, Plaintiff-Appellee, v. Filemon BERNAL-OBESO, Defendant-Appellant.

No. 91-50796.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1992.

Decided March 29, 1993.

Sara A. Rapport, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant.

John Rice, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Leland C. Nielsen, District Judge, Presiding.

Before: WALLACE, TROTT, and T.G. NELSON, Circuit Judges.

TROTT, Circuit Judge:

Filemon Bernal-Obeso appeals his conviction by a jury of conspiracy to possess a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and possession of a controlled substance with intent to distribute and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. His primary complaint on appeal is in two parts. First, he alleges that during the discovery phase of his case he was prevented from pursuing information suggesting that a key informant-witness had lied about his criminal record to the Drug Enforcement Administration. Second, he contends he was denied by the trial court the opportunity to confront that informant-witness on cross examination with the same information. The government asks us, only for the purpose of deciding this appeal, to assume error in denying the defendant access to and use at trial of this information, but to affirm nevertheless on the ground that the supposed error was harmless beyond a reasonable doubt. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 (1988). We vacate the defendant's conviction and remand for a hearing on the nature and admissibility of the disputed evidence. This panel shall retain appellate jurisdiction over this matter should it come back to the Court of Appeals.

I

Bernal-Obeso's conviction was based in large measure on the testimony of a confidential informant named Cabrera-Diaz. Cabrera-Diaz, a Mexican citizen, had worked undercover for the Drug Enforcement Administration (DEA) for three to four years and was instrumental in the investigation resulting in Bernal-Obeso's conviction. For his work related to this case, Cabrera-Diaz was paid (1) $1,000 on the day Bernal-Obeso was arrested, (2) $1,000 a few days later when debriefed by the government, and (3) $10,000 shortly before the appellant's indictment. Cabrera-Diaz's relationship with the DEA also permitted him to travel freely throughout the United States for the DEA, even though he had only a border crossing card.

The trouble leading to this appeal started when the government responded late to a defense pretrial discovery request for information about Cabrera-Diaz. The government was under a court order predicated on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), to provide to the defense by a specific date all pertinent information about the informant. Five days late, and only five days before the trial was scheduled to begin, the government advised the defense in a written memorandum that Cabrera-Diaz had killed two people in 1982, but had not been charged with any crimes pertaining to their deaths. Shortly thereafter, defense counsel advised the court that this information was not accurate and that criminal charges had in fact been filed against Cabrera-Diaz. Defense counsel requested a continuance to explore this discrepancy, but the request was denied. Two days later, immediately before the trial began, defense counsel renewed his motion for a continuance, advising the court that the government's memorandum was wrong in almost all respects: (1) Cabrera-Diaz had been charged with two counts of murder and two counts of attempted murder for his involvement in the 1982 killings; (2) he had not raised a claim of self-defense; and (3) he had pleaded guilty to two felony counts of voluntary manslaughter with a firearm enhancement. In addition to the renewed request for a continuance to explore the implications of these discrepancies between the facts and the government's tardy memorandum, defense counsel requested a preliminary ruling from the court allowing him to attempt to impeach Cabrera-Diaz with what counsel believed were lies to the DEA concerning his prior record. Both requests were denied. The court permitted impeachment of the informant with his prior manslaughter convictions, but allowed no questions about the possibility of lies to the DEA.

The vexing hitch in this case is that the government has created the impression that Cabrera-Diaz lied to the DEA before the trial about his impeachable criminal history. The difference between the government's memorandum regarding Cabrera-Diaz's criminal history and the facts relating to his pleas of guilty to manslaughter is responsible for this impression. As the government admits in its brief, "Certainly there was a breakdown in communication at some point and the Government did not provide defense counsel with the correct information regarding the [confidential informant's] prior record." Under the circumstances, if there is or was an innocent explanation for this "false impression," as the government now claims, ¹ the government should have promptly rectified this lapse on its own initiative before trial started. The government's failure to set the record straight is partially excused only by its forthright admission at oral argument that it made a mistake by not clearing up this matter when it became an issue. Nevertheless, we, like the defense, are left with a record from which we cannot determine whether the informant lied to the DEA about his prior felony convictions, or whether this is just a case of sinless miscommunication. In this connection, the government, although disclaiming any wrongdoing, asks us in essence to assume for the sake of deciding the appeal that the informant lied, and then decide whether the Confrontation Clause error that this assumption necessarily creates was harmless beyond a reasonable doubt. The government, of course, argues the error was harmless. We decline to follow that course, because it is simply too conjectural and speculative. We believe the better course is to flush out the truth from behind the government's veil and then determine what to do with it in the light of its implications, if any, with respect to Cabrera-Diaz's credibility. Moreover, the government should be required under these circumstances, for prophylactic reasons at least, to demonstrate whether it discharged its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio to provide the defense with material exculpatory evidence within the government's possession, including evidence that could have been used to impeach the informant's credibility. ² On this important issue, the record is silent. If the government did know about the witness's prior felony convictions, why did it not so advise the defense? This is an issue of too many questions and not enough answers. Moreover, we may be dealing with the "tip of an iceberg" of other evidence that should have been revealed. United States v. Shaffer, 789 F.2d 682, 690 (9th Cir.1986) (quoting United States v. Griggs, 713 F.2d 672, 674 (11th Cir.1983) (remanding for an in camera hearing to review the prosecutor's files for additional exculpatory materials)). Thus, resolution of this matter is best served by the light of a hearing, not the darkness of an assumption on appeal.

II

The use of informants to investigate and prosecute persons engaged in clandestine criminal activity is fraught with peril. This hazard is a matter "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" and thus of which we can take judicial notice. Fed.R.Evid. 201(b)(2); cf. Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984) (illegal activities of prisoners subject to judicial notice). By definition, criminal informants are cut from untrustworthy cloth and must be managed and carefully watched by the government and the courts to prevent them from falsely accusing the innocent, from manufacturing evidence against those under suspicion of crime, and from lying under oath in the courtroom. As Justice Jackson said forty years ago, "The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are 'dirty business' may raise serious questions of credibility." On Lee v. United States, 343 U.S. 747, 757, 72 S.Ct. 967, 973, 96 L.Ed. 1270 (1952). A prosecutor who does not appreciate the perils of using rewarded criminals as witnesses risks compromising the truth-seeking mission of our criminal justice system. See United States v. Wallach, 935 F.2d 445 (2d Cir.1991) (convictions reversed because government should have known witness was committing perjury). Because the government decides whether and when to use such witnesses, and what, if anything, to give them for their service, the government stands uniquely positioned to guard against perfidy. By its actions, the government can either contribute to or eliminate the problem. Accordingly, we expect prosecutors and investigators to take all reasonable measures to safeguard the system against treachery. This responsibility includes the duty as required by Giglio to turn over to the defense in discovery all material information casting a shadow on a government witness's credibility. Shaffer, 789 F.2d at 689.

Our judicial history is speckled with cases where informants falsely pointed the finger of guilt at suspects and defendants, creating the risk of sending innocent persons to prison. As an example from our own circuit, one need only recall the widely publicized Leslie Vernon White saga in Los Angeles, California, which resulted in the reinvestigation of over 100 felony cases by the Office of the District Attorney of...