U.S. v. Bonilla

• Decision Date: 01 April 1980
• Docket Number: Nos. CA,s. CA
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas J. BONILLA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Chris MUNOZ, Defendant-Appellant. 79-1380, CA 79-1419.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1262

615 F.2d 1262

UNITED STATES of America, Plaintiff-Appellee, v. Thomas J. BONILLA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Chris MUNOZ, Defendant-Appellant.

Nos. CA 79-1380, CA 79-1419.

United States Court of Appeals, Ninth Circuit.

April 1, 1980.

David M. Heller, Phoenix, Ariz. (argued), H. Thomas Hirsch, Odessa, Tex., for defendants-appellants.

Michael D. Hawkins, Phoenix, Ariz., argued, Daniel R. Drake, Phoenix, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before TRASK and SNEED, Circuit Judges, and GRAY ^*, District Judge.

PER CURIAM:

Bonilla and Munoz appeal their convictions for conspiracy to distribute and the distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b), and 846. Bonilla asserts reversible error in the Government's failure to produce a confidential informant in advance of trial, and in the Government's closing argument, which, he contends, included a comment upon his failure to testify. Munoz charges that the district court committed reversible error by admitting into evidence his statements to a Government agent after the Government represented that all such statements had been turned over to him, and by admitting telephone records over his objection based on relevancy. Munoz further insists that there was insufficient evidence to support his conviction.

We find the appellant's contentions to be without merit and, accordingly, affirm the judgments.

Although Bonilla was entitled to learn the informant's identity, because the informant was a percipient witness to the criminal transaction underlying his conviction, see Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir. 1968), he was not entitled to have the informant produced in advance of trial. Bonilla's motions requesting that the Government reveal the informant's identity and produce the informant for a pre-trial interview were denied at a hearing ten days prior to the trial date. At that hearing, Bonilla possessed the informant's name, and the Government indicated its willingness to confirm the name, but objected to disclosure of the informant's whereabouts. The Government further stated that a subpoena for the informant had been prepared and that the informant had been notified of the trial date and would be available at that time. Bonilla's counsel at no time asked that the informant be produced at the trial, which suggests strongly that he desired grounds for reversible error more than he desired the presence of the informant.

The court is not required to order the informant's production on its own motion. The Government is obliged to exert reasonable efforts to produce an informant only when his "presence has been properly requested by the defendant." United States v. Hart, 546 F.2d 798 (9th Cir. 1976), cert. denied 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977). There is ". . . no rule that the Government is under any general obligation to produce an informer." Velarde-Villarreal v. United States, 354 F.2d 9, 12 (9th Cir. 1965). Therefore, we do not find reversible error.

Next Bonilla contends that the Government, in its closing argument, commented upon his failure to testify and that such comments constituted reversible error. We do not agree that the prosecutor's comments were "manifestly intended" or were "of such character that the jury would naturally and necessarily take . . . (them) . . . to be a comment on the failure of the accused to testify." Hayes v. United States, 368 F.2d 814, 816 (9th Cir. 1966). The argument was directed to the credibility of codefendant Munoz' testimony, not to Bonilla's failure to testify.

Appellant Munoz objects to the Government's misrepresentation to the district court that all statements made by him were included in Agent Hella's report, which was given to Munoz the afternoon before trial. He contends that his conviction should be reversed because the Government misrepresented a material fact to the trial court. (Reply Brief, p. 3). Aside from the fact that it is far from clear that the omission of the statement was the result of an attempt to deceive the court, rather than having been due to inadvertence, Munoz has not demonstrated any prejudice flowing from the Government's alleged...