U.S. v. Chavez-Vernaza, CHAVEZ-VERNAZA

• Citation: 844 F.2d 1368
• Decision Date: 05 May 1988
• Docket Number: Nos. 86-3178,CHAVEZ-VERNAZA,86-3187,s. 86-3178
• Parties: 25 Fed. R. Evid. Serv. 1034 UNITED STATES of America, Plaintiff-Appellee, v. Jose Carlos, aka Jose Chavez, aka "Pepe", Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1368

844 F.2d 1368

25 Fed. R. Evid. Serv. 1034

UNITED STATES of America, Plaintiff-Appellee, v. Jose Carlos CHAVEZ-VERNAZA, aka Jose Chavez, aka "Pepe" Defendant-Appellant.

Nos. 86-3178, 86-3187.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 9, 1987.

Decided Dec. 28, 1987.

As Amended on Denial of Rehearing

and Rehearing En Banc May 5, 1988.

John Henry Hingson, III, Oregon City, Or., for defendant-appellant.

Kenneth C. Bauman, Asst. U.S. Atty., Washington, D.C., for plaintiff-appellee.

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

Before WRIGHT, WALLACE and PREGERSON, Circuit Judges.

WALLACE, Circuit Judge:

Chavez-Vernaza (Chavez) appeals from his convictions for engaging in various drug-related activities, including possession and distribution of cocaine, in violation of the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. Sec. 801 et seq. He argues that reversal is required because the district court failed to suppress financial records introduced against him at trial, refused to allow him to examine presentence reports of government witnesses, denied his motion to seat Black jurors peremptorily challenged by the prosecutor, forbade cross-examination regarding the home addresses of government witnesses, overruled an objection to closing remarks of the prosecutor, and denied a new trial. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

In 1982, the Portland Police Bureau began an investigation of Chavez. The police believed that he was involved in an organization that acquired and distributed cocaine in the Pacific Northwest. During this investigation, state and local law enforcement agents in Oregon obtained evidence establishing Chavez's involvement in wide-ranging illegal drug activities. Among the evidentiary items obtained by local officials were records secured from financial institutions concerning Chavez's assets and banking transactions.

Federal law enforcement agents became involved in the Chavez investigation in 1983. On March 25, 1983, federal agents obtained eleven search warrants pertaining to the investigation. In the fall of 1983, a federal grand jury investigation was initiated which resulted in an eleven count indictment against Chavez charging him with violating provisions of the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. Sec. 801 et seq., and with attempting to import cocaine in violation of 18 U.S.C. Sec. 2.

Chavez surrendered himself to federal authorities. He was arraigned, entered pleas of not guilty to all counts, and was released from custody after posting $5,000 bail. Chavez failed to appear at his trial and the district court issued a bench warrant. Subsequently, the grand jury returned a two count indictment charging Chavez with failure to appear for trial in violation of 18 U.S.C. Secs. 3146, 3150.

Nine months later, Chavez was arrested. The drug and failure to appear indictments were consolidated. Prior to trial, Chavez moved unsuccessfully for disclosure of the manner of acquisition of the financial records obtained by Oregon officials and for suppression of those records. Chavez also moved unsuccessfully for examination of presentence reports of various government witnesses.

During the jury selection process at the beginning of the trial, Chavez moved to seat two Black jurors peremptorily challenged by the prosecutor. The district court denied this motion after the prosecutor offered an explanation for the challenges.

The government's case consisted of the testimony of twenty-one former associates of Chavez, nineteen of whom had been given immunity, and eleven other non-immunized witnesses, including court personnel, law enforcement officers, and bank officials. Chavez did not call witnesses or testify. His defense consisted of challenges to the credibility of government witnesses and in allegations that the government was politically motivated in bringing the prosecution against him. The district court denied Chavez the opportunity to elicit home addresses of some of the government witnesses during cross-examination, but allowed him to obtain this information out of the presence of the jury.

During his closing remarks, Chavez's attorney admitted that his client was guilty of failing to appear for his earlier trial, but charged that the prosecution for the drug activities was politically and racially motivated. At the end of his remarks, Chavez got up from his seat and approached Hingson, his attorney. Hingson then shook Chavez's hand and wished him good luck.

The prosecutor stated in his rebuttal argument that he had been accused during trial of racism and bigotry and stated that "If I am the Devil, Mr. Chavez is the same." Chavez's objection to this comment was sustained and the jury instructed to disregard the remark. The prosecutor's argument also included a reference to the hand-shaking incident: "At the end of Mr. Hingson's comments to you, Mr. Chavez came over and they shook hands, something that can't be cross-examined or commented on. But I submit to you, ladies and gentlemen--" Chavez objected to this remark, but was overruled, and his mistrial motion, motion to strike, and request for a cautionary instruction were later denied.

The jury returned with verdicts of guilty on nine of the eleven drug counts and both of the failure to appear counts against Chavez. Chavez timely appealed.

II

Chavez argues that the district court erred in denying him the opportunity to establish that state officials seized financial records used against him at trial in violation of Oregon law. Specifically, he argues that the district court erred in denying his precautionary motion to suppress the records without affording him an evidentiary hearing on the question of the legality of the state seizure.

Chavez did not argue, either in the district court or on appeal, that the records were obtained in violation of any federal constitutional or statutory provision. Rather, Chavez claims that considerations of comity required suppression of the records if they were seized in violation of Oregon law, ¹ and that the district court erred in failing to grant him the opportunity to establish that a violation of state law occurred.

The government responds on appeal, as it did in the district court, that under rule 402 of the Federal Rules of Evidence, relevant evidence is admissible in a federal prosecution unless prohibited by the federal Constitution, a federal statute, or the Federal Rules of Evidence. It reasons that because a violation of state law is irrelevant to the admissibility of evidence in a federal prosecution, Chavez was not entitled to an opportunity to establish that violations of state law occurred. The district court denied Chavez's precautionary motion to suppress without holding an evidentiary hearing on the question whether the seizure violated Oregon law, apparently agreeing with the government that federal standards, rather than Oregon law, governed the admissibility of the financial records obtained by state officials.

Chavez also argues that he was entitled to discovery of the manner in which state officials acquired his financial records. As we understand it, this argument is premised on the theory that federal prosecutors are obliged to assist a defendant in his efforts to determine the legality of a seizure of evidence by state officials and therefore must obtain documents and things pertaining to the seizure from state officials and turn these items over to him. The district court denied Chavez's discovery motion, apparently accepting the government's argument that federal prosecutors have no obligation to acquire information pertaining to a seizure by state officials of evidence the government plans to introduce at trial.

We are thus confronted with two issues: first, whether a federal trial court must afford a defendant an opportunity to establish that evidence obtained by state officers was seized in violation of state law where the defendant fails to allege a violation of any federal constitutional or statutory provision; and second, whether the United States Attorney is obliged to obtain from state officials information relating to the seizure of evidence he or she plans to introduce against the defendant. The first of these issues turns on whether federal or state law governs the admissibility of evidence seized by state officials in a federal prosecution. If federal law governs, a violation of state law is irrelevant to the admissibility of the evidence and the district court thus correctly denied Chavez's suppression motion without affording him an evidentiary hearing on the legality of the seizure under state law. The second issue turns on the scope of the government's disclosure obligations under Fed.R.Crim.P. 16(a).

A.

We first address Chavez's argument that the district court erred in holding that federal courts are not to be bound by state law in determining the admissibility of evidence seized by state officials. The admissibility in federal court of evidence seized in violation of state law is a question of law. We thus review the district court's decision to admit evidence possibly seized in violation of Oregon law de novo. United States v. Frazin, 780 F.2d 1461, 1467 (9th Cir.) (Frazin ), cert. denied, --- U.S. ----, 107 S.Ct. 158, 93 L.Ed.2d 98 (1986).

We have consistently held that evidence obtained by federal officials acting in concert with state officials in violation of state law but in compliance with federal law is admissible in federal court. See United States v. Kovac, 795 F.2d 1509, 1511-12 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 951, 93 L.Ed.2d 1000 (1987); United States v. Henderson, 721 F.2d 662, 664 (9th Cir.1983) (per curiam) (Henderson ), cert. denied, 467 U.S. 1218, 104 S.Ct. 2665, 81 L.Ed.2d 370 (1984); United States v. Adams, 694 F.2d 200, 201 (9th Cir.1982), cert. denied, 462...