U.S. v. Dupuy

Decision Date22 May 1985
Docket Number83-1227 and 83-1214,Nos. 83-1213,s. 83-1213
Citation760 F.2d 1492
Parties17 Fed. R. Evid. Serv. 1530 UNITED STATES of America, Plaintiff-Appellee, v. Albert DUPUY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Christie BUZARD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio TERCERO, Defendant-Appellant. C.A.
CourtU.S. Court of Appeals — Ninth Circuit

Daphne Budge, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

William G. Walker, Stomploy & Even, P.C., Tucson, Ariz., Stephen A. Gerst, Michael J. Cohen, Cohen, Gerst, Groseclose & Meissner, Phoenix, Ariz., Walter B. Nash, III, Tucson, Ariz., for defendant-appellant.

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

Before FERGUSON and NELSON, Circuit Judges, and JAMESON, * District Judge.

JAMESON, District Judge:

Appellants Albert Dupuy, Christie Buzard, and Antonio Tercero were indicted, with 20 others, in a 24-count indictment charging all defendants with conspiracy, and each appellant with substantive offenses, in the importation and distribution of marijuana and cocaine. Dupuy was convicted on six counts, Buzard on five counts, and Tercero on four counts.

I. Factual Background and Proceedings Below

The indictment resulted from an agreement between appellants and others to transport approximately 18,000 pounds of high-quality marijuana, valued at 11 million dollars, from Central Mexico to Northern Mexico for distribution in the United States. The facts encompass a three-month period from July 31, 1980 to October 23, 1980. The facts relevant to this appeal will be presented in detail in discussing each contention of the respective parties.

The Government's case rested primarily on the testimony of an informant, Larry Jackson, who had been an active participant in the conspiracy. Jackson testified that he had made a career of marijuana trafficking for nine years, beginning in 1971. He began to cooperate with the Drug Enforcement Administration (DEA) sometime after the conclusion of the conspiracy involved in this appeal.

Count I of the indictment, filed on September 29, 1982, charged appellants and others with conspiracy to possess with intent to distribute marijuana, to distribute marijuana and to use communications facilities to facilitate a drug offense, in violation of 21 U.S.C. Sec. 846.

Dupuy was charged further in Counts III and VII with interstate travel in aid of racketeering enterprises, in violation of 18 U.S.C. Sec. 1952; in Count VI with possession with intent to distribute 100 pounds of marijuana and aiding and abetting, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; in Count XIV with importation of 200 pounds of marijuana and aiding and abetting, in violation of 21 U.S.C. Secs. 960(a)(1) and (b), and 952(a), and 18 U.S.C. Sec. 2; and in Count XV with possession with intent to distribute 200 pounds of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1).

Buzard was charged further in Count XVIII with possession with intent to distribute 100 pounds of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1); and in Counts XIX and XX with possession with intent to distribute one-half ounce of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1).

Tercero was charged further in Count VIII with interstate travel in aid of racketeering enterprises, in violation of 18 U.S.C. Sec. 1952; in Counts IX, X, and XI with possession with intent to distribute cocaine and aiding and abetting, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; in Count XIII with possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1); and in Count XIV with importation of 200 pounds of marijuana and aiding and abetting, in violation of 21 U.S.C. Secs. 960(a)(1), 952(a), and 18 U.S.C. Sec. 2.

Trial commenced on June 15, 1983. The Government's case in chief took 10 days of testimony. The informant Jackson's direct testimony continued for four days, and his cross-examination for five days.

On July 6, the court entered a judgment of acquittal as to Tercero on Counts X, XI, and XIV. On July 12 the jury returned verdicts of guilty as to all three appellants on the remaining counts.

II. Contentions on Appeal

All of the appellants contend 1 that

(1) the failure of the prosecution to provide properly discernible impeachment material until well after the cross-examination of the Government's key witness mandates a reversal under the Jencks Act;

(2) the district court denied appellants their Sixth Amendment right to compel the testimony of witnesses by refusing to allow them to call the prosecutor at trial to impeach Jackson's testimony regarding critical issues; and

(3) the court's failure to grant a continuance, strike Jackson's testimony, or grant other sanctions for the Government's violation of Rule 12.1, Fed.R.Crim.P. 12.1, denied appellants their Fifth and Sixth Amendment rights.

In addition appellant Tercero contends that

(4) the district court erred in denying Tercero's request to call the attorneys of two co-defendants as witnesses of his line-up identification; and

(5) the evidence on Count IX was insufficient to warrant his conviction.

(6) Finally, all of the appellants contend that the district court erred in allowing the prosecutor to withhold exculpatory information pursuant to her duty under Brady v. Maryland, on the ground that she had promised two co-defendants that their conversations with her would be "secret".

III. Jencks Material

Appellants contend that the Government failed to provide properly discernible impeachment material until well after the cross-examination of informant, Larry Jackson, the Government's key witness. The Jencks Act, 18 U.S.C. Sec. 3500, gives defendants the right to inspect all documents containing statements of a government witness which relate to the subject matter of that witness's testimony. This disclosure is required for impeachment purposes only. United States v. Polizzi, 500 F.2d 856, 893 (9th Cir.1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975). Failure to comply with the Jencks Act may result in striking the testimony, 18 U.S.C. Sec. 3500(d), United States v. Birrell, 421 F.2d 665, 667 (9th Cir.1970), or even reversal of the conviction, 18 U.S.C. Sec. 3500(d), Sperling v. United States, 692 F.2d 223, 227 (2d Cir.1982).

The prosecution had overlooked, until after Jackson testified, an edited version of a statement made by Jackson. The defendants had access to the original unedited version of the statement. Upon discovering the edited statement, which had only a few variations from the unedited version, the prosecutor gave copies to defense counsel. The report showed that the edited version had been read by Jackson. The defendants moved to strike Jackson's testimony or to declare a mistrial.

The court denied both motions, finding that the prosecutor had acted in good faith and that the late disclosure of the edited version did not prejudice the defendants. The court, in making this ruling, found that although the document would impeach Jackson, the defense already had "as extensive impeaching material as this court has ever encountered in over 30 years of experience." Even though the court found that "any further evidence is really superfluous" it allowed the defendants to further cross-examine Jackson. The second cross-examination filled 68 pages of transcript. Buzard and Dupuy contend that the court erred and that a reversal of the convictions is mandated. The district court's finding of no prejudice is reversible only if it is clearly erroneous. Campbell v. United States, 373 U.S. 487, 495, 83 S.Ct. 1356, 1361, 10 L.Ed.2d 501 (1963).

The appellants are not claiming that there was no disclosure, but rather that the delayed disclosure was prejudicial. In a similar situation, this Circuit has concluded that untimely disclosure does not require striking a witness's testimony or calling a mistrial where the defendant is not prejudiced and the untimely disclosure was not "willful avoidance and egregious dereliction of the prosecutor's statutory obligation." Polizzi, 500 F.2d at 893. Furthermore, "[t]he administration of the Jencks Act is entrusted to the 'good sense and experience' of the district judge 'subject to appropriately limited review of appellate courts.' " United States v. Parker, 549 F.2d 1217, 1224 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977).

In this case, during the course of the first cross-examination, which lasted five days, the defendants brought out extensive impeaching evidence, including Jackson's propensity to lie and his mistreatment of his wife. The court found that the inconsistencies between Jackson's original statement and his present testimony would only serve to show that Jackson was indeed prone to lie. In addition, the defendants had access to the unedited version and had used it in the original cross-examination. The court's conclusion that the late disclosure did not prejudice the defendants is not clearly erroneous.

The court's finding that the prosecutor had acted in good faith was based upon the prosecutor's prompt disclosure (within a few hours) upon discovery of the document. The late discovery was due to the volume of the documents and the fact that a case agent had been directed to go through the file and make copies of all pertinent documents to give to the defendants. Although he found the unedited version, he failed to discover the edited version. This oversight could not be labeled as a "willful avoidance and egregious dereliction of the prosecutor's statutory obligation." Cf. Polizzi, 500 F.2d at 893. Neither a mistrial nor a striking of Jackson's testimony was required.

IV. Prosecutor as Witness

Appellants next contend that the district court violated their Sixth Amendment right to compel the testimony of witnesses by...

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