U.S. v. Espinoza

• Decision Date: 05 February 1981
• Docket Number: No. 79-5035,79-5035
• Citation: 641 F.2d 153
• Parties: 7 Fed. R. Evid. Serv. 1438 UNITED STATES of America, Appellee, v. Joseph Jesse ESPINOZA, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 153

641 F.2d 153

7 Fed. R. Evid. Serv. 1438

UNITED STATES of America, Appellee, v. Joseph Jesse ESPINOZA, Appellant.

No. 79-5035.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 8, 1980.

Decided Feb. 5, 1981.

Roger Jon Diamond, Pacific Palisades, Cal. (Hecht, Diamond & Greenfield, Pacific Palisades, Cal., on brief), for appellant.

E. Leslie Hoffman, III, Asst. U. S. Atty., Charleston, W. Va. (Robert B. King, U. S. Atty., James S. Arnold, Asst. U. S. Atty., Charleston, W. Va., on brief), for appellee.

Before HALL and PHILLIPS, Circuit Judges, and STAKER, District Judge. ^*

STAKER, District Judge:

Joseph Jesse Espinoza, appellant here, and J-E Enterprises, Inc., a California corporation (J-E), were jointly indicted and tried, and each was found guilty and convicted, in the United States District Court for the Southern District of West Virginia, at Charleston, upon each of two counts, the first charging that in violation of 18 U.S.C. § 371, they conspired with each other and others to, and the second that in violation of 18 U.S.C. § 2, they aided and abetted each other and others to, transport in interstate commerce from California to Charleston, West Virginia, obscene films and magazines concerning and involving children, commonly called "kiddie porn," in violation of 18 U.S.C. § 1465. On appeal of his conviction Espinoza assigns constitutional and other errors. We affirm.

J-E did not appear at the trial nor at any of the proceedings had under the indictment.

The following is a brief narrative of some of the evidence:

Clifford J. Holdren, Jr., owner-operator of Kip's Discount, a retail outlet dealing in sexually explicit matter in Charleston, West Virginia, testified that in response to an order for kiddie porn placed by him in a telephone conversation with "Joe," at J-E's place of business in California, the items of kiddie porn mentioned in the indictment, consisting of magazines and films, were shipped from J-E in California, to Kip's Discount in Charleston, by Greyhound Bus and that in March, 1977, he delivered to Special Agent Robert Sylvester, of the Federal Bureau of Investigation (FBI), those items of kiddie porn and invoices, cancelled checks and other documents pertaining to that transaction.

Espinoza's defense was that he could not be guilty of the charges, because throughout the period from the fall of 1976 to the spring of 1977, that being the period in which the violations were charged to have occurred, he was not involved in or with J-E's business operations to the extent that he could have been implicated in, or even aware of, those violations if they did, in fact, occur. He testified that he caused J-E to be incorporated in April, 1974, for the purpose of wholesaling and distributing adult-oriented, sexually explicit matter from a building housing J-E's warehouses and Espinoza's office, located at 1032 South Gerhart Avenue, Commerce, California (warehouse), and then became J-E's president; that during the ensuing year, he commenced several other businesses; ¹ that sometime during the year 1975, he resigned as the president and an officer of J-E, but continued to maintain his office in the warehouse, from which he managed and attended to those other businesses; and that upon his resignation, he was succeeded by Manuel Lopez, who commenced to manage and operate J-E as its president, after which he, Espinoza, no longer helped or assisted J-E at all, though Espinoza admitted in other testimony that from time to time he did assist J-E as aid might be needed in J-E's rubber department, talked on the "phone" about certain aspects of J-E's business in terms of goods ordered and shipped, and occasionally handled invoices of J-E. He further testified that in about March, 1977, Manuel Lopez disappeared and ceased his affiliation with J-E, whereupon he, Espinoza, resumed its management and operations.

I.

Prior to trial Espinoza moved, pursuant to Rules 21(b) and 22 of the Federal Rules of Criminal Procedure (F.R.Cr.P.), that the venue of his cause be transferred from the Southern District of West Virginia to the Central District of California.

Filed with and in support of that motion were Espinoza's and his counsel's affidavits asserting that he could not financially afford the expense of causing himself, his counsel and his California witnesses to appear in West Virginia for trial, that all of them would be greatly inconvenienced if they were required to do so and that it would be virtually impossible for him to receive a fair trial in West Virginia, given his limited financial resources.

The court conducted an ex parte proceeding, pursuant to Rule 17(b), F.R.Cr.P., ² at which Espinoza's counsel was requested to reveal to the court the identity of those witnesses and generally what testimony they were expected to give at trial, all for the limited purpose of enabling the court to determine which of them necessarily must, and which need not, be subpoenaed at government expense to be present at Espinoza's trial for his adequate defense. Espinoza's counsel complied with the court's request "under protest." The court took effective steps to assure that all such revelations made by Espinoza's counsel would, as they did, remain further undivulged and inviolate.

Espinoza here asserts that the court erred in compelling him to disclose his defense in order for him to obtain subpoenas at government expense. He argues that he, as an indigent defendant, was lawfully entitled to have witnesses subpoenaed to testify in his defense at government expense without his being required to reveal to the court what the testimony of those witnesses would be, in the same manner as a non-indigent defendant has the right to subpoena witnesses in his defense at his own expense without being so required, and that the court's requiring him to divulge the testimony of his witnesses for that limited purpose constituted the court's compelling him to disclose his defense in violation of his Sixth Amendment right to compulsory process and his Fifth Amendment right to due process of law.

Under the procedure prescribed by Rule 17(b), prior to the 1966 amendment thereof, ³ before the court could order a subpoena to be issued at government expense for a witness to testify in defense of an indigent defendant, the defendant was required to make a motion or request supported by an affidavit stating the name and address of, and the testimony expected to be elicited from, each witness that he desired so to testify, and that such testimony was material to his defense. That procedure was not conducted ex parte, and some asserted it to be constitutionally objectionable in that it practically operated to compel an indigent defendant to disclose in advance the theory of his case to his government adversary. That procedure evoked just criticism, ⁴ because while each of the government and a defendant able to pay for subpoenas were permitted to have subpoenas issued in blank without being required so to disclose, an indigent defendant was so required.

Rule 17(b), as amended in 1966, provides in pertinent part that "(t)he court shall order ... that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the ... presence of the witness is necessary to an adequate defense." That 1966 amendment removed the constitutionally objectionable procedure from the provisions of Rule 17(b), as it theretofore provided, and substituted the constitutionally unobjectionable procedure of permitting such disclosure to be made to the court ex parte, thus assuring that the government not become privy thereto.

Indeed, while this Court deprecates departure from the ex parte requirement of the procedure prescribed by Rule 17(b), as amended, departure therefrom in a manner which results in disclosure of the theory of an indigent defendant's defense to the government does not always constitute prejudicial error. See United States v. Panczko, 429 F.2d 683, 689 (7th Cir. 1970), cert. denied, 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed.2d 252 (1970); United States v. Smith, 436 F.2d 787, 790 (5th Cir. 1971), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971).

Here, the court strictly complied with the ex parte procedure mandated by Rule 17(b), as amended, in consequence of which any disclosure by Espinoza of his defense was made to the impartial court only, and not to his government adversary. Hence, his Fifth and Sixth Amendment rights were not thereby violated, as he asserts, nor was he prejudiced by the court's actions.

II.

At that Rule 17(b) ex parte proceeding, the court found that of twenty-nine witnesses for whom Espinoza requested subpoenas at government expense, the presence of twenty-five of them was reasonably necessary to his adequate defense and ordered that at government expense subpoenas be issued in blank for his use to require their presence.

During that proceeding, Espinoza's counsel stated that while Espinoza was "still involved somewhat as an employee," he was not the "one in charge," of J-E during the period as charged, and contended that the presence of the four other of the twenty-nine witnesses was necessary for his adequate defense, because they would be able to explain certain public documents and records as well as to testify that Manuel Lopez, rather than Espinoza, actively represented J-E as its president in J-E's transactions evidenced by those documents and records, and that counsel was "afraid that the jury would lose the impact of the evidence if it merely came in the form of a document."

The court found that the presence of the other four witnesses, all public officials, was not so necessary, because their sole purpose at trial would have been to present self-authenticating documents and records, the admission of which into evidence would have provided the evidence to which those witnesses assertedly would have testified, and...