U.S. v. Fowlie

• Decision Date: 02 May 1994
• Docket Number: No. 91-50383,91-50383
• Citation: 24 F.3d 1059
• Parties: 40 Fed. R. Evid. Serv. 936 UNITED STATES of America, Plaintiff-Appellee, v. Daniel James FOWLIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1059

24 F.3d 1059

40 Fed. R. Evid. Serv. 936

UNITED STATES of America, Plaintiff-Appellee, v. Daniel James FOWLIE, Defendant-Appellant.

No. 91-50383.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1993.

Decided May 2, 1994.

William J. Kopeny, James D. Riddet, and Cherif Bassiouni, Santa Ana, CA, for defendant-appellant.

Patrick W. McLaughlin and Jonathan S. Shapiro, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee.

Appeal from United States District Court for the Central District of California.

Before: FARRIS, NORRIS, and REINHARDT, Circuit Judges.

Opinion by Judge REINHARDT.

REINHARDT, Circuit Judge:

In this appeal we consider Daniel James Fowlie's challenges to the lawfulness of his extradition, the propriety of certain proceedings before the grand jury, the rejection of his motion to suppress evidence, the exclusion of certain evidence he sought to introduce at trial, the denial of his motion for a continuance, and the sentence imposed by the district court. In light of the government's concession that the district court erred in sentencing Fowlie for both a continuing criminal enterprise and a lesser-included offense, we vacate Fowlie's conviction on count 2, conspiracy to possess marijuana with intent to distribute. Because we find that Fowlie's other claims lack merit, we affirm his convictions on counts 1, 12-14, and 20. ¹

I. Factual Background and Proceedings

Between 1981 and 1986 appellant Fowlie built and oversaw an organization that delivered tons of Mexican marijuana throughout the United States and Canada. Fowlie's organization was dealt a serious blow in March 1985 when Orange County (California) Sheriff's Department officers executed a search warrant at his California ranch and seized certain property. The officers seized rolls of plastic packaging material, a heat sealing machine, a money counter, a counterfeit bill detector, a device used to determine whether an individual is wearing a transmitter, two bullet proof vests, and an Uzi firearm with flash suppressor and clip. They also found marijuana residue in television-boxes and in a vacuum cleaner.

On November 30, 1988, a grand jury returned a 26-count indictment charging Fowlie with operating a continuing criminal enterprise (21 U.S.C. Sec. 848); conspiracy to possess marijuana with intent to distribute (21 U.S.C. Sec. 846); 17 counts of possession and distribution of marijuana (21 U.S.C. Sec. 841(a)(1)); conspiracy to defraud the United States by impeding the IRS and to avoid currency reporting requirements (18 U.S.C. Sec. 371); and five counts of failing to report currency transportation (31 U.S.C. Secs. 5316 & 5322(a)(b)). Fowlie was extradited from Rosarita Beach, Mexico, in July 1990, and trial commenced in March 1991. Many of the trial witnesses against Fowlie were former members of his drug ring who testified in exchange for governmental favors. Twenty counts of the indictment were submitted to the jury and it returned guilty verdicts on fifteen. In June 1991, Fowlie was sentenced to several consecutive and concurrent terms of imprisonment for a total of 30 years, and fined $1 million. He filed a timely notice of appeal.

II. The Extradition Challenge

Fowlie argues that under the doctrine of specialty the district court lacked jurisdiction over all counts of the indictment other than those pertaining to possession of narcotics with intent to distribute (counts 3-19). The specialty doctrine prevents the requesting nation from prosecuting an extradited individual for crimes other than those as to which the rendering state explicitly granted extradition. United States v. Khan, 993 F.2d 1368, 1373-74 (9th Cir.1993). Because the doctrine is based upon international comity, the extradited party may be tried for a crime other than that for which he was surrendered if the rendering country consents. United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988). In the absence of consent, an extradited person may raise whatever objections to his extradition the rendering country might have made. United States v. Cuevas, 847 F.2d 1417, 1426 (9th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185 (1989). At oral argument the government conceded that Fowlie has standing to object to his extradition on the grounds of a violation of the specialty principle. The district court conducted a lengthy hearing under Fed.R.Crim.P. 26.1, featuring expert testimony on Mexican judicial proceedings and rejected Fowlie's claim on the merits. We review the district judge's analysis of foreign law de novo. Khan, 993 F.2d at 1372.

The right to demand and obtain extradition is created by treaty. Id. at 429. Rather than kidnapping Fowlie as it might have done, see United States v. Alvarez-Machain, --- U.S. ----, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), the United States requested his extradition under its treaty with Mexico. ² It did so prior to obtaining an indictment. The Mexican government was provided with a declaration by an Assistant United States Attorney, the sworn statements of several witness, and two criminal complaints with contemporaneously issued arrest warrants. The first complaint charged Fowlie with a single count of violating 21 U.S.C. section 841(a)(1); the second complaint contained a total of 48 counts, including all those eventually set forth in the indictment. A Mexican district court rejected Fowlie's challenges to extradition and the Secretary for Foreign Affairs explicitly ordered him to be extradited on charges of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, conspiracy to possess marijuana, conspiracy to defraud the United States and continuing criminal enterprise. In these respects the extradition order was unambiguous.

Fowlie then challenged the decision of the Mexican district court in an amparo proceeding. "Amparo" is Spanish for "protection." Although the amparo is a highly complex legal institution, as Fowlie's expert witness on Mexican law testified, it is somewhat similar to habeas corpus and, inter alia, is the means to review and annul unconstitutional judicial decisions. See generally Richard D. Baker, Judicial Review in Mexico: A Study in the Amparo Suit (1971); Hector Fix Zamudio, A Brief Introduction to the Mexican Writ of Amparo, 9 Cal.W.Int'l.L.J. 306 (1979); Robert S. Baker, Constitutionalism in the Americas: A Bicentennial Perspective, 49 U.Pitt.L.Rev. 891, 906-07 (1988). An amparo court rejected Fowlie's claims of constitutional error, as did an appellate amparo court.

Nevertheless, Fowlie argues that the appellate amparo court implicitly limited his extradition to the possessory offenses. Fowlie relies on one sentence in the court's opinion: "In other words, in order to proceed on to the extradition thus requested there is no requirement that the offenses exist exactly in the legislation of both countries, but rather only one or several of them need be satisfied, as occurred in this case." This sentence follows a citation to 21 U.S.C. section 841(a)(1) as part of a discussion of whether the currency charges on which Fowlie was later indicted had counterparts under Mexican law. The government responds that 1) Fowlie misunderstands the nature of amparo review and 2) in any event the appellate amparo court did not modify the decisions of the district court and the lower amparo court, which permitted extradition on all of the offenses eventually charged in the indictment.

We agree that Fowlie misapprehends the significance of the appellate amparo decision and that the language he relies upon does not function as a limitation on the crimes described in the extradition order. Like habeas corpus, the amparo has a more limited scope than an appeal and determines whether the contested act violated a petitioner's constitutional rights. In other words, the amparo decisions had no bearing upon Fowlie's rights under the United States-Mexican extradition treaty, which were finally determined by the Mexican district court. The only question before the amparo tribunals was whether Fowlie's extradition was constitutional under Mexican law. They found that it was.

Moreover, the sentence that Fowlie highlights, when read in the context of the entire opinion of the amparo appellate court, simply does not restrict the scope of his extradition. It is the last sentence in an 18-page opinion that discusses and rejects as "groundless" Fowlie's challenges to his extradition on all charges. Fowlie's amparo appeal did not argue at any point that his extradition on possession of narcotics would alone be proper. Under the principle of stricti juris, an amparo court will look only to a plaintiff's specific complaints of constitutional violations. Baker, Judicial Review at 185-86. Therefore, the amparo appellate court would not have limited the grounds for Fowlie's extradition sua sponte. While the precise meaning of the sentence relied upon by Fowlie is not clear, our reading of the appellate court's decision as a whole convinces us that it did not, explicitly or implicitly, limit Fowlie's extradition to the possession charges. Accordingly, the district court correctly concluded that it had jurisdiction over all counts of the indictment.

III. Improper Appearance Before the Grand Jury

Fowlie next argues that the district court erred in denying his motion to dismiss on the ground that Special Assistant United States Attorney Sanford Feldman was unauthorized to represent the government in criminal proceedings due to a technically ineffective appointment. The government concedes that Feldman's presence before the grand jury constituted a violation of Fed.R.Crim.P. 6(d) ³ but argues that it was harmless. In response to Fowlie's motion and request for discovery regarding Feldman's role in the instant case, the district court ordered the...