U.S. v. Gaytan, 96-10345
| Decision Date | 18 June 1997 |
| Docket Number | No. 96-10345,96-10345 |
| Citation | 115 F.3d 737 |
| Parties | 97 Cal. Daily Op. Serv. 4580, 97 Daily Journal D.A.R. 7601 UNITED STATES of America, Plaintiff-Appellant, v. Anibal Ramiro GAYTAN; Jesus Avmando Portillo; and Roman Hector Mungia-Meza, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Georgia B. Ellexson, Assistant United States Attorney, Phoenix, AZ, for plaintiff-appellant.
Susan Bryson Fox, Ralls, Valenzuela, Fox & Jones, P.C., Robert Clayton Hernandez, and Homero Torralba, Nelson & Torralba, Tucson, AZ, for defendants-appellees.
Appeal from the United States District Court for the District of Arizona; Richard M. Bilby, Chief District Judge, Presiding. D.C. No. CR-95-00010-RMB.
Before: REINHARDT, HALL and THOMPSON, Circuit Judges.
Following the district court's dismissal of this case with prejudice during the course of the trial, on account of a Brady violation, we reversed and remanded. We left open the question whether the Double Jeopardy Clause barred further prosecution. The district court held that it did and dismissed the indictment once again. We must now determine whether the district court erred in dismissing the case a second time.
Following a federal grand jury indictment of Anibal Gaytan, Jesus Portillo and Roman Munguia-Meza 1 for conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), all three defendants filed initial motions for government disclosure of exculpatory information regarding confidential informants pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In its written response, the government asserted that it was free to withhold this information if it believed that the informants needed to be protected. Furthermore, it stated that it was the defendants' burden to show that the information was relevant to their defense. Moreover, the government stated that it "ha[d] already gone beyond that [which is] required by [Brady] and [had] ma[de] available the investigatory file in this case." The government added, finally, that it was not "require[d] to create exculpatory evidence."
At the hearing on the defendants' motions, the government again stated that it had exceeded the requirements of Brady. It also stated that the identity of the confidential informant, when revealed, would not lead to extensive investigation by the defense because "he has no prior arrests, ... [and] there's not going to be a whole lot of snooping."
The district court reminded the government that all Brady material regarding the confidential informant must be produced at least one week prior to trial. The district court further stated that if newly disclosed information required any additional investigation by the defense, it would grant a continuance. Because the government assured the court that it would comply with its Brady obligations, the court denied defendants' motions without prejudice.
The defendants continued to file motions regarding the government's lack of disclosure of information about its witnesses and confidential informants. 2 What most concerned them was the government's apparent lack of disclosure about possible informants Hector Minjarez and Fernando Carrette. At the hearing on the motions held shortly before trial, defendants argued vigorously for disclosure of Brady material regarding the two potential informants, as well as other witnesses. Gaytan asserted that four days earlier he and the other defendants had been informed that Carrette was a confidential informant and that he would be testifying. 3 At that time, the government told the defense that five years prior to the transactions involved in the current prosecution, Carrette had used cocaine. Gaytan informed the court that he suspected, but could not prove, that Carrette and Minjarez had been engaged in conducting drug transactions together during the period in which the charged conspiracy had allegedly occurred. He expressed concern that Minjarez was actually the person who had put the entire deal together and that the government was not disclosing this information to the defense. The government then admitted that Carrette had agreed to be a confidential informant in order to "work off some of [Minjarez'] beef." Gaytan also expressed concern that another of the government's witnesses, Elizabeth Walker, Minjarez' sister, had been offered the opportunity to have an arrest expunged in exchange for testimony in the case. The district court responded:
While the government did concede that Minjarez was "the conduit who introduced Mr. Gaytan to the CI (Carrette) once a year ago and then coincidentally the CI was in there the day Gaytan came in to do business and it went from there," it assured the court that Minjarez was not a big part of the deal. The court warned the government that it would "throw the case out" if Minjarez was the "big shot behind all of this."
At trial, Agent Thornhill testified for the government that prior to the commencement of the investigation of the defendants Carrette had approached him about becoming a confidential informant in order to obtain "consideration for his friend" Minjarez, who was the subject of a Drug Enforcement Agency (DEA) investigation. He further testified that during this same time period Minjarez had been trying to put a marijuana deal together in order to help his own case with the DEA. Thornhill also acknowledged During direct examination the next day, Carrette revealed that he had guarded stash houses and also acted as a bodyguard in various drug deals. He further confessed to having snorted cocaine and consumed alcohol with defendant Gaytan the night before the initial meeting with Agent Thornhill and Minjarez. Following Carrette's direct examination, Gaytan requested a sidebar to discuss the witness's prior involvement in the drug business. The court again stated that it would consider the matter later.
that it was Minjarez who had ordered the two-way radios that were used to communicate between the vehicles during the drug transaction involved in the instant prosecution. During the noon recess, Gaytan and Portillo moved for additional disclosure regarding the extent of Minjarez's involvement in the activities underlying their prosecution. 4 The court observed that Minjarez was involved to a greater degree than the government had previously revealed, but stated that it would address a possible in camera disclosure at the end of the day
During cross-examination, Carrette testified that he had been armed while serving as a stash house guard and also while serving as a bodyguard. Furthermore, Carrette testified that he had informed the Assistant United States Attorney of all of his activities in the drug trade during their initial meeting. After sustaining the government's objection to a question asking Carrette to summarize a series of events, the court declared a lunch break. When the jury had left the courtroom, the judge asked Gaytan if he wanted to make a motion. Gaytan deferred to Portillo who stated that they both had a motion. Portillo then launched into a discussion of their prior efforts to obtain disclosure of information regarding Carrette and reiterated his earlier complaints regarding the government's conduct. Before any motion was made, the court interrupted and the following dialogue occurred:
The court then asked the Assistant United States Attorney whether she had disclosed to the defendants that Carrette had been in the drug business. She stated that she had known of Carrette's drug involvement both with respect to the use of drugs and the armed guarding of the stash houses, but that she had told the defendants only about the prior use. She explained that she thought that she only had to reveal information pertaining to "credibility and veracity" of the informants. After a brief exchange, the court stated:
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