U.S. v. Haro-Espinosa
| Decision Date | 21 November 1979 |
| Docket Number | 78-3349 and 78-3388,RUIZ-CHAVE,A,VELASQUEZ-RAMIRE,Nos. 78-3341,78-3361,HARO-ESPINOS,DIAZ-SAMANIEG,s. 78-3341 |
| Citation | 619 F.2d 789 |
| Parties | 6 Fed. R. Evid. Serv. 1248 UNITED STATES of America, Appellee, v. Andresppellant. UNITED STATES of America, Appellee, v. Ernestoppellant. UNITED STATES of America, Appellee, v. Porfirioppellant. UNITED STATES of America, Appellee, v. Luis Carlosppellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Domingo R. Quintero, Sheldon D. Sherman, Stuart L. Smits, San Diego, Cal., argued for appellants; Juanita J. Brooks, Philip A. DeMassa, Michael Pancer, San Diego, Cal., on brief.
William A. Bower, Asst. U. S. Atty. (on the brief), Michael H. Walsh, U. S. Atty., William A. Bower, Asst. U. S. Atty. (argued), San Diego, Cal., for appellee.
Appeal from the United States District Court for the Southern District of California.
Before HUFSTEDLER and GOODWIN, Circuit Judges, and KELLEHER *, District Judge.
Appellants Haro-Espinosa (Haro), Diaz-Samaniego (Diaz), Velasquez-Ramirez (Velasquez), and Ruiz-Chavez (Ruiz) were convicted of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846. Haro and Ruiz were also convicted of possession of 4.4 pounds of cocaine with intent to distribute, in violation of 21 U.S.C § 841(a)(1). A fifth defendant, Luis Gonzales, stood trial with the four appellants but is not a party to this appeal. A sixth defendant, Abel Rodriguez, pleaded guilty to the indictment and did not stand trial. Appellants assert numerous errors. We affirm the convictions.
On June 1, 1978, DEA Special Undercover Agent Licon was introduced to Stanley Flores, who told Licon that he could arrange a delivery of cocaine. Through Flores, Licon met codefendant Gonzales, and eventually purchased an ounce of cocaine from him as a sample.
On June 8, Licon again met with Gonzales, who told Licon that his sources had recently brought three kilograms of cocaine in from Mexicali and could deliver another four when those were sold. Licon arranged to meet Gonzales and one of his "sources" the following day. The next day, Gonzales introduced Licon to Haro, and Licon agreed to purchase 2.5 kilograms of cocaine from Haro.
After the meeting, Gonzales and Haro drove to a local motel and entered a room that had been rented to Abel Rodriguez. Rodriguez left the room a short while later, carrying a shopping bag, and drove to a residence (where Licon had first been introduced to Gonzales).
On June 15, Licon and Gonzales arranged to meet the following day to complete the sale of 3 kilograms of cocaine. On June 16, DEA agents watched Rodriguez leave Gonzales' residence in his Volkswagen, drive back to the motel where he had previously met with Gonzales and Haro, and enter a room that had been rented by appellant Diaz. Almost immediately thereafter, Rodriguez, carrying a brown box, left the room with four other persons. After some discussion, Diaz and Velasquez drove away in Rodriguez's Volkswagen, while Rodriguez placed the box in the trunk of Diaz's Chevrolet and drove with Ruiz to his own residence.
A short while later, Licon met with Gonzales and Haro as arranged the day before. Haro remained at the meeting place with two other DEA agents, Licon's "associates", to take delivery of the purchase money after Licon had seen and tested the cocaine. Gonzales and Licon drove to Rodriguez's house, where he and Ruiz were waiting.
Inside the house, Licon saw four packages containing cocaine sitting next to an empty cardboard box that resembled the one Rodriguez had placed in the trunk of the Chevrolet. A later search of the Chevrolet revealed that the box in the trunk had been removed. While Licon prepared to test the cocaine, Gonzales told Ruiz about the terms of the transaction, whereupon Ruiz insisted that no cocaine could leave the house until the money arrived. Licon agreed to this change from the terms he had agreed upon with Haro and Gonzales.
When Licon remarked that there appeared to be only two kilograms of cocaine present, Rodriguez said that there was more locked in the bedroom but that his wife had the key. At Licon's request, Rodriguez went to his wife's place of employment to get the key, and Licon tested the cocaine. After determining that it was a controlled substance, Licon gave the signal for the arrests to begin.
Haro was arrested at the airport, Ruiz and Gonzales in the house with the cocaine, and Rodriguez in a nearby market. Velasquez and Diaz were arrested at the restaurant to which they had repaired after leaving the motel room earlier in the day. At the time of his arrest, Velasquez had in his pockets the key to Rodriguez's Volkswagen, the key to the motel room rented by Diaz, and an identification card listing his residence as Mexicali, Mexico.
Appellants Diaz, Velasquez, and Ruiz contend that they were prejudiced by the district court's refusal to sever their trials from that of codefendant Gonzales. Velasquez and Ruiz had moved for severance. Velasquez argued that Rodriguez would provide exculpatory testimony at a separate trial. Ruiz argued that Gonzales would exculpate him. The court made no decision on the motions at the hearing, stating that neither moving defendant had made an adequate showing that exculpatory evidence would actually be forthcoming if the trials were severed. The court reserved the question. On the morning of trial, appellants Diaz, Velasquez, and Ruiz moved to sever, again asserting the possibility of exculpatory evidence from codefendants. In aid of the motions, Gonzales stated that he would testify if called by appellants, but only if he was tried first, or if the government would agree that his testimony would not be used against him at his own subsequent trial. The court stated that it was willing to sever Gonzales, but ruled that his trial would have to follow that of the other defendants. Gonzales was on bond, while the multiple defendants awaiting trial were in custody, and their trials were subject to the sanctions of the Speedy Trial Act, 18 U.S.C. §§ 3152-3174.
When counsel for Gonzales objected that the proposed order of trial would deny him any benefit from the severance, the district judge questioned Gonzales in chambers and determined that Gonzales would stand on his Fifth Amendment rights if his trial followed his testimony. An offer of proof was then made on behalf of appellants through their counsel. Counsel for Diaz represented that Gonzales would testify that he did not know Diaz and that Diaz was not involved in any business with him. Counsel for Velasquez represented that Gonzales would testify to the same effect for his client. Counsel for Ruiz represented that Gonzales would testify that Ruiz did not make the statements attributed to him by Licon (that the cocaine would not leave the house until the money arrived; or another statement regarding the quantity of cocaine). The district court refused to examine Gonzales further in camera and denied the severance.
A motion for severance is addressed to the trial court's discretion, and a defendant bears a heavy burden in attempting to show that the trial court abused that broad discretion. See United States v. Vigil, 561 F.2d 1316, 1317 (9th Cir. 1977). When the reason for the severance motion is the alleged need for a codefendant's testimony, the moving defendant must show: (1) he would call the codefendant to testify at a severed trial; (2) the codefendant would in fact testify; and (3) the testimony would be favorable to the moving defendant. See United States v. Vigil, supra; United States v. Wood, 550 F.2d 435, 438-39 (9th Cir. 1976).
Under United States v. Gay, 567 F.2d 916, 918-20 (9th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1655, 56 L.Ed.2d 90 (1978), a trial judge may refuse to sever the trials of multiple defendants on the basis of exculpatory testimony which would be given by a codefendant, when that codefendant conditions his offer to testify upon the order of the trials. In this case, the trial judge had good reason for refusing to try Gonzales first. The other defendants were in custody, and Gonzales was on bond. Trying Gonzales first would have created problems under the Speedy Trial Act. It is clear that in relying on United States v. Gay, supra, and in denying the severance the trial court did not abuse its discretion.
Appellant Velasquez further contends that the district court erred in denying his motion for a new trial under Rule 29(c), on the ground that the government had failed to disclose exculpatory evidence obtained in an interview with Rodriguez. Rodriguez allegedly stated that Velasquez and Diaz were not involved in the cocaine transaction; Velasquez contends that this testimony was Brady material that should have been disclosed to his counsel. See Brady v. Maryland, 373 U.S. 83, 86-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 1
Although the suppression of evidence favorable to an accused may violate due process, an important element in the Brady rule is that the defendant make a request for the exculpatory material. See Moore v. Illinois, 408 U.S. 786, 794, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); United States v. Palmer, 536 F.2d 1278, 1280 (9th Cir. 1976). In the instant case, no request for the information was ever made, although the record indicates that both Velasquez and Diaz were aware of the possibility that Rodriguez could provide exculpatory testimony. In these circumstances, the failure to make a request or at least an independent inquiry cannot be ignored. See United States v. Stewart, 513 F.2d 957, 960 (2d Cir. 1975); United States v. Tramunti, 500 F.2d 1334, 1349-50 (2d Cir. 1974). The motion for a new trial was properly denied.
Appellants Velasquez and Diaz also contend that the evidence was insufficient to support the jury verdicts of guilty on the conspiracy counts. Viewing...
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