U.S. v. Iglesias

• Decision Date: 15 August 1989
• Docket Number: No. 88-3052,88-3052
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pamela Mejia Armenta IGLESIAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1519

881 F.2d 1519

110 A.L.R.Fed. 299

UNITED STATES of America, Plaintiff-Appellee, v. Pamela Mejia Armenta IGLESIAS, Defendant-Appellant.

No. 88-3052.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 1989.

Decided Aug. 15, 1989.

Stephen M. Jacobson, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

Frank Noonan, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

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

Before TANG, BOOCHEVER and KOZINSKI, Circuit Judges.

TANG, Circuit Judge:

On January 28, 1988, pursuant to Fed.R.Crim.P. 11(a)(2), Pamela Iglesias entered a conditional guilty plea to a charge of possession with intent to distribute heroin, reserving her right to appeal the district court's denial of her motions to suppress and to compel discovery. We first determine whether the district court erred in refusing to suppress Iglesias' incriminating cash that was seized when police searched her sister's residence. Secondly, we decide whether the district court erred in ruling that Fed.R.Crim.P. 16(a)(1)(D) does not compel production by the government of certain internal documents. We affirm.

I. Factual and Procedural Background

On August 12, 1987, a grand jury handed down a seven-count indictment against Iglesias and Collins. Count VII charged Iglesias and Collins with possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1) to which Iglesias entered her conditional guilty plea. Judge Frye imposed a sentence of 12 years imprisonment followed by a Special Parole Term of 6 years. Iglesias is currently in federal custody serving this sentence.

A. Suppression Issue

The facts relevant to the suppression issue follow. On July 31, 1987, at about 2:00 p.m., Portland Police Sgt. Edward May and IRS criminal investigator Deborah Delt went to the residence of Iglesias' sister, Shannon Anderson. After knocking on the door, Sgt. May told Anderson that he was investigating the drug activities of Iglesias. Iglesias claims she had a key to Anderson's residence and permission to store her property there. When Anderson indicated a reluctance to talk about her sister, Sgt. May said that an alternative would be to have Anderson subpoenaed by the grand jury. According to Iglesias, Sgt. May also told Anderson that he would return with dogs and a search warrant if he didn't get the information he wanted. According to the government, Sgt. May considered Anderson to be an "innocent bystander" and did not threaten her in any way.

Anderson then revealed the existence of a paper sack in the basement belonging to Iglesias and gave Sgt. May permission to retrieve it. At that point, Anderson's husband came home and concurred in this permission. Delt and Anderson accompanied Sgt. May to the basement. Later inspection revealed that the sack contained cash including bills with prerecorded serial numbers from controlled drug transactions.

On October 30, 1987, with respect to the cash seized from Anderson's residence, Iglesias filed a motion to suppress. The government filed a response on November 10, 1987.

Hearings were held on December 9, 1987 and January 12, 1988. An expert witness, Anne Filmore, testified that "a combination of factors, including Sgt. May's large size, overbearing manner, and body language were geared to frighten and intimidate Ms. Anderson," and concluded that "[t]he cumulative effect of the interrogation was to terrify Ms. Anderson." In denying the motion, Judge Burns did not rule on whether Iglesias had standing to assert a Fourth Amendment claim but concluded that the search was not unlawful.

B. Discovery Issue

The facts relevant to Iglesias's request for discovery under Fed.R.Crim.P. 16(a)(1)(D) are as follows. A dark black sticky substance was purchased by an undercover Portland police officer from alleged co-conspirator Dee Collins. The substance was sent to the Drug Enforcement Administration ("DEA") Regional Laboratory in San Francisco for analysis. The Forensic Chemist, Gary J. Sorgen, tested the substance and wrote a report dated August 6, 1987, indicating that the substance was 54.9% pure heroin.

On September 25, 1987, Iglesias submitted a discovery request to the government asking in part for

[a]ll documents associated with any scientific analysis of any controlled substance seized or otherwise obtained in the course of any investigation leading to or otherwise associated with the prosecution of this case. This request includes but is not limited to those records memorializing the storage and transportation of any such substance from the time of seizure or acquisition and thereafter up to and including the trial in this matter.

ER 23. The government provided Iglesias with the DEA lab report and agreed to set up a conference between defense counsel and the DEA chemist. The government, however, refused to turn over the "log notes," protocols, and other internal documents of the chemists who worked on the analysis.

After the government refused to turn over the chemist's "log notes" and other such material, Iglesias filed a motion to compel the production of these documents. At the conclusion of the suppression hearing the district court heard argument on the motion to compel. Judge Burns denied the motion and suggested that Iglesias accept the government's offer to speak with the DEA chemist.

II. Suppression of Seized Cash

A. Standards of Review

We review the question of whether a defendant has standing to assert a Fourth Amendment claim de novo, United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir.1986), although we review the underlying facts for clear error. United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). We review for clear error a district court's ruling that a consent to search was voluntary. United States v. Licata, 761 F.2d 537, 544 (9th Cir.1985).

B. Standing

In general, "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises ... has not had any of his Fourth Amendment rights infringed." United States v. Kinsey, 843 F.2d 383, 389 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 99, 102 L.Ed.2d 75 (1988). In order to have standing to assert a Fourth Amendment claim, a defendant must have had an actual, subjective expectation of privacy. This expectation must be one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979).

The question of whether Iglesias has standing is a close one. ¹ But because we hold that the search was not unlawful, we assume, without deciding, that Iglesias has standing to raise a Fourth Amendment claim.

C. Voluntariness of Consent

Iglesias raises two interrelated issues in support of her claim that Anderson did not really consent to the search and seizure of the cash. First, Iglesias argues that because of Sgt. May's "threat" to have the grand jury issue a subpoena, Anderson's statements to Sgt. May were involuntary, and that the seized cash should thus be suppressed as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Iglesias, relying on Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), points out that Sgt. May does not have the power to issue grand jury subpoenas. In Bumper, police officers obtained "consent" to search by falsely telling the occupant that they had a search warrant. The Court ruled that the "consent" was involuntary and therefore not valid. Bumper, 391 U.S. at 550, 88 S.Ct. at 1792.

The situation in the instant case does not rise to the level of the deception and coercion found in Bumper. Although Sgt. May himself does not have personal authority to issue grand jury subpoenas, it was not impermissible for him to inform Anderson that a search warrant and a grand jury subpoena were viable options. On this ground, the decision of the district court upholding the lawfulness of the search was not clearly erroneous.

Second, Iglesias argues that considering the totality of circumstances, Anderson's consent was involuntary. Indeed, to be effective, consent to search must be given voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To support her claim that the consent was not given voluntarily, Iglesias alleges: (a) that Sgt. May made threats and assertions of authority that had no lawful basis (i.e., issuance of a grand jury subpoena, as discussed above); (b) that Anderson was vulnerable in her home and was confronted with separation from her small child, who was present during the interrogation; (c) that a substantial amount of time was required to overbear Mr. Anderson's will; (d) that May and Delt utilized sophisticated psychological manipulation including a classic "Mutt and Jeff" approach; and (e) that Anderson indicated a desire to invoke her Fifth Amendment right against self-incrimination. None of these factors mentioned by Iglesias, either individually or in their totality, are sufficient to render Anderson's consent involuntary. See United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1988). The decision of the district court in refusing to suppress the evidence was not clearly erroneous.

III. Discovery of Internal Government Documents

A. Standards of Review

A district court's discovery rulings under Fed.R.Crim.P. 16 will not be disturbed absent an abuse of discretion, United States v. Balk, 706 F.2d 1056, 1060 (9th Cir.1983), although we review de novo a district court's legal construction of Rule 16. United States v. Givens, 767 F.2d 574, 583 (9th Cir.) (relating to Fed.R.Crim.P. 16(a)(1)(C)), cert. denied, 474 U.S. 953, 106 S.Ct. 321, 88 L.Ed.2d 304 (1985).

B. Rule 16(a)(1)(D)

The text of Fed.R.Crim.P. 16(a)(1)(D), in relevant...