U.S. v. Larios

• Decision Date: 28 January 1981
• Docket Number: No. 80-1039,80-1039
• Citation: 640 F.2d 938
• Parties: 7 Fed. R. Evid. Serv. 1181, 7 Fed. R. Evid. Serv. 1543 UNITED STATES of America, Plaintiff-Appellee, v. Manuel Chavez LARIOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 938

640 F.2d 938

7 Fed. R. Evid. Serv. 1181, 7 Fed. R. Evid.

Serv. 1543

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Chavez LARIOS, Defendant-Appellant.

No. 80-1039.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 6, 1981.

Decided Jan. 28, 1981.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, NELSON and NORRIS, Circuit Judges.

NELSON, Circuit Judge.

Appellant, Manuel Chavez Larios, appeals his conviction for unlawfully conspiring to distribute heroin in violation of 21 U.S.C. § 846.

Larios was found guilty by a jury in a trial presided over by The Honorable Thomas J. MacBride. He was initially sentenced by a different judge, The Honorable Jack E. Tanner, to the statute's maximum term of 15 years, ordered to pay the maximum fine of $25,000, and given a special 3-year parole term. Judge Tanner then ordered a study of the appellant made, pursuant to 18 U.S.C. § 4205(d). After the completion of the study, Judge Tanner affirmed the original sentence.

The appellant makes a number of claims which, with one exception, we find unpersuasive.

First, the appellant claims that the evidence was insufficient to support a verdict of guilty. The standard of review for the sufficiency of the evidence is an inquiry into whether, based on the evidence presented, the jurors could reasonably arrive at their conclusion. United States v. Espinoza, 578 F.2d 224, 228 (9th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 151, 58 L.Ed.2d 151 (1978) (per curiam); Sablan v. People of Territory of Guam, 434 F.2d 837, 839 (9th Cir. 1970); United States v. Nelson, 419 F.2d 1237, 1243 (9th Cir. 1969). And, this inquiry must be done by considering the evidence in the light most favorable to the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Paduano, 549 F.2d 145, 149 (9th Cir.), cert. denied, 434 U.S. 838, 98 S.Ct. 129, 54 L.Ed.2d 100 (1977); United States v. Robinson, 546 F.2d 309, 314 (9th Cir. 1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1333, 51 L.Ed.2d 596 (1977).

While this is a close case, we find the evidence sufficient to uphold the jury's verdict. There was one witness, the Drug Enforcement Administration informant, Baldamar Trevino, whose testimony supported the verdict. The testimony of one witness, even that of an informant, is sufficient to uphold a conviction. Paduano, 549 F.2d at 150; Proffit v. United States, 316 F.2d 705, 707 (9th Cir. 1963); see Audett v. United States, 265 F.2d 837, 847 (9th Cir. 1959).

The appellant also claims that because a note written by Larios while in jail referred to guns found in an illegal search of his home, the note was the direct product of an illegal search and seizure and thus an excludable "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We find, however, that this note is not an excludable "fruit," but is independent evidence admissible at trial. See id. at 485, 487, 83 S.Ct. at 416, 417; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920).

Clearly, the connection between the illegal search and the note is "so attenuated as to dissipate the taint" of the illegality. Wong Sun, 371 U.S. at 487, 83 S.Ct. at 417, quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939). The government did not use the illegally seized evidence to find the note, see Wong Sun, 371 U.S. at 485, 83 S.Ct. at 416; Silverthorne Lumber Co., 251 U.S. at 392, 40 S.Ct. at 183. It was written weeks after the search occurred. The mere fact that the note mentioned evidence found illegally is not enough to warrant exclusion. To uphold the appellant's claim would require adopting a "but for" test and that has been rejected. Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417; see Nardone, 308 U.S. at 341, 60 S.Ct. at 267.

The appellant claims further that this note should not have been allowed into evidence because its prejudicial effect outweighed its probative value. Under the Federal Rules of Evidence trial judges are given discretion to exclude relevant evidence if the court determines that its probative value is substantially outweighed by its potential for unfair prejudice. Fed.R.Evid. 403. The judge's determination of this balance is given great deference and this court will reverse it only when there is an abuse of discretion. United States v. Cassasa, 588 F.2d 282, 285 (9th Cir. 1978), cert. denied, 441 U.S. 909, 99 S.Ct. 2003, 60 L.Ed.2d 379 (1979); United States v. Moore, 522 F.2d 1068, 1079 (9th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976); United States v. Hobson, 519 F.2d 765, 771 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975).

There is no question that this note was highly probative evidence, indicating the appellant's knowledge and state of mind, and tending to discredit his defense that Amador and not he was the drug supplier. Therefore, we find that the trial judge did not abuse his discretion in deciding that whatever prejudicial effect this evidence might have had did not substantially outweigh its probative value. See United States v. Batts, 573 F.2d 599, 603 (9th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978); United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978); Hobson, 519 F.2d at 771.

Appellant also argues that he was denied effective assistance of counsel in violation of his sixth amendment rights, claiming that his counsel should have made the motion to suppress the illegally found evidence earlier than he did. Attorneys, however, are allowed a great deal of discretion in the tactics they use when handling a trial. See Ewing v. Williams, 596 F.2d 391, 396 (9th Cir. 1979). Moreover, it is clear that the fact that counsel might have made mistakes in the trial is not determinative. Instead, the errors made must be those a reasonably competent attorney would not have made. Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979) (en banc); United States v. Moore, 599 F.2d 310, 314 (9th Cir. 1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 687, 62 L.Ed.2d 658 (1980).

After a review of the record in this case, we find that the appellant was afforded "reasonably competent and effective representation," Cooper, 586 F.2d at 1328, and that he acted " 'within the range of competence demanded of attorneys in criminal cases.' " Id. at 1329 & 1330, quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). Thus, Larios' sixth amendment rights have not been violated.

Another issue presented is whether it was reversible error for the sentencing judge to consider evidence found through an illegal search and seizure when deciding the appropriate sentence for the appellant. It is clear that the appropriate inquiry when determining whether the exclusionary rule should apply in a particular circumstance is to decide whether the rule's purpose of deterring unlawful police conduct would be sufficiently furthered by exclusion to outweigh any detrimental effects of excluding the evidence. United States v. Calandra 414 U.S. 338, 348-50, 94 S.Ct. 613, 621, 38 L.Ed.2d 561 (1974); United States v. Vandemark, 522 F.2d 1019, 1021 (9th Cir. 1975); United States v. Winsett, 518 F.2d 51, 54 (9th Cir. 1975).

We hold that under the circumstances of this case it would not. The police officers obtained a search warrant before the search, and there is no indication that the search was overextensive in scope or conducted inappropriately. Its illegality was caused by a technical error in the affidavit in support of the warrant. This police misconduct is not sufficient to justify interfering with individualized sentencing. See Vandemark, 522 F.2d at 1021-22. Cf. Verdugo v. United States, 402 F.2d 599, 611-13 (9th Cir. 1968), cert. denied, 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d 105 (1970) (evidence excluded from sentencing consideration when search was conducted without a warrant, was "blatantly illegal," and the court found that the police needed to be deterred from making illegal searches under the circumstances involved).

In addition, Judge Tanner did not abuse his discretion by considering this information. Judges are given very broad discretion to consider information from a wide variety of sources when sentencing because it is important for the sentencing judge to be able to fashion sentences properly in tune with individual defendants. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442 (1969); Williams v. New York, 337 U.S. 241, 246-52, 69 S.Ct. 1079, 1082-85, 93 L.Ed. 1337 (1959).

Another error alleged by the appellant is that the informant's testimony that co-conspirator Salinas identified Larios to him as being "Pasqualito" and "the source of the supply of heroin," was inadmissible hearsay and should have been excluded from the trial. The appellant, however, did not object to this testimony when it was given during the trial. It has long been settled that, absent exceptional circumstances, Hormel v. Helvering, 312 U.S. 552, 556-60, 61 S.Ct. 719, 721-23, 85 L.Ed. 1037 (1941), this court will not consider issues raised for the first time on appeal. United States v. Murray, 492 F.2d 178, 193 (9th Cir. 1973), cert. denied, 419 U.S. 854, 95 S.Ct. 98, 42 L.Ed.2d 87 (1974); United States v. Tanks, 464 F.2d 547, 548 (9th Cir. 1972) (per curiam); Yeater v. United States, 397 F.2d 975, 976 (9th Cir. 1968) (per curiam). We find no exceptional circumstance in this case warranting our consideration of this issue at this level, and thus need not consider the merits of the appellant's claim.

The final issue presented on appeal is whether...