U.S. v. Larrazolo

• Decision Date: 17 March 1989
• Docket Number: Nos. 87-1378,87-1380,s. 87-1378
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar Armando LARRAZOLO, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roberto LARRAZOLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1354

869 F.2d 1354

UNITED STATES of America, Plaintiff-Appellee, v. Oscar Armando LARRAZOLO, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Roberto LARRAZOLO, Defendant-Appellant.

Nos. 87-1378, 87-1380.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1988.

Decided March 17, 1989.

Richard C. Henry, Tucson, Ariz., for defendant-appellant Oscar Armando Larrazolo, Jr.

Barry J. Baker Sipe, Baker Sipe, Campoy & Newman, Tucson, Ariz., for defendant-appellant Roberto Larrazolo.

Jerry R. Albert and John Leonardo, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

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

Before BROWNING, WALLACE and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Appellants Oscar Armando Larrazolo, Jr. and Roberto Larrazolo were indicted along with Jose Luis Ramos-Rodriguez, Oscar A. Larrazolo, Sr., Edward DeVaney and Thomas John O'Connell, for conspiring to distribute and to possess marijuana with intent to distribute in excess of 1,000 kilograms in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A)(vii), and 846. The trial court denied the motions to dismiss the grand jury indictment and each defendant filed a notice of interlocutory appeal in a timely manner. Interlocutory review of a motion to dismiss the grand jury indictment must be made available for a defendant's claim of prosecutorial misconduct before the grand jury because such review no longer can be obtained on post conviction appeal. United States v. Benjamin, 812 F.2d 548, 549 (9th Cir.1987). We affirm the trial court.

STANDARD OF REVIEW

A district court's determination of whether a prosecutor's alleged misconduct before a grand jury warrants dismissal of the indictment is subject to de novo review. United States v. DeRosa, 783 F.2d 1401, 1404 (9th Cir.), cert. denied, 477 U.S. 908, 106 S.Ct. 3282, 91 L.Ed.2d 571 (1986); United States v. Sears, Roebuck & Co., Inc., 719 F.2d 1386, 1392 n. 9 (9th Cir.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984). However, the separation of powers doctrine mandates judicial concern for the independence of the prosecutor and the grand jury. DeRosa, 783 F.2d at 1404. The Fifth Amendment gives this institution its independent stature. United States v. Chanen, 549 F.2d 1306, 1312 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977). Therefore, courts have been reluctant to intrude on its proceedings. DeRosa, 783 F.2d at 1404; United States v. Al Mudarris, 695 F.2d 1182, 1184 (9th Cir.1982), cert. denied, 461 U.S. 932, 103 S.Ct. 2097, 77 L.Ed.2d 305 (1983).

I STATEMENT OF FACTS

A. Facts Leading Up to the Arrest

On January 25, 1987, Drug Enforcement Agency (DEA) agents in Nevada telephoned DEA agents in Tucson, Arizona, that Edward DeVaney had access to six tons of marijuana in Tucson. The Nevada DEA agents were involved in negotiations for the sale of cocaine from Mr. DeVaney when they learned this information. The DEA undercover agents and Mr. DeVaney met on January 27, 1987, at a hotel near the airport. During the 27th, Mr. DeVaney Mr. Larrazolo, Sr. and the other DEA agent continued negotiations and during the 28th and 29th, the agent and Mr. Larrazolo, Sr. drove to and from the West Ina Road address. Mr. Larrazolo, Sr. showed the agent various types and grades of marijuana available there and at an address on Dakota Street.

took the two agents to 6850 West Ina Road, where they saw in excess of 1,000 pounds of marijuana. The next day, January 28th, Mr. Oscar Larrazolo, Sr. was introduced to the two agents and started participating in the negotiations. Mr. DeVaney and one of the DEA agents went back to Nevada to finish the cocaine deal which never transpired.

On the evening of January 29th, 1,000 pounds of marijuana was moved from another location to the Betsy Street address where Mr. Larrazolo, Sr., Mr. Larrazolo, Jr. and Roberto Larrazolo and two others loaded it into a motor home driven by undercover agents. Arrangements were made between agent Cameron and Mr. Larrazolo, Sr., to send a second motor home to the West Ina address. Again, Mr. Larrazolo, Jr. and Roberto Larrazolo assisted in the loading of marijuana into this second motor home. While they were loading, Mr. Jose Luis Ramos-Rodriguez checked off each bale of marijuana and its weight on a ledger as the Larrazolos loaded it.

While undercover agents arrested those at the Ina House, Thomas John O'Connell drove up in a rented Lincoln. Officers found one bag of marijuana laying on the floor board, another lying on the passenger side and a notebook. The notebook had several entries indicating that O'Connell had come to Tucson from Phoenix to pick up 180 pounds, returned to Tucson to pay for some amounts, picked up another sample and returned. The testifying agent stated it was obvious to him and his associates that O'Connell was coming to West Ina Street to pick up marijuana, and was then going to distribute it in Phoenix. O'Connell had about five pounds in "samples," according to the agent's testimony, in various bags found in the car and trunk. No other defendants were referred to in the journal found in O'Connell's car. The total weight of the marijuana involved in these transactions was slightly in excess of 3,700 pounds.

According to the arrest report of Robert and Oscar Larrazolo, Jr., (not submitted during the grand jury proceedings), Roberto claimed that they "had nothing to do with what had been going on at the house," and had only been "hired by the owner of the house to paint" it. They were just helping out, "doing whatever they were told to do." When asked who owned the house and where the owner was, they claimed they did not know. During the grand jury investigation, DEA agent Fernandez mistakenly testified that the owner of the West Ina house was Larrazolo, Sr. It was subsequently learned that Roberto and Oscar Larrazolo, Jr. were the owners of record of this house. Agent Lopez's report dated 11/27/87 was submitted into evidence along with a copy of a report authored by agent Cameron dated 8/24/87 at the December 1, 1987 hearing on Motion to Dismiss the Grand Jury Indictment. Agent Cameron's report reflects that appellants' father, Larrazolo Sr., told the agent that "... his sons were simply helping him because he was their father."

B. The Grand Jury Proceeding

On February 18, 1987, the case was presented to the grand jury. During the proceedings, the prosecutor asked agent Fernandez whether any of the people arrested made any incriminating statements or explanations after they were arrested. Fernandez stated, "the older Mr. Larrazolo did. He did not implicate anyone in this indictment but he knew he was had." Nothing was said about the statements given to agent Lopez in the arrest report and the prosecutor only became aware of these statements a day or two before the December 1 hearing on the motion to dismiss. Another statement came to the prosecutor's attention two weeks prior to the hearing where Roberto Larrazolo told one of the undercover agents not to pile the marijuana so high in the motor home.

Then, one of the jurors and the prosecutor discussed O'Connell's involvement in the conspiracy. The juror asked why O'Connell was in the conspiracy count since he had never been involved in the negotiations. The juror was interrupted by the witness, Fernandez, who stated that O'Connell's renting of the car involved O'Connell in the conspiracy in that he was conspiring to distribute some of the marijuana. The juror then directed a question to the prosecutor whether the juror's understanding of conspiracy was correct. The prosecutor responded by saying that the juror's understanding was not completely correct. He then gave a brief explanation of conspiracy:

Conspiracy is an agreement to do something illegal between any number of people, two or more, to do something illegal and that there's something done to further the conspiracy, something called an overt act, that's done to carry out. In other words, there is the agreement, and then somebody does something affirmative to bring it about, makes a call, talks to somebody, goes somewhere, anything of the sort.

Witness Fernandez added, "[they] would not necessarily have to have whatever it was, the cocaine or marijuana, whatever the product was with them or on them. If I understand it correctly, they don't really have to have knowledge of it."

After further discussion between the juror and the prosecutor regarding O'Connell, the prosecutor stated that O'Connell only had to agree with someone else that he was going to distribute 1,000 pounds of marijuana. Then the prosecutor left the grand jury to vote on the indictments.

In the next occurrence in the record, the prosecutor entered the grand jury room to explain another point of law, the "Pinkerton Principal" from Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489, reh'g denied 329 U.S. 818, 67 S.Ct. 26, 91 L.Ed. 697 (1946). He stated essentially that if the jurors found the person to be a member of a conspiracy then that person was also liable for the crimes of other members committed in furtherance of the conspiracy. He suggested this principle might apply to O'Connell. In speaking to the jurors, the prosecutor noted that 12 or 14 voted to indict O'Connell on the conspiracy charge but not the substantive count of possession. He asked them to reconsider the indictment in light of his explanation of the "Pinkerton Principle"--meaning if they found O'Connell liable for conspiracy, they should find he is also liable for possession.

II DISCUSSION

A. Standard for Reversible Error

Appellants seek dismissal of the grand jury indictment based on four instances of prosecutorial misconduct. An indictment may be dismissed for prosecutorial misconduct only upon a showing of "flagrant error" that significantly infringes on the ability of the grand jury to exercise...