U.S. v. Martinez

• Decision Date: 17 November 1992
• Docket Number: Nos. 91-2286,s. 91-2286
• Citation: 979 F.2d 1424
• Parties: 37 Fed. R. Evid. Serv. 247 UNITED STATES of America, Plaintiff-Appellee, v. Ray MARTINEZ; Edgar Buezo, a/k/a Edgar Martinez; Eloy Carranza; and Rudy Rodriguez, Defendants-Appellants. to 91-2288 and 91-2298.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1424

979 F.2d 1424

37 Fed. R. Evid. Serv. 247

UNITED STATES of America, Plaintiff-Appellee, v. Ray MARTINEZ; Edgar Buezo, a/k/a Edgar Martinez; Eloy Carranza; and Rudy Rodriguez, Defendants-Appellants.

Nos. 91-2286 to 91-2288 and 91-2298.

United States Court of Appeals Tenth Circuit.

Nov. 17, 1992.

James D. Tierney, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with him on the briefs), Albuquerque, N.M., for plaintiffs-appellees.

Richard J. Knowles, Albuquerque, N.M., on the brief, for defendant-appellant Ray Martinez.

Joseph N. Riggs III, Albuquerque, N.M., on the brief, for defendant-appellant Eloy Carranza.

Paul J. Kennedy, Albuquerque, N.M., for defendant-appellant Edgar Buezo.

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant Rudy Rodriguez.

Before MOORE, LAY, ^* and ANDERSON, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

This is a consolidated appeal by defendants Edgar Buezo, Rudy Rodriguez, Ray Martinez, and Eloy Carranza from convictions for drug trafficking offenses, including conspiracy to distribute more than five kilograms of cocaine, 21 U.S.C. § 846, 18 U.S.C. § 2; possession with intent to distribute more than five kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A); and use of a firearm during a drug trafficking crime, 18 U.S.C. § 924(c)(1) and § 2. Defendants present a number of issues, some jointly and some separately, which relate to theories of entrapment, joinder, instructions, admissibility of evidence, and sentencing. ¹ After consideration of all the issues, we affirm the convictions.

The action arises from a Drug Enforcement Administration "sting operation" involving DEA agents in Chicago and Albuquerque and a confidential paid informant in New York City, known only by the assumed name of "Juan Carlos." The operation culminated with the arrests of the defendants in Albuquerque while they were attempting to consummate the sale of six kilograms of cocaine.

Disclosure of the Confidential Informant

A common issue raised by defendants Buezo, Martinez, and Rodriguez is their defense of entrapment. Mr. Buezo claims he was directly ensnared by Juan Carlos, and the other two argue they were "vicariously" entrapped. Without the disclosure of the confidential informant, defendants maintain their defense of entrapment was undermined.

Defendants contend the district court erred by failing to require the government to disclose the true identity of Juan Carlos and produce him at trial for cross-examination. We review this issue under an abuse of discretion standard. United States v. Moralez, 908 F.2d 565, 567 (10th Cir.1990).

The Supreme Court has articulated a balancing test for revealing confidential informants in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957):

Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [of secrecy] must give way.

....

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.

Id. at 60-62, 77 S.Ct. at 627-29 (emphasis added). We have described this balancing of interests more recently in Moralez, 908 F.2d 565.

[C]ases involving confidential informants fall into several broad categories. At one extreme are the cases where the informant is a mere tipster, and disclosure is not required. At the other extreme are cases such as Roviaro itself where the informant has played a crucial role in the alleged criminal transaction, and disclosure and production of the informant are required to ensure a fair trial. In addition, there are cases where there is a slight possibility a defendant might benefit from disclosure, but the government has demonstrated a compelling need to protect its informant.

Id. at 568 (citations omitted).

In United States v. Mendoza-Salgado, 964 F.2d 993 (10th Cir.1992), we upheld the denial of disclosure even though the defendant asserted the testimony of the informant was critical to the defense of entrapment, holding, "Where the value of the informer's testimony remains speculative at best, we cannot say the district court erred by denying disclosure of the informer's identity." Id. at 1001. To permit the trial court to make the required balancing test, we held in Gaines v. Hess, 662 F.2d 1364, 1369 (10th Cir.1981), an in camera hearing can be used to determine whether the informant's testimony would lend aid to the defense. A defendant seeking disclosure of the identity of a confidential informant has the burden of demonstrating a need for disclosure. Roviaro, 353 U.S. at 59, 77 S.Ct. at 627.

Defendant Buezo, contending the informant was the only person who could offer direct testimony about his entrapment defense, filed a pretrial motion in which he sought to compel the disclosure of Juan Carlos' identity and his presence at trial. The district court granted the motion and set an in camera Gaines hearing. Mr. Buezo subsequently filed a supplemental memorandum prior to the hearing in which these and other less significant reasons were advanced as justification for the examination of the confidential informant to establish his entrapment defense:

1) Juan Carlos initiated the first discussion with Mr. Buezo about the "cocaine business." Juan Carlos suggested they "open a nightclub in Albuquerque and import cocaine from New York using the nightclub as a distribution center."

2) At a later visit on another subject, Juan Carlos "again insistently turned the conversation to the matter of cocaine and the opening of a nightclub in Albuquerque to aid in the distribution of cocaine."

3) Juan Carlos was interested in the wholesale price of cocaine in Albuquerque and indicated if the price were right he and defendant could transport cocaine from Albuquerque and make a profit. "The defendant always replied that he did not know the prices of cocaine in Albuquerque nor did he know anything about the cocaine business."

4) Juan Carlos indicated he had a boss in Chicago with whom he had done business dealing in heroin.

5) Juan Carlos called defendant "consistently and insistently both in New York and in Albuquerque" to persuade defendant to engage in the cocaine business. Nevertheless, defendant "consistently" attempted to avoid these contacts and refused the overtures to engage in drug trafficking.

6) "Juan Carlos was particular to the Defendant as to how to operate a drug distribution business." Juan Carlos insisted a person in defendant's position could successfully distribute cocaine through a nightclub.

7) When defendant returned to New York in the autumn of 1989 for the funeral of his mother, Juan Carlos again "spoke consistently about the Defendant's necessity of entering the cocaine business."

8) Juan Carlos used his common background with defendant as a persuasive tool to gain defendant's confidence in an attempt to involve defendant in the drug trade. Phone conversations between them continued to the day before the charged transaction took place. "The details of the deal were intimately negotiated between the Defendant and Juan Carlos."

9) Juan Carlos is "an able and experienced informant for the government."

10) Juan Carlos is "a very smooth and articulate talker capable of engendering trust through conversations...."

At the in camera hearing, among other facts, the court's questioning of Juan Carlos established:

1) During the first meeting between Juan Carlos and Mr. Buezo, defendant "started asking me for--for one-eighth of a kilogram of cocaine.... He asked me for that, if I can supply him. And I said, 'Probably in the future,' That's all." Juan Carlos stated at the time of this conversation he was " 'a government informant' " having engaged in that act following conviction of possessing a pound of cocaine with intent to distribute." ²

2) After Juan Carlos stated he was unable to deliver a kilogram of cocaine, "He give [sic] me his home number, you know, his in New York, I think his father's number. And then also, he asked me for my beeper number."

3) After this first meeting, defendant started calling Juan Carlos on his beeper, and they became friends. They talked about opening a "clothing business." He added, "All--when he used to go to New York, he come over to our car service ... and he said, 'If I'm--you know, If I have somebody who want to buy marijuana.' And I said, 'I might have a friend, but no [sic] this time.' "

4) Juan Carlos had fifteen to twenty telephone conversations with the defendant but none between June to September. "And then when he told me that he has a friend--friends who can supply in Albuquerque a lot [sic] amount of cocaine. So I decided to start and call him lot [sic]." Those calls started in December or January. He called defendant at his old number, and after defendant changed numbers, at a new number given him by Mr. Buezo as well as defendant's beeper number.

5) Juan Carlos tried to get defendant to "do business" with Humberto Flores, an undercover DEA agent in Chicago, but defendant replied, "No, we can't do any business with Chicago. If you want to do any business, have [sic] to be in Albuquerque."

6) When asked directly whether he had "at any time indicated to him that you wanted him to get into the drug business," Juan Carlos said, "No." When later asked, "Did you at any time suggest to him that he should get in the cocaine business," Juan Carlos replied, "No, never, never." Once again, after inquiry into many other...