U.S. v. Ramirez, 79-1106

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before CHOY and TANG; RENFREW
• Citation: 608 F.2d 1261
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin Jose RAMIREZ, Defendant-Appellant.
• Docket Number: No. 79-1106,79-1106
• Decision Date: 07 November 1979

Page 1261

608 F.2d 1261 UNITED STATES of America, Plaintiff-Appellee,
v.
Marvin Jose RAMIREZ, Defendant-Appellant. No. 79-1106. United States Court of Appeals,
Ninth Circuit. Nov. 7, 1979.
Rehearing Denied Nov. 20, 1979.

Page 1263

J. William Beard, Jr., La Jolla, Cal., for defendant-appellant.

Irene Takahashi, Asst. U. S. Atty., (on the brief), Michael H. Walsh, U.S. Atty., Irene Takahashi, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before CHOY and TANG, Circuit Judges, and RENFREW, ^* District Judge.

RENFREW, District Judge:

This is an appeal from a criminal conviction for violations of 21 U.S.C. §§ 952, 960 and 963 (importation and attempted importation of controlled substance) and 21 U.S.C. § 841(a)(1) (possession with intent to distribute controlled substance). Appellant and one Roger Zamora both had been charged with the drug offenses. The cases were severed and appellant was tried first.

After considering each of the points raised on appeal by appellant, we affirm.

FACTS

The facts when viewed in a light most favorable to the Government as the prevailing party at trial, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), are as follows. Appellant and Zamora left San Francisco heading for Los Angeles for a weekend vacation. Appellant drove his 1973 Capri which, as Zamora explained, was paid for and owned by appellant but was registered in Zamora's name. En route to southern California, appellant pulled out a plastic bag containing a "little rock" or cocaine hidden below the console area attached to the stick shift, showed it to Zamora, and told him it was for an "emergency" if they needed some. Later that evening, they were stopped and cited by California Highway Patrol Officer Sergeant Field. Appellant was the driver. Upon the officer's questioning, Zamora indicated he was the owner of the vehicle. Sometime after the stop, appellant removed from his pocket approximately 1/4 to 1/2 gram of cocaine wrapped in a dollar bill. The two snorted the cocaine using a "coke spoon" pin appellant was wearing on his jacket. The two checked into a hotel in Tijuana and were joined by Esteban Leon, a friend of appellant. During the evening, the three went to a couple of nightclubs and snorted some of appellant's cocaine taken from the "rock". The next morning, appellant agreed to give Zamora a ride to the San Diego Airport. Before reaching the border checkpoint, Zamora became apprehensive about the cocaine and repeatedly asked appellant to leave it behind or throw it away. Appellant was driving as they approached the Port of Entry at San Ysidro, California. During questioning, the Customs Inspector noticed appellant began to show signs of nervousness, his face turned flush, and his speech quickened. At that point, Zamora interrupted and attempted to befriend the inspector. The inspector became suspicious and inspected the vehicle. He found small quantities of marijuana and a bag containing what the parties stipulated to be five grams of cocaine.

The appeal attacks the conviction on various grounds.

APPELLANT'S CONTENTIONS

1. Insufficient Evidence Establishing a Distributable Amount

of Cocaine

Appellant first contends that mere possession of five grams of cocaine is insufficient to support an inference of an intent to distribute within the meaning of 21 U.S.C. § 841(a)(1). ¹ He cites Turner v. United States, 396 U.S. 398, 422-423, 90

Page 1264

S.Ct. 642, 24 L.Ed.2d 610 (1970), in which the Court held that the defendant's possession of 14 grams of cocaine was insufficient in and of itself as a predicate for concluding defendant was dispensing or distributing. However, where there is other evidence of a plan or intent to distribute, possession of as small a quantity as 4 or 5 grams is sufficient to establish an intent to distribute cocaine. United States v. James, 161 U.S.App.D.C. 88, 111-112, 494 F.2d 1007, 1030-1031 (D.C. Cir. 1974), Cert. denied, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974). In the instant case, there is direct evidence that appellant engaged in the "distribution" of cocaine; although apparently no commercial scheme is involved, his sharing the cocaine with Zamora and Leon constitutes "distribution" for purposes of 21 U.S.C. § 841(a)(1). United States v. Branch, 483 F.2d 955, 956 (9 Cir. 1973). See United States v. Wright, 593 F.2d 105, 108 (9 Cir. 1979). In addition, there is some evidence in the record that a typical dose of cocaine may not exceed one fourth of a gram. Thus the five grams found in appellant's possession is a distributable amount.

2. Admission of Evidence of Threats Made by Appellant to Zamora

Appellant contends that the trial court erred in allowing the Government to elicit testimony from Zamora about alleged threats made by appellant for Zamora's cooperation with the prosecution because although the Government at least two weeks prior to trial had reason to believe Zamora had been threatened, appellant was not advised until the morning of trial of such evidence. Appellant asserts that the admission of the evidence was in violation of General Order No. 150 (referred to in the omnibus form filed in this action) which requires trial evidence to be disclosed within three working days before trial and prejudiced appellant's opportunity to prepare adequately his defense. Furthermore, appellant claims that the Government failed to disclose a prior inconsistent statement of Zamora made to the Assistant United States Attorney that he had not been threatened by appellant. According to appellant, this failure constitutes a violation of the prosecutor's duty under Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose timely all exculpatory evidence. ²

As to its 11th-hour disclosure, the Government replies that it did not have substantial evidence of the threats until the night before trial and that its disclosure the following morning was as early as was practicable. However, the Government admits that in an interview with Zamora two weeks before trial, Zamora's attorney represented that threats had been made by appellant and Zamora himself made vague references to possible threats. Assuming the threat allegations should have been explored further ³ and disclosed in advance of trial, any error by the trial court in admitting the evidence did not constitute reversible error.

Defense counsel was informed the morning of trial and had two opportunities thereafter to question Zamora about the alleged threats, first on cross-examination during the prosecution's case and second on direct examination when Zamora was called as the opening witness for the defense. It should be noted that an hour long lunch recess was taken during the course of appellant's initial cross-examination of Zamora. We conclude that appellant had an adequate albeit brief opportunity to prepare

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his defense. ⁴ Moreover, defense counsel could have moved for a continuance had it been demonstrated that circumstances prevented the presentation of an effective defense. See Gaspar v. Kassm, 493 F.2d 964, 968-969 (3 Cir. 1974); See generally, 9 C. Wright and A. Miller, Federal Practice and Procedure, § 2352, pp. 141-144 (1971). No such motion was made.

This opportunity to prepare cross-examination distinguishes the instant case from United States v. Roybal, 566 F.2d 1109, 1110 (9 Cir. 1977), cited by appellant. In that case, the Government obtained evidence from an informant damaging to the defendant one month prior to trial but waited until the informant was on the stand before adducing it Without any prior warning to the defendant. Moreover, the surprise testimony was the only direct evidence that defendant had trafficked in drugs, whereas, in the instant case, the threat allegations were peripheral and did not constitute the sole evidence of appellant's guilt.

In response to the Brady claim, the Government contends that although Zamora had stated two weeks before trial that no "threats" had been made, that statement was a mistake resulting from Zamora's limited proficiency in English. According to the Government, Zamora did not understand the meaning of "threat" and his prior statement was consistent with his testimony at trial. ⁵

However, the prior disclaimer was ostensibly favorable and potentially useful to appellant and thus arguably falls within the scope of the Government's Brady obligation. ⁶ Even assuming a violation of Brady, however, we find no grounds for reversal. To make out a Brady claim requiring a new trial, appellant must demonstrate that the suppressed evidence was material. Brady, supra, 373 U.S. at 87, 83 S.Ct. 1194. The standard of materiality varies with the situation in which Brady applies. United States v. Agurs, 427 U.S. 97, 103-104, 112-113, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Where, as in the instant case, there has been no specific defense request for the evidence, the failure to disclose violates due process only "if the omitted evidence creates a reasonable doubt (about the defendant's guilt) that did not otherwise exist." ⁷

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Id. at 112, 96 S.Ct. at 2402. We conclude that the inconsistent statement of Zamora does not create such a reasonable doubt. The prior statement would have had little impeachment value since it is evident that the prior disclaimer was merely the product of Zamora's language difficulty. Additionally, we note that the trial judge believed that Zamora's testimony about the threats was not important to the case since it was "more or less meaningless." While a trial judge's opinion, of course, cannot be dispositive on appeal, his judgment should be afforded substantial weight given his relative advantage in being able to render a firsthand appraisal of the record. See Agurs, supra, 427 U.S. at...