U.S. v. Tercero

• Decision Date: 18 January 1980
• Docket Number: No. 78-1995,78-1995
• Citation: 640 F.2d 190
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernesto TERCERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 190

640 F.2d 190

UNITED STATES of America, Plaintiff-Appellee, v. Ernesto TERCERO, Defendant-Appellant.

No. 78-1995.

United States Court of Appeals, Ninth Circuit.

Jan. 18, 1980.

As Amended on Denial of Rehearing and Rehearing En Banc Aug. 4, 1980.

John P. Frank, Lewis & Roca, Phoenix, Ariz., argued for defendant-appellant; Anthony R. Lucia, Lewis & Roca, Phoenix, Ariz., on the brief.

Edmund G. Noyes, Jr., Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.

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

Before GOODWIN and WALLACE, Circuit Judges, and HAUK, ^* District Judge.

WALLACE, Circuit Judge:

Tercero appeals his conviction for possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He contends that reversal is required due to the loss or destruction of certain photographs taken the night of his arrest, the denial of his right to a speedy trial, and the trial court's refusal to rule in advance on the admissibility, for impeachment purposes, of his prior conviction for the sale of heroin. We have held this case pending the en banc disposition of United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), and now affirm the conviction.

In November 1974, a federal undercover agent, Florence, arranged for the purchase of a large quantity of marijuana and agreed to take delivery of his purchase at a house in Phoenix, Arizona. He was taken to the house in the early morning hours of November 4, and was introduced at the door to a Mexican-American whom he later identified as Tercero. There were several other Mexican-Americans on the premises. The man who met him at the door led him through the house to the garage where he showed Florence several hundred pounds of marijuana. As Florence thereafter began to drive his automobile into the garage purportedly to load the marijuana, someone, apparently realizing that he was a federal agent, attempted to prevent his entry by closing the garage door. Florence then identified himself as a federal agent, summoned back-up officers, and Tercero and two others were arrested. Other persons in the house fled and escaped arrest.

Tercero was first tried in July 1976, but that trial resulted in a hung jury. At that trial, Tercero testified that he was not involved in the sale or distribution of the marijuana stored at the house. He denied that he was the man who met Florence at the door, and he testified that he first saw Florence when Florence entered the living room where Tercero was sitting with his brother. He testified that he had not previously visited the house, which was rented by his brother, and had been there just a few minutes when Florence entered. Tercero's theory at the first trial was that Florence mistook him for "Eddie," who escaped while Florence was trying to apprehend the group. He also testified that he was leaving his brother's house when Florence arrested him. Defense witness Vasquez and Tercero's brother Tony corroborated Tercero's version of the facts at the first trial. The only contested factual issue at that trial and in the subsequent trial that resulted in his conviction, is whether Tercero was the man who opened the door for Florence and ultimately showed him the marijuana.

I.

On the night that Tercero was arrested, he was photographed by the Maricopa County Sheriff's Department, the United States Marshal, and the Drug Enforcement Administration (DEA). At the second trial, the government, without objection from Tercero's counsel, offered the Marshal's arrest photograph of Tercero wearing a white T-shirt. The photograph was introduced to corroborate Florence's testimony that Tercero was wearing a white T-shirt on the night of the arrest. At the close of Florence's testimony, Tercero requested copies of the photographs taken by the Sheriff's Department and the DEA. He claimed that these photographs would show him wearing heavier clothing on the night of the arrest. The government stated that the other photographs were missing. While no explanation was offered for the missing DEA photograph, the government did state that the County had destroyed its photograph as a matter of routine file-cleaning. Tercero then moved to dismiss the indictment on the ground that the government had lost or destroyed material evidence. He urges that the district court erred by denying his motion.

When evidence is lost or destroyed while in the government's possession, "(t) he Government bears the burden of justifying its conduct and the defendant bears the burden of demonstrating prejudice." United States v. Loud Hawk, 628 F.2d 1139, at 1152, Nos. 76-1906, 76-2127 (9th Cir., Aug. 7, 1979) (en banc). ¹ Among the factors to be considered in weighing the culpability of the government's conduct are

whether the evidence was lost or destroyed while in its custody, whether the Government acted in disregard for the interests of the accused, whether it was negligent in failing to adhere to established and reasonable standards of care for police and prosecutorial functions, and, if the acts were deliberate, whether they were taken in good faith or with reasonable justification. . . . It is relevant also to inquire whether the government attorneys prosecuting the case have participated in the events leading to loss or destruction of the evidence, for prosecutorial action may bear upon existence of a motive to harm the accused.

Id.

Tercero concedes that there is no evidence that the government's loss or destruction of the photographs was in bad faith. Furthermore, there is no reason to suspect that the prosecutors themselves were involved in the destruction of the photographs; indeed they made diligent efforts to find them. While we have warned that the government "flirt(s) with the danger of reversal any time evidence is lost or inadvertently destroyed," United States v. Heiden, 508 F.2d 898, 903 n. 1 (9th Cir. 1974), the government conduct here is substantially less egregious than that involved in Heiden.

In weighing the degree of prejudice a defendant has suffered by losing the evidence, a court may consider

the centrality of the evidence to the case and its importance in establishing the elements of the crime or the motive or intent of the defendant; the probative value and reliability of the secondary or substitute evidence; the nature and probable weight of factual inferences or other demonstrations and kinds of proof allegedly lost to the accused; the probable effect on the jury from absence of the evidence, including dangers of unfounded speculation and bias that might result to the defendant if adequate presentation of the case requires explanation about the missing evidence.

United States v. Loud Hawk, supra, at 1152. The photographs sought by Tercero were neither central nor essential to his defense. With them he hoped to counter the government's corroboration of Florence's testimony that Tercero was wearing a white T-shirt and jeans on the night of his arrest. ² But with one photograph of Tercero wearing such clothes already before the jury without defense objection, the addition of two more photographs, even if they showed Tercero wearing a coat, would have proved very little. The authenticity of the photograph that the government introduced was unquestioned. At most, the additional photographs might have proved that, at or after his arrest, Tercero had removed a coat or changed clothes. Moreover, Florence had already admitted on cross-examination that he had no independent recollection of the clothing Tercero was wearing that night. ³ Thus, not only were the photographs of remote substantive value, they also could serve no significant impeachment purposes. Tercero does not allege that the absence of the photographs hampered the testimony of any defense witness or decreased the probative value of that testimony. Indeed, none of the defense witnesses testified as to what Tercero was wearing on the night of the arrest.

Tercero has thus failed in his burden of demonstrating any significant degree of prejudice to his defense. At the same time, it is recognized by both sides that the government's conduct was devoid of bad faith and was, at worst, negligent. While additional enlightenment by the government as to why the DEA pictures were missing would have been helpful, we conclude, on balance, that reversal of Tercero's conviction due to loss or destruction of the photographs is not warranted.

II.

Tercero was arrested on November 4, 1974, indicted on January 22, 1975, and the first trial commenced on July 13, 1976. The second trial took place on March 9, 10, and 13, 1978. Thus, the time between the indictment and the first trial was approximately 18 months. Tercero admits responsibility for this 18-month delay and does not claim that it violated the law. The time between the first and second trials was approximately 20 months. Tercero claims that this delay denied his constitutional right to a speedy trial and violated the Speedy Trial Act, 18 U.S.C. § 3161(e).

The right to a speedy trial "is as fundamental as any of the rights secured by the Sixth Amendment." Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967). The Supreme Court has identified four factors that courts must consider in deciding whether a defendant's right to speedy trial has been violated: the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We have followed this four-pronged analysis, United States v. Graham, 538 F.2d 261, 263 (9th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 294 (1976); United States v. Simmons, 536 F.2d 827, 829 (9th Cir.), cert. denied, 429 U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 130 (1976), which "necessarily compels courts to approach speedy trial cases on an ad hoc basis." Barker v. Wingo, supra, 407...