U.S. v. Valencia, s. 80-1422
| Decision Date | 17 July 1981 |
| Docket Number | Nos. 80-1422,80-1434,s. 80-1422 |
| Citation | 656 F.2d 412 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Miguel Lopez VALENCIA aka Enrique Carillo-Vasquez, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Flavio DUARTE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael A. Nichols, Sunnyvale, Cal., for Valencia.
Benjamin Duarte, San Jose, Cal., for Duarte.
Gregory H. Ward, Asst. U. S. Atty., San Jose, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before WALLACE and POOLE, Circuit Judges, and GRANT, * District Judge.
Valencia, Duarte, and Del Real were indicted for conspiracy to distribute heroin and cocaine in violation of 21 U.S.C. § 846 (Count One) and for distribution of heroin in violation of 21 U.S.C. § 841(a)(1) (Count Two). A superseding indictment additionally charged Valencia with unlawfully carrying a firearm in the commission of a felony in violation of 18 U.S.C. § 924(c)(2).
Del Real pled guilty to Count Two of the indictment, and the court took under submission the government's motion to dismiss Count One. The motion was subsequently granted. Valencia and Duarte were found guilty of Counts One and Two and Valencia was found guilty of the firearm count. Valencia and Duarte appeal and we affirm.
Del Real told Barrera, a paid government informant with a history of narcotics and drug-related offenses, that Del Real had a friend who was selling heroin and cocaine. Barrera called Del Real the next day and arranged a meeting for the purpose of obtaining samples of the drugs. Barrera and special agent Loya of the Drug Enforcement Administration (DEA) met with Del Real and obtained samples of heroin and cocaine. The discussions with Del Real were tape recorded with the approval and assistance of the DEA. Del Real told Barrera to call his source, whom he identified as "Flavio," to let him know if the samples were acceptable. The telephone number given by Del Real was the number of Duarte's residence.
Barrera met again with Del Real, and they were joined by Duarte. Duarte told Barrera that an additional person would be involved in any future sale of narcotics. A deal was made that Duarte would sell a kilogram of heroin and a few ounces of cocaine to Barrera the following day.
The next day Del Real met with Barrera and Loya in a restaurant parking lot. Del Real told them that the owner of the drugs would sell only 20 ounces of heroin, and that the sale would take place in the parking lot of a department store. Barrera and Loya objected to the changed terms of the deal. Barrera then went with Del Real to discuss the matter with "Flavio." They went to a home where they met with Duarte who told Barrera that the deal would be for only 15 ounces of heroin.
While Duarte, Del Real, and Barrera were conversing, a brown station wagon arrived at the house. When it appeared, Duarte told Barrera that the "merchandise" had arrived. Duarte and Del Real then made several trips between Del Real's car and the station wagon. When they finished, Duarte told Barrera that only 15 ounces would be sold at first, that another 25 ounces would be delivered after the money was received for the first 15 ounces. A DEA agent who was watching identified the driver of the station wagon as Valencia.
Barrera and Del Real returned to the restaurant parking lot and explained to Loya what had occurred. Loya and Barrera followed Del Real to the department store parking lot, where they parked next to Valencia's brown station wagon. Valencia, who had been in the station wagon driver's seat, moved into the back seat while Del Real got behind the steering wheel. Loya told Barrera to go to the station wagon and to see if the heroin was there. As Barrera walked towards the station wagon, Duarte told him to get inside. When Barrera got into the station wagon, Valencia told him that the merchandise was in the glove compartment. Barrera took the bag out of the glove compartment and, after examining the contents, placed the bag on the floor of the car. He told Valencia that he would pay him, and then he got out of the car. Barrera told Loya that the heroin was on the floor of the station wagon. Loya told Barrera to give the pre-arranged arrest signal the raising of the trunk.
After Valencia, Duarte, and Del Real had been placed under arrest, Loya walked over to the station wagon, observed the bag on the floor, and seized it. The bag contained approximately 15 ounces of heroin. A search of Valencia at the scene incident to his arrest revealed a loaded and cocked .45 caliber pistol concealed in the back of his pants and a small bindle of cocaine in a jacket pocket. The major issues raised on appeal are: (1) whether the district court erred in permitting the government to introduce evidence not included in its notice of intention to use evidence at trial; and (2) whether the district court erred in permitting Del Real to rely on his privilege against self-incrimination and to refuse to testify at trial.
Valencia filed and duly noticed a motion pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure. Rule 12(d) provides in part:
(d) Notice by the Government of the Intention to Use Evidence....
(2) At the Request of the Defendant. At the arraignment or as soon thereafter as is practicable the defendant may, in order to afford an opportunity to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the government's intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under Rule 16 subject to any relevant limitations prescribed in Rule 16.
Fed.R.Crim.P. 12(d). The government responded with a list of certain evidence. That list did not include the cocaine bindle seized from Valencia's person at the time of his arrest. The item was not listed because at the time the list was filed, the government did not intend to introduce the evidence at trial. The government did stipulate during trial that it had made "an intentional, deliberate, and conscious decision" not to include the bindle of cocaine in its list of evidence. Over objection, the court permitted the government to offer the cocaine bindle into evidence, and allowed a supplemental motion to suppress it. Valencia now argues that the court should not have permitted the government to introduce the bindle into evidence because it violated the spirit and the letter of Rule 12(d), and Valencia's right to a fair trial and due process of law.
The Advisory Committee notes for Rule 12(d) indicate that the purpose of the rule is to make it possible for the defendant "to avoid the necessity of moving to suppress evidence which the government does not intend to use." Rule 12, Notes of Advisory Committee on Rules. The Advisory Committee notes go on to discuss why sanctions were not provided for in the rule.
No sanction is provided for the government's failure to comply with the court's order because the committee believes that attorneys for the government will in fact comply and that judges have ways of insuring compliance. An automatic exclusion of such evidence, particularly where the failure to give notice was not deliberate, seems to create too heavy a burden on the exclusionary rule of evidence, especially when defendant has opportunity for broad discovery under rule 16. Compare ABA Project on Standards for Criminal Justice, Standards Relating to Electronic Surveillance (Approved Draft, 1971) at p. 116:
A failure to comply with the duty of giving notice could lead to the suppression of evidence. Nevertheless, the standards make it explicit that the rule is intended to be a matter of procedure which need not under appropriate circumstances automatically dictate that evidence otherwise admissible be suppressed.
The appropriate sanction for a failure to comply with a discovery rule should rest in the district judge's sound discretion. See United States v. Baxter, 492...
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