U.S. v. Valenzuela

• Decision Date: 23 March 1979
• Docket Number: 78-1342 and 78-1784,Nos. 78-1684,78-1016,s. 78-1684
• Citation: 596 F.2d 824
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel VALENZUELA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alonso LIZARRAGA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bernardina LIZARRAGA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mary Elizabeth CORLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 824

596 F.2d 824

UNITED STATES of America, Plaintiff-Appellee, v. Manuel VALENZUELA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Alonso LIZARRAGA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Bernardina LIZARRAGA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Mary Elizabeth CORLEY, Defendant-Appellant.

Nos. 78-1684, 78-1016, 78-1342 and 78-1784.

United States Court of Appeals Ninth Circuit.

March 23, 1979.

Certiorari Denied May 21, 1979.

See 99 S.Ct. 2415

Terry Amdur, Danilo J. Becerra, of Moreno, McFadden & Becerra, Los Angeles, Cal., Robert B. Gaunt, Torrance, Cal., for defendants-appellants.

David R. Hinden, Robert J. Perry, Los Angeles, Cal., for plaintiff-appellee.

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

Before WALLACE and HUG, Circuit Judges, and EAST, ^* District Judge.

WALLACE, Circuit Judge:

Appellants appeal from convictions of various counts arising from their activities in what the jury found to be an organized heroin ring. The appeal of Jose Valenzuela, found by the jury to have been one of the central figures in this operation, is treated in a separate opinion. All of these appellants were charged and convicted of Count I, conspiracy to possess with intent to distribute heroin, 21 U.S.C. §§ 841(a)(1), 846. Each appellant was also convicted of a substantive count of possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1): Manuel Valenzuela in Count III, and Corley and Alonso and Bernardina Lizarraga in Count VIII. As to Manuel, Corley, and Alonso, we affirm; as to Bernardina, we reverse.

I. Manuel Valenzuela

Manuel's sole argument is that, because the evidence pertaining to him related only to 1971 through 1973, the government's delay in prosecuting him substantially prejudiced him because it forced him to stand trial with his brother, Jose Valenzuela. The government conceded in the district court that it had delayed prosecution until evidence against the entire organization could be amassed.

Assuming, without deciding, that Manuel was actually somewhat prejudiced by the delay, ¹ his argument for dismissal cannot stand, as the very cases he cites make clear. In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), in which a preindictment investigative delay of 18 months was found not unreasonable, the Court stated that prejudice is "generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Id. at 790, 97 S.Ct. at 2049. In the Court's view, "compelling a prosecutor to file public charges as soon as the requisite proof has been developed against one participant on one charge would cause numerous problems in those cases in which a criminal transaction involves more than one person or more than one illegal act." Id. at 792-93, 97 S.Ct. at 2050. Such problems, including the impairment of investigations and the burdening of courts with multiple trials involving the same facts, led the Court to conclude that "to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." Id. at 796, 97 S.Ct. at 2052. See also United States v. Mays, 549 F.2d 670, 678 (9th Cir. 1977) (despite actual prejudice, dismissal requires intentional misconduct or negligence by the government). Similarly, no deprivation of due process occurred in Manuel's case.

II. Mary Elizabeth Corley

Corley was one of several persons found mixing heroin when police officers searched the Lizarragas' house and garage pursuant to a search warrant. Issuance of the warrant was based in part upon an informant-heroin user's tip, which led to identification of Alonso as the supplier for the informant's dealer, one "Blondie." Corley argues that disclosure of the informant's identity was necessary to permit her to attack adequately the sufficiency of the warrant and to aid generally in her substantive defense. She relies upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), arguing that since the informant was "involved" as a purchaser of heroin from Blondie, and because he observed drug transactions between Blondie and Alonso, he was a percipient, necessary witness.

This argument must be rejected. Roviaro involved an informant who was the "sole participant, other than the accused, in the transaction charged." Id. at 64, 77 S.Ct. at 630 (emphasis added). Here the incidents about which the informant gave information were not charged, but were relevant only to the establishment of probable cause for the search. In McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), the Court upheld a state court's refusal, when the lawfulness of an arrest was in question, to compel disclosure of the identity of an informant whose information had been relied upon to establish probable cause. Here, as in McCray, the information given by the informant and the basis for believing the information reliable were specifically articulated. There is no reason to overturn the trial judge's implicit finding that the officers reasonably believed the informant to be reliable. The suggestion that disclosure of the informant's identity would have been helpful generally to the defense is mere speculation. See United States v. Marshall, 532 F.2d 1279, 1282 (9th Cir. 1976).

Corley argues additionally that disclosure of the informant's identity was necessary to permit her to raise an entrapment defense. She apparently argues that because the informant-heroin user purchased heroin from Blondie, who in turn purchased from Alonso, the next higher level supplier, this " created the intent in the mind of the supplier (Blondie) to possess heroin for sale, overcame the resistance of the supplier and directly caused the chain of events that eventually led to the participation of (Corley) in the offense of possession of heroin." Even crediting Corley's farfetched chain of logic, the ultimate contention is without merit. Entrapment occurs when officers induce the commission of a crime, not when they merely afford opportunities for its commission. United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

III. Alonso Lizarraga

Alonso attacks on several grounds the sufficiency of the affidavit supporting the warrant for the search of his house. This affidavit discloses substantively that an informant-heroin user had seen his own dealer, Blondie, take delivery of heroin from a person whose name may have been Alonso, whose description fit that of Alonso, and who drove a car registered to Alonso. It also discloses that the affiant-officer had, upon the informant's tip as to time and place, observed what appeared to be a drug transaction between Blondie and the person believed to have been Alonso.

Alonso first argues that the informant's identity should have been disclosed, an argument which we have already rejected. It is next argued that the affidavit does not disclose sufficiently the reliability of the informant. Alonso points particularly to the fact that the affidavit, in referring to three of the four previous cases in which this informant was involved, states only that the informant "assisted" the officer. In the fourth case, the informant "furnished . . . information," but this case culminated only in arrest, not conviction.

We reject Alonso's argument as to the informant's reliability. Viewing the affidavit in the appropriate "commonsense and realistic fashion," United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), it is clear from the context that the officer was using "assisted" to refer to the supplying of information. The officer refers to the informant as having " given truthful information," and having "assist(ed) . . . by acting in an undercover role." The affidavit also discloses that in the fourth case not only did the information supplied by the informant lead to arrest, but also to seizure of heroin.

Further, it is clear that tips given by the informant were corroborated by personal observations of the officer. The officer knew Blondie to be a heroin dealer, and had arrested him in the past. The officer verified the license plate and identification of the car and the description of its owner, as supplied by the informant. The officer also observed an apparent drug transaction between Blondie and the driver of the car when and where the informant had said that such a transaction would occur. The reliability of the informant is also buttressed somewhat by his statements against his own penal interest that he had purchased heroin from Blondie. See United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (opinion of Burger, C. J., joined by three justices, one justice concurring in the judgment).

Alonso also argues that the affidavit does not disclose that the information came from the informant's personal knowledge. This contention is also without merit, as the affidavit is clear that it relates the informant's personal observations. It states either that the informant has "seen" the actions related to the officer, or provides information of such nature and detail as to make clear that it relates firsthand observation.

It is next argued that even if the affidavit is sufficient to establish Alonso as the "connection," it does not disclose reasonable grounds for believing that heroin would be found at Alonso's house. The premise of this argument is correct: the facts supporting the warrant must show probable cause to believe that the criminal objects are presently in the place to be searched, ...