U.S. v. Vought

• Decision Date: 11 August 1995
• Docket Number: No. 94-30337,94-30337
• Citation: 69 F.3d 1498
• Parties: 95 Cal. Daily Op. Serv. 8764, 95 Daily Journal D.A.R. 15,193 UNITED STATES of America, Plaintiff-Appellee, v. Jay Franklin VOUGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1498

69 F.3d 1498

95 Cal. Daily Op. Serv. 8764, 95 Daily Journal

D.A.R. 15,193

UNITED STATES of America, Plaintiff-Appellee, v. Jay Franklin VOUGHT, Defendant-Appellant.

No. 94-30337.

United States Court of Appeals Ninth Circuit.

Submitted Aug. 11, 1995. ^*

Decided Nov. 16, 1995.

Andrew J. Lambert, Kalamarides & Associates, Anchorage, Alaska, for defendant-appellant.

Stephen Cooper, Assistant United States Attorney, Fairbanks, Alaska, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska

Before: HALL, WIGGINS, and KLEINFELD, Circuit Judges.

WIGGINS, Circuit Judge:

BACKGROUND

For almost three years, until his arrest in December 1993, Jay Franklin Vought was involved in a cocaine distribution ring in Alaska, conducting the operation with the help of at least seven other individuals.

Although he was arrested and briefly jailed in early 1993 for a parole violation Vought continued to direct the cocaine operation through Deanna Maurer. While Vought was still in jail, Maurer attempted to withdraw from the drug operation, following a police raid on her apartment. The district court found that Vought used threats and violence to induce Maurer's continued participation in the operation, however.

Vought was released from jail on September 2, 1993 as part of an agreement in which he was to assist state law enforcement authorities in an investigation of other drug dealers. Despite this cooperation agreement, Vought proceeded to rebuild his own drug business.

In December 1993, Vought's parole officers received information that Vought was dealing drugs and engaging in other conduct that constituted violations of his parole. Law enforcement authorities had received similar information and had begun a separate investigation into Vought's activities. On December 24, the Statewide Drug Enforcement Unit drug team received information from a confidential informant that Vought was to make a cocaine delivery that afternoon. Sergeant Michael Stickler, who knew of the Parole Office's interest in Vought's activities, notified parole officer Donald H. Allen of the anticipated delivery. Allen and parole officer John Michael Tanner, not wanting to interfere with the drug team's investigation, accompanied the law enforcement officers on their surveillance of Vought. Allen and Tanner were in a separate vehicle and they were not present when the police officers contacted Vought near the residence where the drug delivery was supposed to occur. When Allen and Tanner arrived at the scene, Sergeant Stickler informed them that the police had not found any controlled substances in Vought's possession, and that he was sending his men home.

The parole officers then proceeded alone to the Sophie Station hotel, where they had recently seen Vought's vehicle. After identifying Vought and Maurer as the occupants of room 137, the parole officers searched the room, pursuant to a warrantless drug search condition of Vought's parole. Neither Vought nor Maurer was in the room at the time of the search. Allen and Tanner found approximately 3.2 pounds of cocaine, electronic scales, and $13,100 in cash. At that point, the parole officers contacted the police, who came to the hotel and took control of the evidence. Shortly thereafter, the police arrested Vought and Maurer.

Allen and Tanner, through the police, also contacted Kirk Polhemus, a parole officer in Anchorage with whom they had previously discussed Vought's case, their information that Vought was probably violating his parole, and the possible need for a search of Vought's Anchorage residence. At Allen and Tanner's direction, Polhemus searched Vought's apartment and found two kilograms of cocaine and $11,000 in cash.

During the course of the drug operation, Vought was involved in several violent incidents with various of his drug-dealing associates. On one occasion, Vought tried to kill Charles Smith, one of Vought's cocaine suppliers, because Vought believed Smith was overcharging Vought for the cocaine Smith was supplying. On another occasion, Maurer, whom the district court found was attempting to leave the drug operation, refused to travel on a drug buy and tried to run away. In response, Vought chased her, brought her back at gunpoint, and beat her.

A jury convicted Vought in June 1994 of twelve counts of controlled substance offenses, including conspiracy to distribute cocaine, continuing criminal enterprise in controlled substances, possession with intent to distribute cocaine, and distribution of cocaine; and two counts of money laundering. The district court sentenced Vought to life in prison. Vought timely appeals his conviction and sentence. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

DISCUSSION

I. CHALLENGES TO CONVICTION

A. Waived Issues

Vought has waived two issues. First, after filing his brief in this court, Vought moved to withdraw his argument that the district court erred by denying his motion either to dismiss count I (conspiracy) or to preclude the introduction of certain statements. This panel granted that motion on July 24, 1995.

Second, although Vought stated in his opening brief that the district court erred by failing to suppress Vought's January 15, 1993 statement, he did not provide any argument on the issue. We accordingly deem the issue abandoned and decline to consider it. See United States v. Alonso, 48 F.3d 1536, 1544-45 (9th Cir.1995); Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.1988).

B. Suppression Motion

Vought argues that the fruits of the warrantless searches of the Sophie Station Hotel room and his Anchorage apartment should have been suppressed. He asserts that the searches were impermissible because the parole officers who conducted the searches were acting as "stalking horses" for the police, thus enabling the police to circumvent the warrant requirement. "Whether or not a parole or probation officer is acting as a stalking horse is a question of fact, reviewed for clear error." United States v. Richardson, 849 F.2d 439, 441 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 141 (1988).

Allen and Tanner had received information, independently of law enforcement authorities, that Vought was engaging in activities that constituted parole violations. Although they accompanied law enforcement officers on an ultimately fruitless surveillance of Vought, the subsequent decision to search the Sophie Station Hotel room was made solely by the parole officers. The police had no prior knowledge of the search and they did not participate in it. In fact, the police were only notified after the parole officers found the 3.2 pounds of cocaine. Similarly, the search of the Anchorage apartment had been discussed in advance by parole officers Tanner and Polhemus. The search was conducted by Polhemus and a DEA agent, pursuant to Polhemus' normal procedure.

The district court's conclusion, that the parole officers were not acting as "stalking horses" because they initiated and conducted both searches independently of the police, is not clearly erroneous. See Richardson, 849 F.2d at 441-42. Accordingly, we affirm the denial of Vought's suppression motion.

C. Jencks Act Challenge

Vought claims that at trial he sought production, under the Jencks Act, 18 U.S.C. Sec. 3500, of statements made by Maurer. He was provided with partially redacted copies of her statements. He now objects because the district court did not order production of recordings or transcripts of Maurer's statements. However, Vought never made such a request at trial. We accordingly need not reach the merits of this claim because Vought did not properly raise it before the district court. See United States v. Hanna, 55 F.3d 1456, 1459 (9th Cir.1995). As we stated in Hanna, "[p]roduction of statements covered by the Jencks Act ... is not automatic.... 'The burden rests upon the defendant to invoke the statute....' " Id. (quoting United States v. Burke, 506 F.2d 1165, 1168 (9th Cir.1974), cert. denied, 421 U.S. 915, 95 S.Ct. 1576, 43 L.Ed.2d 781 (1975)). Vought's failure to request at trial the materials he now argues should have been produced precludes his argument on appeal.

D. Motions to Compel Production

Vought filed numerous discovery requests for items that were not directly discoverable from the federal government because the items were in the State of Alaska's possession. See United States v. Dominguez-Villa, 954 F.2d 562, 565-66 (9th Cir.1992) (district court cannot compel government to turn over documents that are under the control of state officials). The district court suggested that these items might be discoverable in part under Fed.R.Crim.P. 17(c). Vought subsequently issued two subpoenas, requesting numerous state documents and files, pursuant to Rule 17(c). The state objected to the production of various documents. The district court upheld only the objections that were based either on the ground that the requested documents would jeopardize an ongoing investigation or on the ground that Vought had failed to demonstrate the relevance of the requested documents. We review the district court's ruling for an abuse of discretion. See United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 3104-05, 41 L.Ed.2d 1039 (1974).

We hold that the district court's refusal to order production was not an abuse of discretion. Vought was required to show, inter alia, that the subpoenaed documents were relevant, see id. at 700, 94 S.Ct. at 3103-04, and he wholly failed to do so. Vought only provided the requisite explanation of relevancy after the court had already ruled on the matter; Vought's prior filings contained, at most, vague and conclusory assertions of relevance. Moreover, production of confidential and ongoing investigation files would have been "unreasonable and oppressive," and the request for those materials was therefore properly denied. See Fed.R.Crim.P. 17(c).

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