United States v. Yepiz
| Decision Date | 20 December 2016 |
| Docket Number | No. 07-50133, No. 07-50063, No. 07-50070, No. 07-50098, No. 07-50264, No. 07-50067, No. 07-50062, No. 07-50142,No. 07-50051,07-50051 |
| Citation | 844 F.3d 1070 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Manuel YEPIZ, aka Martin Sanchez, Seal G and Pony; Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Jose Luis Mejia, aka Jose Luiz Mejia, Jose Nernedes, Juan Martinez, Jose Mejia, Check Mejia, Jose Al Mejia, Joe Morin, Jose L. Mejia, "Checho", "Joe" and "Cheech", Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Francisco Zambrano, aka Franky Boy and "Franky", Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Jesus Contreras, aka Jessie Contreras, Yuck, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Mariano Meza, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Sergio Mejia, aka Robert Mesa, Seal JJ, Jaws, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Gilberto Carrasco, aka Gilberto Carrasco, Jr., Gil Carrasco, Robert Carrasco, Gilberto Carrosco, Gilberto Corrosco, Julio Gonazalez, Vicente Hernandez, Vincente Hernandez, Vincente NMN Hernandez, Sergio Renteria, Juan Rosas, Beto, Betillo, Red and Cejas, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Ernesto Orozco Mendez, aka "Gordo", "El Gordo", Ernesto Mijares, Ernesto Mendoza Mijares, Ernesto Mendoza Orozco (Birth Name), Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Rafael Yepiz, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Verna Wefald (argued), Pasadena, California, for Defendant–Appellant Manuel Yepiz.
Phillip A. Treviño, Los Angeles, California, for Defendant–Appellant Jose Luis Mejia.
Shawn Perez, Las Vegas, Nevada, for Defendant–Appellant Francisco Zambrano.
Phillip Deitch, Santa Monica, California, for Defendant–Appellant Jesus Contreras.
Donald C. Randolph (argued) and Ann–Marissa Cook, Randolph & Associates, Santa Monica, California, for Defendant–Appellant Mariano Meza.
Diane Berley, West Hills, California, for Defendant–Appellant Sergio Mejia.
Adam Axelrad, Los Angeles, California, for Defendant–Appellant Gilberto Carrasco.
Gary P. Burcham, Burcham & Zugman, San Diego, California, for Defendant–Appellant Ernesto Orozco Mendez.
Katherine Kimball Windsor (argued), Law Office of Katherine Kimball Windsor, Pasadena, California, for Defendant–Appellant Rafael Yepiz.
L. Ashley Aull (argued) and David Kowal, Assistant United States Attorneys; Robert E. Dugdale, Chief, Criminal Division; United States Attorney's Office, Los Angeles, California; for Plaintiff–Appellee United States.
Before: Stephen Reinhardt, John T. Noonan, and Jacqueline H. Nguyen, Circuit Judges.
OPINION
Appellants are all alleged to be members or associates of the Vineland Boys ("VBS"), a gang located in Southern California. On November 30, 2005, a grand jury returned a 78–count first superseding indictment charging appellants and approximately forty other individuals with crimes arising out of their membership or association with VBS. Seven of the nine appellants were charged with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and with RICO conspiracy (Counts 1 and 2, respectively), and all appellants were charged with distribution of narcotics (Count 3). Other charged counts included violent crimes in aid of racketeering ("VICAR"), attempted murder, and possession with intent to distribute cocaine, methamphetamine, and marijuana.
Trial commenced on August 9, 2006. On October 26, 2008, the jury returned a verdict of not guilty as to five counts, a mistrial as to one count, and a verdict of guilty as to the remaining counts. Appellants' subsequent motions for judgments of acquittal and new trials were denied by the district court. Appellants—Manuel Yepiz, Jose Luis Mejia, Francisco Zambrano, Jesus Contreras, Mariano Meza, Sergio Mejia, Gilberto Carrasco, Rafael Yepiz, and Ernesto Mendez—timely appealed their convictions and sentences.
We note at the outset that this case was vigorously litigated over the course of two-and-a-half months. It presented the district court with a gauntlet of complex legal questions, and required it to grapple with unique concerns to courtroom safety and logistics. We are now presented with nearly three dozen distinct legal questions on appeal. These questions have been met by the district court promptly and persuasively.
In this opinion we resolve (1) appellants' joint Brady claims, and (2) Manuel Yepiz's Sixth Amendment Right to Counsel claim. We address the remaining issues in a concurrently filed memorandum disposition.
At trial, one of the government's cooperating witnesses was Victor Bulgarian. In September of 2006, on direct examination, Bulgarian testified that he was previously arrested for possession and sale of methamphetamine in an unrelated case, and agreed to cooperate with law enforcement in exchange for a lesser sentence, and a grant of immunity for his testimony as a government witness. Bulgarian testified to having received no benefits from the government in exchange for his testimony. However, on cross-examination, Bulgarian testified to having received $5,000 in cash from the government after he testified to the grand jury in this case. Defendants noted that this testimony directly contravened a letter the government sent to them asserting that no witnesses received any benefits from the government in exchange for their testimony. The government acknowledged that it was "a glaring mistake," but argued that the error was cured because defendants had ample opportunity to cross examine Bulgarian on the subject of the $5,000 payment. Defendants did not raise the issue again either at trial or in a post-trial motion.
Approximately three years later, on August 20, 2009, Bulgarian testified in the trial of Horacio Yepiz.1 On direct examination, Bulgarian once again testified to having received no benefit from the government in return for his testimony. On cross examination, Bulgarian testified that since his arrest for drug-related crimes in 2004, he had received roughly $100,000 to $200,000 in cash from five different law enforcement agencies, although he was unable to give an exact figure. He explained that he was able to solicit paid work from these agencies whenever he wanted ("I decide when I want to work, and when I work, I get paid."). Indeed, he testified to having received $800 for three hours of work the week prior. Appellants now argue that the government violated Brady by failing to disclose the full extent of the benefits Bulgarian received at trial.
"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To prevail on a Brady claim, the defendant must show that the evidence was material. Materiality is satisfied when United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). This Court reviews alleged Brady violations de novo. United States v. Baker , 658 F.3d 1050, 1053 (9th Cir. 2011), overruled on other grounds by United States v. King , 687 F.3d 1189 (9th Cir. 2012).
The government makes three arguments in support of its contention that it did not violate Brady : (1) defendants waived any Brady claim by failing to raise it at trial; (2) the allegedly withheld information would have been cumulative in light of other impeachment material provided to defendants; and (3) the record demonstrates that Bulgarian received these payments only after the trial in this case.
The government argues that defendants have waived their Brady claim by failing to raise it in the trial court. However, this Court has previously rejected this precise argument. In United States v. Bracy , undisclosed impeachment evidence of a government witness was uncovered for the first time in a later trial of a severed group of defendants. 67 F.3d 1421, 1428 (9th Cir. 1995). The information came to light only after the defendant had filed his notice of appeal, thereby divesting the trial court of jurisdiction over his case. See generally Griggs v. Provident Consumer Discount Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). This Court concluded that "[i]t defies logic to suggest that [the defendant] waived a claim by not raising it before a court that lacked jurisdiction to consider it." Bracy , 67 F.3d at 1428. This reasoning applies with equal force here given that defendants appealed their case in early 2007, roughly two-and-a-half years before the new evidence was revealed.
Next, the government presents a litany of impeachment evidence that it produced to defendants, and argues that "additional payments information could hardly have caused the jury to view Bulgarian or his relationship with the government differently or with greater caution." To the extent that the government argues that its duties under Brady only encompass disclosure of non-cumulative evidence, this Court has previously found this line of reasoning unavailing. Carriger v. Stewart , 132 F.3d 463, 481 (9th Cir. 1997) () (internal citations omitted). Moreover, failure to produce evidence (1) that Bulgarian made hundreds of thousands of...
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