US v. Stever

• Decision Date: 04 May 2010
• Docket Number: No. 09-30004.,09-30004.
• Citation: 603 F.3d 747
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrew STEVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

603 F.3d 747

UNITED STATES of America, Plaintiff-Appellee, v. Andrew STEVER, Defendant-Appellant.

No. 09-30004.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2009.

Filed May 4, 2010.

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Bryan E. Lessley and Tonia L. Moro, Assistant Public Defenders, for the defendant-appellant.

Kent S. Robinson, Acting U.S. Attorney, and Douglas W. Fong, Assistant U.S. Attorney, for the plaintiff-appellee.

Before: JEROME FARRIS, D.W. NELSON and MARSHA S. BERZON, Circuit Judges.

BERZON, Circuit Judge:

Andrew True Stever brings a direct appeal of his conviction, after trial by jury, on one count of conspiracy to manufacture 1000 or more marijuana plants, 21 U.S.C. §§ 841(a)(1) and 846, and one count of manufacture of marijuana, 21 U.S.C. § 841(a)(1). Stever sought to defend on the ground that the marijuana growing operation found on an isolated corner of his mother's 400-acre property was the work of one of the Mexican drug trafficking organizations (DTOs) that had recently infiltrated Oregon. He was prevented from doing so by two district court rulings, the first denying him discovery related to the operations of DTOs and the second declaring that defense off-limits. We consider whether these rulings violated Rule 16 of the Federal Rules of Criminal Procedure, Stever's rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Stever's Sixth Amendment right to make a defense.¹

I.

On July 7, 2007, officers executed a warrant to search the 400-acre rural property on which Stever lived with his mother. The officers discovered a marijuana growing operation in an isolated corner of the property bordering a 40-acre tract belonging to the Forest Service. Most of the more than 7000 marijuana plants grew on the Stever property. The remaining plants, along with a camping tent, cook tent, and disassembled greenhouse—all camouflaged to prevent aerial detection— were located on Forest Service land.

Two men the investigating officers described as Hispanic fled the scene when the officers arrived, leaving behind various personal effects, including clothing, two firearms, a cell phone, and a wallet containing the resident alien ID card of Alfredo Jesus Beltran-Pulido (Pulido). The wallet also contained Stever's business card and Stever's mother's cell phone number. A later review of Stever's phone records showed that he frequently called some of the phone numbers contained in the cell phone found at the scene.

Stever told friends, family, and later the police, that he had hired Pulido and several of his Hispanic associates in May to work on a generator and repair fences on the property. For part of this time, Pulido lived in a trailer on the Stever property; he also spent some time camping in a field near the generator. Stever's mother confirmed that these men had been hired to work on the generator, which she was having repaired because she hoped to sell it. Pulido and Stever also socialized together. Pulido was briefly romantically involved with one of Stever's friends.

The Government presented evidence that, in mid-May, 2007, Stever abruptly revoked the permission his mother had given a neighboring rancher to graze his cattle on the property. Stever told the rancher that someone without any cattle was willing to pay more for a lease.

The Government also presented testimony that tire tracks observed on a dirt road leading from the Stevers' house to the area of the marijuana operation on the morning of the raid matched the tread on the pick-up truck that Stever drove. Stever, however, provided unchallenged testimony that the same tread was used by at least half the pick-up trucks in the county, including many police and Forest Service trucks, and likely including some of the police vehicles that traveled the same road to the marijuana operation to conduct the raid.

The operation was located about a mile—along a winding dirt road—from the house in which Stever lived with his mother and was separated from the rest of the property by a large forested hill. The house sat close to the main, paved road, such that ingress and egress from the house would not take Stever to the area of the property that contained the operation. There was no testimony that anyone had seen Stever travel to the part of the property that contained the marijuana operation.

On the day after the raid, Stever reported a vehicle stolen. He told the police that his friend Keith Reed's Mazda had disappeared from outside his (Stever's) house overnight. The vehicle was found one week later, abandoned outside a convenience store in Eugene, Oregon, with an ignition key tucked inside the visor.

Stever was indicted on October 5, 2007. He sought pre-trial discovery of any reports in the government's possession describing the "characteristics, modus operandi, and other information regarding" Mexican DTOs involved in growing marijuana, explaining that he had knowledge that the United States Attorney's Office for the District of Oregon was then prosecuting a number of factually similar marijuana cases involving such organizations. The Government did not deny that it possessed such reports. Instead, it refused to comply with the request.

Stever filed a Motion to Compel Discovery on May 28, 2008. In that Motion, and in a subsequent Motion to Reconsider, Stever drew upon news reports, publically available information, and one email apparently obtained from the government pursuant to an earlier discovery request to argue that Mexican DTOs had recently infiltrated Eastern Oregon, that the operation on Stever's property bore several distinctive characteristics of Mexican DTO operations, and that Mexican DTOs tended to exclude local Caucasians from their operations. The district court denied discovery, reasoning only that "the issue is not necessarily who planted the marijuana, but whether or not the defendant is guilty as charged."

Denied discovery regarding Mexican DTOs, Stever moved in limine to prevent the Government from arguing at trial that Stever conspired with a DTO to manufacture marijuana. Stever contended that, although he was entitled to argue that a Mexican DTO was responsible for the operation, the Government should be barred from arguing that Stever conspired with such an organization, since the discovery rulings deprived Stever of the necessary information to rebut that accusation. The district court granted Stever's motion to bar the Government from arguing about Mexican DTOs, but also ruled sua sponte that it would not permit Stever to put on evidence regarding Mexican DTOs or "who else might have been involved."

Stever made several offers of proof to substantiate the arguments made in his discovery motions and in his motion in limine. He cited news reports of hunters and landowners stumbling across the marijuana operations of Mexican DTOs trespassing on public and private lands in Northern California and a report of the National Drug Intelligence Center explaining that increased eradication efforts in California had spurred Mexican DTOs to move into Eastern Oregon. He proffered the internal law enforcement communication apparently obtained through prior discovery, which identified a similar operation on federal land in Oregon as the likely work of a Mexican DTO. He also proffered a defense expert who would testify that DTO operations typically excluded local Caucasians.

At trial, Stever's attorneys argued to the jury that Stever had no involvement in the operation, but, given the district court's rulings, could offer no explanation for its presence on the Stever property. So they proffered no affirmative defense at all, telling the jury only that they had "decided to hold the prosecution to its burden of proof." Prosecutors emphasized the location of the operation, calling its presence on an accessible, though remote, area of the Stever property a strong piece of evidence in their circumstantial case. The jury returned guilty verdicts on both counts.

II.

We review the discovery rulings of the district court for abuse of discretion, United States v. Chon, 210 F.3d 990, 994 (9th Cir.2000), "a significantly deferential test that looks to whether the district court reaches a result that is illogical or implausible," United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc). We review de novo whether there has been a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or the Sixth Amendment right to make a defense. United States v. Shryock, 342 F.3d 948, 983 (9th Cir.2003); United States v. Kincaid-Chauncey, 556 F.3d 923, 930 n. 7 (9th Cir.2009).

A.

Stever first argues that the district court abused its discretion by denying discovery of materials related to the operations of Mexican DTOs. Federal Rule of Criminal Procedure 16 grants criminal defendants a broad right to discovery. The government must disclose, upon defendant's request, all "documents ... within the government's possession, custody, or control ... that are material to preparing the defense." FED. R. CRIM. P. 16(a)(1)(E)(i). Information is in the possession of the government if the prosecutor "has knowledge of and access to the documents sought by the defendant." United States v. Santiago, 46 F.3d 885, 893 (9th Cir.1995). "A defendant must make a threshold showing of materiality, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the defense." Id. at 894 (internal quotation marks and citation omitted).

Stever claimed that the Government was in possession of law enforcement reports, officer training materials, and other documents bearing on the operations of Mexican DTOs in Eastern Oregon and California. He cited news reports and ongoing prosecutions and noted that Detective Mogle averred in his search warrant affidavit that his training had familiarized him...