USA v. Gomez, 98-2160

• Decision Date: 03 September 1999
• Docket Number: No. 98-2160,98-2160
• Citation: 191 F.3d 1214
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OLGA A. GOMEZ, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1214

191 F.3d 1214 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OLGA A. GOMEZ, Defendant-Appellant.

No. 98-2160

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

September 3, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. D.C. No. CR-97-263-LH

[Copyrighted Material Omitted] Maria M. Laverde, Las Cruces, New Mexico, for Defendant-Appellant.

James R. W. Braun, Assistant United States Attorney (John J. Kelly, United States Attorney with him on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.

Before KELLY, MCKAY and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Ms. Olga A. Gomez appeals her criminal convictions for possession with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. § 841, and conspiracy to possess with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. § 846. She argues that the trial court (1) erred in failing to grant her motion to dismiss based on the United States' destruction of the marijuana evidence and (2) violated the Confrontation Clause by admitting her absent codefendants' confessions. She also raises a claim based on United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), ordered reheard en banc and opinion vacated, July 10, 1998, id. at 1361-62 (order). We exercise jurisdiction under 28 U.S.C. § 1291 and remand for a new trial.

I. Background

On April 4, 1997, Border Patrol Agent Martin observed two sets of headlights approaching from the east on Highway 9, west of Hachita, New Mexico and near the Mexican border. Agent Martin became suspicious of the cars and stopped the first one, a sedan, which contained Ms. Gomez, Maria Teresa Rubio, and Jose de Jesus Yanez Torres. He briefly questioned them regarding their destination. In response to a question, Ms. Gomez stated they were not traveling with anyone else.

During that time, the second vehicle, a white truck, passed them. Agent Martin released the sedan, then pursued and stopped the truck. He noticed an unconnected propane tank in the truck. The truck's driver, Felipe Bravo-Aguilar, agreed to follow Agent Martin to the border patrol station, where a drug-sniffing dog indicated the presence of narcotics in the tank. Several agents then planned a controlled delivery of the truck, whereby Mr. Bravo-Aguilar agreed to continue to deliver the drugs as before while the agents followed behind in an unmarked car.

As the agents followed Mr. Bravo-Aguilar, they again noticed the sedan, which engaged in a series of unusual driving maneuvers, repeatedly passing them and then making U-turns to fall in behind them again. The agents pulled the sedan over a second time. Ms. Gomez, Ms. Rubio, and Mr. Yanez Torres (then claiming to be Hector Rubio, Maria's brother) contradicted the earlier story they had told about their destination.

During a subsequent pat-down of Mr. Yanez Torres, Agent Cordova found a cellular phone in Mr. Yanez Torres' coat pocket. Agent Cordova pressed redial on the phone, and had a conversation about the load of marijuana with the person who answered. Agent Cordova told Mr. Yanez Torres this conversation linked him to the drugs. So confronted, Mr. Yanez Torres admitted he was involved with the drugs, but claimed his "sister," Ms. Rubio, was not. He provided a written statement. After seeing Mr. Yanez Torres' statement, Ms. Rubio also provided a written statement. Mr. Yanez Torres showed the agents how to access the drugs in the tank. The tank was found to contain approximately 130.5 pounds of marijuana worth, according to later testimony at trial, $104,400. See Rec. vol. IV, at 99-100.

The government charged Mr. Bravo-Aguilar (the truck driver) first, on April 16, 1997, with one count of possession with intent to distribute 50 kg or more of marijuana. The United States Customs Service gave the United States Attorney notice the same day that it would destroy the drug evidence 60 days from the date of notification, pursuant to 21 U.S.C. § 881(f)(2). Mr. Bravo-Aguilar also received notice of the destruction. See Rec. vol. I, doc. 43, at 2. Accordingly, the government destroyed the bulk of the drugs on June 3, 1997 (but retained nearly one kilogram of samples). On the day following the marijuana destruction, June 4, Ms. Gomez was charged along with codefendants Mr. Bravo-Aguilar, Ms. Rubio, and Mr. Yanez Torres by superseding indictment with one count of possession with intent to distribute 50 kilograms or more of marijuana and one count of conspiracy to do the same. Ms. Gomez was arrested on September 25 and arraigned on October 20. She did not receive notice of the drugs' destruction until October 29.

Ms. Gomez was tried separately in December, 1997. Mr. Bravo-Aguilar testified against her pursuant to a plea agreement with the government. The government also introduced written statements of confession from the other two codefendants, Mr. Yanez Torres and Ms. Rubio, who were unavailable to testify as they remained fugitives at the time of trial. A jury convicted Ms. Gomez on both counts. At the May 1998 sentencing hearing, the trial court sentenced Ms. Gomez to 41 months on each count, to run concurrently followed by three years supervised release on each count, to run concurrently.

II. Discussion

A. Right to a Fair Trial

Ms. Gomez argues that the government violated her right to a fair trial by its destruction of the marijuana upon which her conviction was based. She locates her claim on two distinct grounds: (1) Fed. R. Crim. P. 16 and the district court's standing discovery order, and (2) her Fifth Amendment right to due process and the standards articulated in Brady v. Maryland, 373 U.S. 83 (1963). We find her arguments on the fair trial issues to be without merit.

1. Fed. R. Crim. P. 16/Standing Discovery Order Violation

Ms. Gomez argues that the government's destruction of the drug evidence violated Fed. R. Crim. Pro. 16(a)(1)(C) and the court's standing discovery order. See Order, Rec. vol I, doc. 33, at 3. The court's discovery order explicitly tracks the language of Rule 16(a)(1)(C); accordingly we treat the two together. Both allow discovery of tangible objects "which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." Fed. R. Crim. P. 16(a)(1)(C); Order at 2.

The bulk of the drug evidence was destroyed on June 3, 1994. However, Ms. Gomez was not indicted until June 4, 1994, and the district court did not issue its discovery order until October 20, 1994. Thus, by the time the requirements of Fed. R. Crim. P. 16 and the court's order became applicable to Ms. Gomez, the government was no longer in "possession, custody, or control of" the bulk of the drug evidence. Accordingly, its failure to produce the evidence was not a violation of either the Rule or the Order. The issue Ms. Gomez raises is not a discovery violation, but rather, is whether the government's destruction of the evidence without prior notice to her violated her due process rights, as discussed below.

2. Due process/Brady claim

We turn to Ms. Gomez's argument that the government's destruction of the marijuana evidence without prior notice to her violates her due process rights. She characterizes her claim both as a failure to disclose material, exculpatory evidence under the standards articulated in Brady v. Maryland, and as a bad faith failure to preserve evidence that could have been potentially useful to her defense.

First, we do not believe her claim is properly characterized as a Brady claim. As we have previously stated, "[t]he Supreme Court's jurisprudence divides cases involving nondisclosure of evidence into two distinct universes. Brady and its progeny address exculpatory evidence still in the government's possession. [Arizona v. Youngblood, 488 U.S. 51, 58 (1988))] and [California v. Trombetta, 467 U.S. 479 (1984)] govern cases in which the government no longer possesses the disputed evidence." Fero v. Kerby, 39 F.3d 1462, 1472 (10th Cir. 1994) (quoting United States v. Femia, 9 F.3d 990, 993 (1st Cir. 1993)). Here, the government admits that the evidence was no longer in its possession. Therefore, Ms. Gomez's claim is more properly treated under the Youngblood/Trombetta line of cases.

In order to establish a due process violation under Trombetta, Ms. Gomez must show that the marijuana evidence had exculpatory significance that would have been "apparent before" its destruction, and that it was "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." See Trombetta, 467 U.S. at 488. She has failed to show that its exculpatory significance would have been apparent. Instead, as the district court properly determined, Ms. Gomez has established only that the evidence was "potentially useful" to her defense. See Rec. vol. II, at 17. In order to establish a due process violation with respect to "potentially useful" evidence, Ms. Gomez must show that the government acted in bad faith in destroying it. See United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994) (citing Youngblood, 488 U.S. at 58). Here, the district court concluded that the government did not act in bad faith. We review that conclusion for clear error. See United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995).

Ms. Gomez argues that because the government knew on April 4, 1997 that it would seek a later indictment against her, its failure to provide her notice before destroying the drugs shows its bad faith. As support for her argument that the government knew it would seek a later indictment, she refers to a United States Attorney's duty report from the date of her initial detention. She characterizes that report as showing that she had been...