Appeal from the United States District Court for the Eastern District of Washington; Justin L. Quackenbush, Chief Judge, Presiding; DC No. CR-89-441-JLQ
Tang, O'Scannlain, and Leavy, Circuit Judges.
We must determine, among other issues, whether a defendant accused of drug-related crimes was deprived of his constitutional right to a fair trial because of the unavailability of a co-defendant's testimony.
The facts in this case require lengthy recital. On October 10, 1989, a Drug Enforcement Administration (DEA) confidential informant (CI) contacted a member of the Tri-Cities, Washington, Metro Task Force. The CI said that on October 8, 1989, one Francisco Galven-Barajas (Barajas) had offered to sell heroin and cocaine to the CI. Accordingly, Metro Task Force officers arranged for the CI to participate in a controlled drug buy. Officers established surveillance of Barajas' residence, South 510 Hawthorne Street, in Kennewick, Washington. Shortly thereafter, Barajas left his house and proceeded to another residence at West 2220 Fifth Street, also in Kennewick. Barajas entered the residence briefly, returned to his vehicle, and then proceeded to a Safeway store parking lot, where he sold the CI a half ounce of heroin for $1,000.*fn1
Two additional controlled buys by the CI were conducted in the same manner, the second on October 19, 1989, and the third on November 2, 1989. Each time, Barajas drove to the residence on West 2220 Fifth and went into the house momentarily before meeting with the CI to conduct the heroin sale. Barajas sold the CI a half ounce of heroin in the second transaction, and a full ounce in the third. During the third transaction Barajas was accompanied by an unidentified hispanic male.
A series of phone calls between the CI and Barajas ensued, in which the CI sought to purchase six ounces of heroin. Barajas repeatedly told the CI that he had not yet had contact with the source of heroin. On November 15, 1989, Barajas told the CI that the heroin would come in no later than Sunday, November 19, 1989, at 8:00 p.m. A drug buy for six ounces of heroin was set up for November 20, 1989.
On the evening of November 19, 1989, the appellant, Juan Sepulveda, arrived in Kennewick from Santa Clara, California. Sepulveda stayed overnight with Barajas at the South 510 Hawthorne residence.
On November 20, 1989, law enforcement agents again surveilled the house at West 2220 Fifth. That afternoon, Sepulveda and Barajas arrived at the house in a blue Oldsmobile; Sepulveda was driving. According to Detective Simington, Sepulveda was wearing a jacket when he exited the vehicle. The pair entered the house, exiting approximately four to five minutes later. Sepulveda was dressed in the same manner as when he entered. Immediately after the duo returned to the vehicle, the car was surrounded by Task Force officers, and Barajas and Sepulveda were arrested.
A subsequent search of Sepulveda's car revealed approximately six ounces of black tar heroin, found under the passenger's front seat. When Sepulveda was arrested, a loaded .25 caliber semi-automatic pistol was found in the left pocket of his jacket. The gun contained one bullet in its chamber. A search of the West 2220 Fifth residence uncovered several stashes of cocaine and heroin, a .25 caliber semi-automatic assault rifle, two semi-automatic pistols, three revolvers, a large quantity of ammunition, and two triple beam scales, one of which was covered with drug residue.
Sepulveda did not dispute most of the facts recounted above. He did, however, offer an innocent explanation for his seemingly culpable conduct. In June of 1989, Sepulveda explained, he left Mexico for the United States. He went to Santa Clara, California, where he found employment cleaning yards. On November 18, 1989, Sepulveda left Santa Clara to go to Okanogan, Washington, where he intended to work for a company that currently employed his father. On the way, Sepulveda stopped in the Tri-Cities to visit his cousin Barajas. He arrived at Barajas' South 510 Hawthorne residence at approximately 5:00 p.m. on the evening of November 19.
The next day, Sepulveda stated, Barajas suggested that the pair go to the home of one Benino Gonzales, a friend of both Barajas and Sepulveda from Guadalajara. Accordingly, the pair went to the house on West Fifth street. The two entered through the garage; Sepulveda rested on a sofa while Barajas went off to the bedroom. Barajas returned with a leather jacket, which Sepulveda put on. Sepulveda claims that he was unaware that there was a pistol in the left pocket.
Shortly thereafter, Sepulveda explained, the two left the house and got into the Oldsmobile. Sepulveda got into the driver's seat; Barajas entered the car from the passenger's side. Before the car was put into motion, police officers surrounded the car. As the officers approached, Barajas pulled a bag out of his jacket and put it underneath the passenger's seat. Barajas and Sepulveda were then taken into custody.
On November 21, 1989, a grand jury returned a two-count indictment against Sepulveda, charging him with possession with intent to distribute approximately six ounces of heroin, a violation of 21 U.S.C. §§ 2 and 841(a)(1), and unlawfully using a firearm ...