On Appeal from the United States District Court for the District of Arizona. D.C. No. CR-90-0463-RMB. Richard M. Bilby, District Judge, Presiding.
Before: Goodwin, Schroeder and Beezer, Circuit Judges
Jose Luis Pedraza-Ruiz appeals his conviction for conspiracy, possession with intent to distribute marijuana and the unlawful use and carrying of a firearm during a federal offense. Pedraza-Ruiz contends that the district court erred in excluding the testimony of a defense witness. He also contends that the prosecutor engaged in misconduct during closing arguments. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
On December 5, 1990, Pedraza-Ruiz and three co-defendants were indicted and charged with conspiracy, possession with intent to distribute marijuana and the unlawful use and carrying of a firearm during a federal offense.
Prior to trial, the government and defense counsel entered into an agreement for the early disclosure of Jencks Act material. Under the terms of the agreement, the government provided defense counsel with reports and statements from prosecution witnesses. Those reports and statements were otherwise not discoverable until after the prosecution witnesses testified at trial. See 18 U.S.C. § 3500. In return, defense counsel agreed to provide the government with a list of all potential defense witnesses and a summary of their expected testimony. In pertinent part, the agreement provided that
2. Defense counsel agrees to provide the government with a list of all potential defense witnesses and a summary of their expected testimony as soon as same is available and not later than ten (10) days prior to trial - whichever comes first.
(a) Failure to provide the government with a list of all potential defense witnesses and a summary of their expected testimony shall result in that witnesses being excluded from giving any testimony.
By letter dated April 24, 1991, defense counsel advised the government that he intended to call five witnesses, among them defense witness Denise Arellano. Defense counsel did not, however, provide timely summaries of the witnesses' expected testimony.
At a hearing held the morning trial commenced, May 7, 1991, the government moved to exclude the testimony of those witnesses, as well as the testimony of witnesses disclosed in a subsequent letter of May 1, 1991. The prosecutor stated that defense counsel "has orally told me what they may say but in some brief fashion. I have received nothing in writing of disclosure and I now move pursuant to the disclosure law (sic) to prevent their testimony. . . ."
The district court subsequently ruled that Pedraza-Ruiz could call all witnesses named in the two letters with the exception of Arellano. In granting the government's motion as to that witness, the district court ruled that, because defense counsel had not provided the government with a timely summary of Arellano's testimony despite the fact that Arellano "was available," she would not be allowed to testify on behalf of Pedraza-Ruiz.
Pedraza-Ruiz was subsequently convicted on all three counts and sentenced to a term of imprisonment of 101 months.
The Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." The right to compulsory process includes "the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present the defendant's version of the facts as well as the ...