Appeal from the United States District Court for the Southern District of California. D.C. No. CR-0469-G-1. Earl B. Gilliam, District Judge, Presiding.
Before: Farris, Wiggins, and Fernandez, Circuit Judges
Alonso Gonzalez-Lopez (Gonzalez) appeals his conviction for importing an alien for immoral purposes (8 U.S.C. § 1328), transportation of a person for prostitution (18 U.S.C. § 2421), and harboring an illegal alien (8 U.S.C. § 1324(a)(1)(c)). We affirm.
Gonzalez and his wife were arrested on April 27, 1991 as they drove out of a migrant labor camp in Valley Center, California. The camp was under general surveillance by INS agents as part of a larger investigation into prostitution rings, which culminated in several cases including United States v. Hernandez, No. 91-0330-G. Gonzalez and his wife were transported to the immigration investigations office in San Diego. Gonzalez was advised of his Miranda*fn1 rights. In response to questions by INS Special Agent Salvador Briseno, Gonzalez stated that he understood his rights and that he did not want to have an attorney present. Gonzalez admitted that he had transported people for prostitution purposes and received money on three occasions; that he had smuggled Miriam Castellanos-Flores (Castellanos) into the United States on two occasions for prostitution purposes and that she had lived with him and his wife. He also identified himself in surveillance videotapes taken at the migrant labor camp. At trial, the government presented its evidence through only two witnesses, Agent Briseno and Castellanos. The jury found Gonzalez guilty.
"Brady v. Maryland requires the prosecution to disclose evidence to the defense that is both favorable to the accused and material either to guilt or punishment. 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). " United States v. Boshell, 952 F.2d 1101, 1106 (9th Cir. 1991).
Disclosure of Marco Diaz's statement at trial rather than pre-trial did not violate Brady. See United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991); United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988). The statement was disclosed at a time when it was of value to petitioner: it was disclosed to the defense during trial, admitted into evidence, and used by the defense. The statement was also contained in Agent Briseno's report that was provided to the defense at the beginning of trial. See United States v. Van Brandy, 726 F.2d 548, 551 (9th Cir. 1984), cert. denied, 469 U.S. 839, 105 S. Ct. 139, 83 L. Ed. 2d 79 (1984).
Brady does not require the government to turn over information not in its possession or control. United States v. Monroe, 943 F.2d 1007, 1011 n.2 (9th Cir. 1991 ), cert. denied, U.S. , 112 S. Ct. 1585, 118 L. Ed. 2d 304 (1992). The prosecution turned over the only information it had in its possession regarding Cesar Cortez -- a photograph of Cortez. Nothing more was required.
The government had no obligation to produce evidence that it did not possess and was not aware of. Monroe, 943 F.2d at 1011 n.2. The government did try to locate a car previously seized from Gonzalez and the registration documents for that car. It was unable to find them. The government had no duty to preserve the evidence because the car and its contents did not possess an exculpatory value that was apparent before the evidence was destroyed or lost, there was no suggestion of bad faith on the part of the government, and the information -- the car registration in Cortez's name and the date of the purchase -- can be ...