argued submitted pasadena california: March 5, 1993.
Appeal from the United States District Court For the Central District of California. DC NO. CR-89-0836-KN-09. David V. Kenyon, District Judge, Presiding
Before: D.w. Nelson, Wiggins and Leavy, Circuit Judges.
Larry Johnson was convicted of one count of conspiring to manufacture and distribute rock cocaine in violation of 21 U.S.C. § 846, and twelve counts of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 235 months imprisonment. Johnson appeals both his conviction and his sentence. We affirm.
In November 1988, the FBI, with the aid of an informant, began an undercover drug investigation of several individuals suspected of being involved in a conspiracy to distribute cocaine. These individuals were associated with MCC, a carpet cleaning business in Gardena, California which was also a suspected "front" for the distribution operation. During the course of the investigation, Johnson was involved in a least two sales of cocaine.
At some point, a second informant joined the investigation ("Garrett"). Garrett, who was an active member of the MCC conspiracy, provided the FBI agents with information concerning the distribution activities of the conspiracy. He could not, however, provide much information about the cocaine suppliers. The FBI agents decided it was necessary to tap the MCC phone, and they obtained a wiretap warrant. On September 29, 1989, FBI agents and Los Angeles Sheriffs Department deputies ("LASD") executed search warrants at several homes. Charges were brought against Johnson as well as ten other defendants. Johnson was convicted by a jury and sentenced. His timely appeal followed.
I. Johnson's Brady Challenge
Prior to trial, the government informed the court and the defendants that several LASD deputies who had participated in the MCC investigation had themselves been under investigation for acts of corruption unrelated to this case since sometime before September 29, 1989. Several deputies had subsequently been indicted. The government stated that it did not intend to call any of those deputies as witnesses but, if it decided to call these deputies, the government would supply the defense with all potential impeachment material. Shortly after the trial began, the government did produce the report of the debriefing of an LASD sergeant ("Report"). Johnson then moved the court to dismiss the charges against him on the ground that the government had violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over the Report prior to trial. After a hearing, the district court found that the Report did not contain exculpatory information as to Johnson and that therefore no Brady violation occurred. Johnson appeals this ruling, contending that the general allegations against the LASD were Brady material even without a showing that corruption occurred in the case against him.
We review the district court's ruling de novo. United States v. Lai, 944 F.2d 1434, 1440 (9th Cir. 1991), cert. denied, 112 S. Ct. 947 (1992). Johnson's argument is without merit. "Under Brady,. . . the suppression by the prosecution of evidence favorable to the accused violates due process where the evidence is material either to guilt or innocence." Id. Since there was no evidence of misconduct by the LASD in this case, the Report concerning the LASD corruption was not material to the question of Johnson's guilt or innocence. As the district court remarked, it does not necessarily follow that if an officer is "in trouble in something else," he also did something wrong in the instant case.
During the Brady hearing it came to light that two deputies who testified earlier in the trial had been accused of corruption in unrelated cases. Insofar as the Report could have been used to attempt to impeach these two witnesses, it may be considered Brady material. Id. Brady, however, only requires that information be disclosed to the defendant when disclosure would be of value to him: this may be some time after the trial has begun. United States v. Span, 970 F.2d 573, 583 (9th Cir. 1992). The government offered to let Johnson re-cross-examine the two deputies about the allegations of misconduct against them. After re-cross-examining the deputies outside the presence of the jury, Johnson choose not to call the deputies back for questioning before the jury. Accordingly, there was no Brady violation -- the value of the report was not reduced by the fact that Johnson received the report three weeks after the trial began.
II. Examination of Witnesses
Johnson also contends that the district court precluded "effective cross examination of percipient witnesses" concerning the investigation of the LASD during the Brady hearing. In essence, what Johnson actually challenges is the numerous evidentiary rulings of the court sustaining the government's objections to Johnson's questions. The district court's decision regarding the relevance of evidence is reviewed for abuse of discretion. United States v. Schaff, 948 F.2d 501, 505 (9th Cir. 1991). After reviewing these rulings, we conclude that the district court did not abuse its discretion in sustaining the government's objections. Beyond the court's rulings on relevance, the court did not prevent Johnson's attorney from trying to show that the allegations of misconduct against the LASD constituted exculpatory evidence as to his client. Indeed, the court granted Johnson wide latitude in his questioning.
Johnson also contends that the district court abused its discretion when it did not allow him to call at trial another deputy who had been accused of misconduct in an unrelated case. During the Brady hearing, this deputy asserted his Fifth Amendment privilege against self-incrimination. A defendant cannot call a witness to testify for the sole purpose of having that witness exercise his Fifth Amendment privilege. United States v. Espinoza, 578 F.2d 224, 228 (9th Cir.), cert. denied, 439 U.S. 849 (1978). Accordingly, the district court did not prevent Johnson from ...