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United States v. Echeverria

*fn* submitted san francisco california: May 11, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CESAR ARMANDO ECHEVERRIA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of California. D.C. No. CR-91-0127 CAL. Charles A. Legge, District Judge, Presiding

Before: Poole, Boochever and Fernandez, Circuit Judges.

MEMORANDUM

Appellant Cesar Echeverria appeals his conviction for conspiracy to possess and distribute cocaine in violation of 21 U.S.C. §§ 846 and 963 as well as importation of cocaine, in violation of 21 U.S.C. § 952. Echeverria argues that the district court abused its discretion in refusing to allow him to discover information and present evidence relevant to his theory of defense at trial. We reject his arguments and affirm his conviction.

I.

Based on information obtained from a stowaway aboard the M/V Flag Adrienne, a ship that sailed from Cartagena, Colombia and docked in Richmond, California, the United States Customs Service (USCS) discovered that the Adrienne carried cocaine that was to be unloaded in Richmond. The contact aboard the ship who was to arrange the transfer of the cocaine was subsequently arrested.

On March 7, 1991, USCS Special Agent Tyler Morgan instructed Immigration and Naturalization Service (INS) Special Agent Ramon Jaime to place an undercover call to the telephone number obtained from the stowaway. Morgan recorded these conversations. Impersonating the contact, Jaime spoke to Juan Guttierez and arranged to transfer the cocaine. Guttierez provided Jaime with a pager number and a code that would enable him to contact "Manolo," who would pick up the cocaine.

Jaime then contacted Manolo, who was later identified as Echeverria. Echeverria informed Jaime that he would pick up the cocaine from the Adrienne. On the evening of March 7, USCS agents observed Echeverria drive a green station wagon two or three times past the pier area where the Adrienne was docked. On the morning of March 8, Jaime called Echeverria's pager, and Echeverria called back and said that he was in Richmond. Jaime and Echeverria agreed that Echeverria would call at noon and that Jaime would decide on a meeting place. Echeverria was observed driving a white Toyota around the pier area at approximately 10:00 a.m. Echeverria had left his green station wagon parked down the road from the pier.

At noon and again at 1:00 p.m., Echeverria called Jaime from a pay phone located near the Adrienne. Echeverria told Jaime that he was driving a black Cadillac and that he would be waiting at the front gate of the pier. Echeverria later said that he would be waiting at front gate of the pier in a small brown car. Echeverria was actually still driving the white Toyota.

Jaime met Echeverria and led him into the pier. Jaime directed Echeverria to a place on the pier where a bag of cocaine was located. Echeverria gave Jaime $2,000, indicating that the rest of the promised $10,000 would be given to him later. After Echeverria picked up the 12 kilograms of cocaine, he was arrested. The events on the pier were videotaped, and the videotape was presented as evidence at trial.

After his arrest, Echeverria waived his Miranda rights and admitted that Gutierrez had instructed him to meet Jaime at the Adrienne and pick up twelve kilograms in exchange for $10,000. Echeverria further stated that he was to be paid $5,000 for his work. This confession was also introduced at trial.

At trial, Echeverria's defense was that he had no knowledge that he was involved in a cocaine transaction. Echeverria explained that he came to the pier to meet a friend of Guttierez' who was having immigration problems and that Guttierez requested him to give the friend $2,000 for immigration bail. Echeverria also attempted to give innocent explanations for all of the incriminating evidence against him.

Echeverria's defense theory was that the twelve kilograms seized by the USCS during his arrest were only a decoy for an additional 100 kilograms onboard the Adrienne and that he was a dupe who was used to determine if law enforcement officials were aware of the planned larger cocaine transaction. Echeverria further contended that Guttierez had always intended to send someone from Miami to pick up the cocaine and that Echeverria was not contacted until it was clear that the stowaway had been arrested. In support of his theory, Echeverria offered the testimony of a person who was arrested attempting to unload some of the 100 kilograms of cocaine off of the Adrienne at the Los Angeles Harbor, the Adrienne's next destination. The district court ruled that the proposed testimony was inadmissible, finding that even if the person had been hired to recover the bags of cocaine from the Adrienne, it was not relevant to Echeverria's mental state and intent when he met Jaime.

II.

Echeverria argues that the district court erred in denying his discovery motion. Discovery rulings are reviewed for an abuse of discretion. See United States v. Boshell, 952 F.2d 1101, 1104 (9th Cir. 1991); United States v. Sanchez, 908 F.2d 1443, 1451 (9th Cir. 1990). Specifically, however, Echeverria argues that his rights under Brady v. Maryland, 373 U.S. 83 (1963), were violated by the denial of his discovery motion. A prosecutor's duty to produce evidence under Brady is ...


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