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United States v. Zuniga-Rosales

filed: October 20, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, CROSS-APPELLANT
v.
EVERARDO ZUNIGA-ROSALES, FRANCISCO CONTRERAS-CARDENAS, DEFENDANTS-APPELLANTS, CROSS-APPELLEE.



Appeal from the United States District Court for the District of Arizona. D.C. No. CR-91-381-3-PHX-EHC, D.C. No. CR-91-381-1-PHX-EHC. Earl H. Carroll, District Judge, Presiding

Before: Reinhardt and Leavy, Circuit Judges, and Merhige, Senior District Judge.*fn*

MEMORANDUM

On October 8, 1991, defendants Miguel Lopez-Manrriguez, Francisco Contreras-Cardenas, Everardo Zuniga-Rosales and Luis Leon-Diaz were indicted on two criminal counts, conspiracy to possess with intent to distribute heroin (count I) and possession with intent to distribute heroin (count II). On April 13, 1993 the jury returned the following verdicts: Lopez-Manrriguez had a hung jury as to count I and was found not guilty on count II; Diaz-Leon was found not guilty on both counts; Contreras-Cardenas had a hung jury as to Count I and was found guilty on count II; and Zuniga-Rosales was found guilty on both counts. Defendants Zuniga-Rosales and Contreras-Cardenas timely appeal from their convictions and sentences.*fn1 In addition, the United States cross-appeals from the sentence given Contreras-Cardenas. The claims will be considered by the Court seriatim.

Appellant Zuniga-Rosales first asserts that his convictions for conspiracy to possess and possession with intent to distribute heroin should be reversed due to insufficient evidence. When timely objection is made to the sufficiency of the evidence our duty is to assess whether, viewing the evidence in a light most favorable to the government, a rational trier of fact could have found defendant guilty of the crime(s) charged beyond a reasonable doubt. United States v. Restrepo, 930 F.2d 705, 708 (9th Cir. 1991). However, when a defendant fails to timely object at trial, such as is the case here, the Court reviews for plain error. United States v. Floyd, 945 F.2d 1096, 1098 (9th Cir. 1991). We have reviewed the evidence and conclude that the evidence was sufficient to support appellant's conviction on both counts.

Next, appellant asserts that the district court wrongly denied a defense motion to dismiss or otherwise preclude the testimony of government informant Jose Aguilar*fn2 due to the government's alleged failure to comply with the district court's discovery orders. We review for an abuse of discretion a district court's exercise of its inherent supervisory power to preclude testimony at trial or to dismiss an indictment. United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988).

That the federal courts wield supervisory powers to redress patent unfairness and prejudice in criminal trials there can be no doubt. Indeed, as noted by Zuniga-Rosales, in United States v. Roybal, 566 F.2d 1109 (9th Cir. 1977), we reversed the conviction of a defendant when the government, in violation of the trial court's broad discovery order, failed to reveal to defendant that it was aware of a narcotics buy independent of those otherwise known to defendant. The government waited until the informant was on the witness stand and then adduced the testimony without any warning to defendant. We held that such behavior "seriously prejudiced" defendant's "opportunity to prepare his defense" when he was indicted only on a single conspiracy count and the surprise testimony was employed to implicate him in a sale that was not the subject of the indictment. We proceeded to state that:

Without this evidence the jury would only have heard that he had been seen in the company of other codefendants, that he had been using narcotics, and that he made statements that might be construed as indicating that he was aware of the codefendant's trafficking. There is no other evidence in the record of any sale by him and no narcotics were found in his possession at the time of his arrest.

Id. at 1110.

In our view the prejudice, if any, accruing to Zuniga-Rosales pales in comparison to that suffered by the defendant in Roybal. Here, the district court, on December 9, 1991, ordered that "any agreements with respect to the informant, any compensation, any record that the informant--criminal record that the informant has, that information be provided to defense counsel 10 working days before the trial, together with any other Brady information, or Rule 16 information. . . ." The record also shows that from December 9, 1991 to March 31, the latter date being during the trial, the court was required to reassert its discovery order as to Aguilar on four occasions. Exemplary of the government's inappropriate behavior is the fact that on March 26, 1992, one day before trial, Aguilar's arrest was first disclosed by the government. On March 27, 1992, the government provided defense counsel with five previous cases in which Aguilar had been involved, and at the same time related that there were forty-four other cases in which Aguilar was involved, the exact nature of his involvement being uncertain.

Notwithstanding the district court's characterization of the government's behavior as "unacceptable," an undeniably apt description, it is nonetheless true that the testimony of Jose Aguilar, who was the subject of the discovery order, was not nearly so important to the government's case as that of the informant in Roybal. Indeed, Agents Humberto Rodriguez and Rudy Casillas, as well as Zuniga-Rosales' co-defendants, provided such substantial testimony as to mitigate the prejudice as to appellant. Furthermore, the record amply demonstrates that Aguilar was the subject of extensive impeachment on numerous other bases. In sum, although the government's behavior with respect to compliance with the discovery order was in no way exemplary, and is not encouraged, we find no error sufficient to warrant reversal of appellant's conviction.

On a related basis, Zuniga-Rosales claims that the district court erred in denying his motion of March 31, 1992, for mistrial and motion for dismissal on the basis of outrageous government conduct. The basis for the motion, related by defense counsel David Ochoa at the motion hearing, was as follows. Ochoa received a letter dated March 26, 1992, in which the prosecutor, Assistant United States Attorney Vincent Kirby, stated that informant Aguilar had been arrested in 1984 while working on an undercover assignment in Nogales, Arizona. In the letter, Kirby further explained that Aguilar was detained for drugs, returned to Phoenix and then released in Tucson, after the government explained the circumstances. During the hearing, the court commented that the facts just described conformed with Aguilar's trial testimony. However, Ochoa proceeded to relate to the court that he thereafter received a phone call from Kirby, informing him to disregard the letter because the information was incorrect. Kirby stated that at the time of the arrest Aguilar was not on government assignment. On this basis, Ochoa argued that someone within the government was providing incorrect and misleading information to the defense, precluding examination and impeachment of Aguilar at trial.

On April 1, 1992, Ochoa renewed his motion, explaining to the court that there was nothing in the files of the Drug Enforcement Administration (DEA) relating to the 1984 arrest of Aguilar. This information, Ochoa argued, directly contradicted the testimony of Aguilar at trial. In short, Ochoa argues that the record showed that Aguilar had engaged in misconduct by lying and providing misleading and incorrect information with regard to his arrest history. The court, however, denied the motion, concluding that the 1984 arrest of Aguilar was a collateral matter going only to impeachment.

We review a district court's denial of a motion for mistrial for an abuse of discretion. United States v. Rush, 749 F.2d 1369, 1371 (9th Cir. 1984). The standard of review attending a district court's denial of a motion to dismiss based upon the court's supervisory powers is also abuse of discretion. United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988). "A district court may dismiss an indictment on the ground of outrageous government conduct if the conduct amounts to a due process violation. If the conduct does not rise to the level of a due process violation, the court may nonetheless dismiss under its supervisory powers." United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991).

Under the circumstances, we fail to see how the government's behavior rises to a violation of due process or otherwise was so egregious as to violate a constitutional or statutory right such as to compel use of the court's supervisory powers. Defendant was timely notified of the erroneous information and the information, in any event, was collateral and therefore no prejudice accrued. Furthermore, the weakness of appellant's argument of government outrageousness is highlighted by defense counsel's own admission during the motion hearing that the error did not result from any fault of the DEA or the prosecution.

Next, Zuniga-Rosales contends that the court erred in its denial of his motion of April 2, 1992, to reopen his case, subsequent to all parties resting, and his motion for a mistrial after the court denied this motion. The gravamen of the claim here is that after the defense rested, Aguilar testified that he permitted his wife to inscribe her social security number on his application for a telephone beeper service, and that the number was valid. Later, both the government and the defense stipulated that in fact the number was invalid. Defense counsel thereupon moved to reopen, seeking to subpoena Aguilar's wife and have her testify at trial to ascertain whether she had indeed provided her social security number on the application. Additionally, defense counsel wished to reopen in order to further cross-examine Aguilar on the social security number issue.

Denial of a motion to reopen a case is reviewed for an abuse of discretion. United States v. Kelm, 827 F.2d 1319 (9th Cir. 1987). A like standard of review attends review of denials of motions for mistrial. United States v. Davis, 932 F.2d 752 (9th Cir. 1991). We conclude that the district court's denial of the motions to reopen and for a mistrial was appropriate; any examination concerning the social security number amounted, at best, to impeachment on a collateral matter. In addition, the record shows that appellant successfully employed numerous other bases to impeach the credibility of Aguilar, including the government's provision of assistance to Aguilar in immigration matters, the substantial amounts of money Aguilar previously received from the government for drug-related investigations, and Aguilar's failure to file income tax returns.

Finally, appellant's proffer of United States v. Simtob, 901 F.2d 799 (9th Cir. 1990), where we reversed defendant's conviction due to a failure of the trial court to exercise its discretion in consideration of a motion to reopen, is inapt. The basis for the motion in Simtob was the late revelation of a tape recording that supposedly indicated that a key government witness perjured himself. Finding that the trial court never reviewed the tape and therefore essentially failed to exercise any discretion at all, we concluded that the tape "contained information bearing sufficiently on the credibility of the prime prosecution witness that it might well have affected the outcome of the case." Id. at 804. Here, the impeachment ...


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