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United States v. Duran

filed: January 20, 1994.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MACARIO DURAN, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. TERRELL H. AMERS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-90-0111-ER-7, D.C. No. CR-90-0111-ER-1. Edward Rafeedie, District Judge, Presiding

Before: Browning, Farris, and Kelly,*fn* Circuit Judges

MEMORANDUM

I. Amers

A.

Amers was convicted of conspiracy and is therefore liable for the acts of his co-conspirators in furtherance of the conspiracy, which the jury could conclude included the theft charged in count 7. Pinkerton v. United States, 328 U.S. 640, 646, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946); United States v. Crespo de Llano, 838 F.2d 1006, 1019 (9th Cir. 1987).

There was sufficient evidence that Amers failed to report on his federal tax return income "received in 1988 from illegal thefts of currency." There was evidence Amers received substantial unreported income in 1988. There was also evidence Amers received stolen money that year -- Sobel testified that in August, 1988, Deputy Garner said to him, "I got 40 G's off of Yepes. How about each of us gets ten and Kalinterna and Amers gets five?" Within roughly ten days of that seizure, Amers made two cash deposits totalling $1300 to his accounts. Viewed in the light most favorable to the government, this evidence sufficed.

B.

The trial court did not restrict Amers' cross-examination of Sobel. The court properly excluded Franzen's testimony under Fed. R. Evid. 608(b) since it was offered as extrinsic evidence of specific instances of misconduct. United States v. Lew, 875 F.2d 219, 223 (9th Cir. 1989).

C.

We agree with the district court that the FBI's handwritten notes of its interviews with Sobel contain no material discloseable under the Jencks Act, since they are not a "substantially verbatim recital of an oral statement." 18 U.S.C. § 3500(e). The draft FBI 302 reports are not discloseable under the Act, since are were not "contemporaneous" recordings of Sobel's testimony, and Sobel never approved or adopted them or presented them to the grand jury. Id.

II. Duran

A.

The affidavits supporting the search warrant gave the magistrate Judge a substantial basis for finding probable cause to search Duran's two houses, his mother's house, his wife's business, and a safe deposit box. The affidavits contained evidence Duran was involved in a conspiracy to commit thefts as recently as two months prior to the searches. The magistrate Judge was entitled to draw reasonable inferences as to the likely location of evidence of a crime considering the nature of the evidence and of the crime. United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987). It was reasonable to conclude, based on common sense and the expert testimony of the FBI agents, that people will keep records of their financial transactions in their homes.

The search warrant authorized seizure of eight specific categories of items that were "fruits, instrumentalities, and evidence of violations of 18 U.S.C. 371, 666, 1951, 1952, 1956(a); Title 31 U.S.C. 5313, 5324; and Title 26 U.S.C. 7201 and 7206(1)." This detailed description meets the specificity requirement of the ...


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