Appeals from the United States District Court for the District of Arizona. D.C. No. CR-94-00167-RCB. Robert C. Broomfield, District Judge, Presiding.
Before: James R. Browning, William C. Canby, Jr., and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Canby
Defendants Roberto Ramirez-Rangel and Joel Lobo-Osuna appeal their convictions and sentences for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii) (Count 1); use of a firearm (machine guns) in drug trafficking in violation of 18 U.S.C. § 924(c)(1) (Count 2); and being illegal aliens in possession of a firearm in violation of 18 U.S.C. § 922(g)(5) (Counts 3 and 4). Both defendants maintain that the district court should have granted their motions to reveal the identity of the confidential informant, and that there was insufficient evidence to support their convictions on Counts 1 and 2. A primary reason that the defendants contend that they need the informant's testimony is that it might help to establish that the defendants did not know that the weapons they were receiving from the government agent were machine guns, carrying a 30-year mandatory sentence. A disputed question is whether their knowledge or lack of it is material.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm the convictions on all counts, and the sentences on Counts 3 and 4. We vacate the sentences on Counts 1 and 2, and remand to the district court to conduct an in camera hearing on whether the confidential informant's testimony would be relevant and helpful for purposes of sentencing on Count 2, and for resentencing on Counts 1 and 2 if further proceedings lead to that result.
On April 13, 1994, a confidential informant for the Bureau of Alcohol, Tobacco, and Firearms (ATF) contacted an ATF Special Agent (the "agent") and told him that he knew of two male Mexican nationals who wished to trade methamphetamine for machine guns and money. The agent asked the informant to arrange a meeting between the agent and the two men. To arrange that meeting, the informant (without the agent) met with the two defendants that same day.
A prime reason for the defendants' motion to reveal the identity of the informant was to explore what occurred at this first meeting. At the motion hearing, the agent testified concerning what the informant told the agent had occurred there. The informant said that he had met with Ramirez-Rangel in a bar. According to the informant, Lobo-Osuna was also in the bar, but was at a distance and out of hearing during the Discussion between the informant and Ramirez-Rangel. Ramirez-Rangel merely pointed Lobo-Osuna out to the informant at the bar. Ramirez-Rangel agreed to meet with the agent the next day and to conduct an exchange of approximately one pound of methamphetamine from Ramirez-Rangel for machine guns and money from the agent.
The meeting to make the exchange occurred the next day, April 14. Attempts to record and videotape the meeting were mostly unsuccessful, so evidence of the transaction consisted mainly of the agent's trial testimony. Ramirez-Rangel and Lobo-Osuna maintain that they speak only Spanish. The agent does not speak Spanish except for a few basic words such as "aqui" for "here." The defendants and the agent conducted the transaction by using a few basic English and Spanish words and by using hand signals. Neither defendant used the word "machine guns" or any synonymous English or Spanish word for guns, firearms, rifles, etc., during the transaction.
Ramirez-Rangel and Lobo-Osuna had already arrived in their pickup truck at the appointed place, a car wash, when the agent drove up. The agent got out of his car, shook hands with Ramirez-Rangel and Lobo-Osuna, then went back to the trunk of his car and removed a military "sea bag" containing two AK-47 machine guns. The agent put the bag in the bed of the truck in which the defendants had arrived and then started to open the bag to reveal the contents. Lobo-Osuna said, "No, no, no," indicating that the agent should stop opening the bag, and then indicated that the agent should put the bag of guns up front in the cab of the truck. Following Lobo-Osuna's instructions, the agent put the bag on the front passenger seat of the truck. Ramirez-Rangel then put the bag behind the driver's seat and began to look into it. Lobo-Osuna then told the agent to sit in the passenger seat of the truck, which he did. Ramirez-Rangel stopped looking at the bag and sat in the driver's seat beside the agent. The bag of guns was opened only partially, and the defendants did not take the guns out of the bag or examine them.
Lobo-Osuna was standing outside of the truck on the passenger side, between the seat and the open truck door. The agent asked in English if they had the "stuff." Ramirez-Rangel said yes and asked if the agent had money. The agent replied yes and again asked for the "stuff." Lobo-Osuna pointed under the seat. The agent asked Ramirez-Rangel if he, the agent, could get the package, and Ramirez-Rangel said yes. The agent pulled out a package wrapped in aluminum foil, put it down on the seat, and asked Ramirez-Rangel to open it. The other ATF agents who were watching the transaction testified at trial that, at this juncture, Lobo-Osuna was standing at the back of the truck, smoking a cigarette, and was looking from side to side. Ramirez-Rangel opened the package revealing about one pound of methamphetamine.
The agent said that it looked good, and Ramirez-Rangel asked again for the money. The agent handed a roll of money to Ramirez-Rangel, and then made a signal to the ATF agents to close in and make the arrests, which they did. The ATF later tested the package of drugs for fingerprints, but found none. Neither defendant was carrying a weapon of any kind at the time of the arrests.
After the arrests, ATF agents read both defendants their advice-of-rights in Spanish from a printed form that contained both English and Spanish translations. Both defendants signed the Spanish translation of the forms and waived their right to remain silent and to counsel. Lobo-Osuna stated that he had met Ramirez-Rangel at a bar, then went to the car wash to meet with a "white guy" that he had not met before, and then was arrested.
The agent who interviewed Ramirez-Rangel testified that Ramirez-Rangel spoke both English and Spanish. The interviewing agent transcribed in English Ramirez-Rangel's statement, and Ramirez-Rangel then signed the statement. In the statement, Ramirez-Rangel said that someone he did not know asked him to deliver the methamphetamine and to exchange it for cash and machine guns. Ramirez-Rangel was to receive $200 for conducting the transaction. At trial, any references to Lobo-Osuna were redacted from this statement. Both defendants admitted they were in the United States illegally.
A federal grand jury indicted Ramirez-Rangel and Lobo-Osuna for conspiracy to distribute and possess methamphetamine with intent to distribute, possession of methamphetamine with intent to distribute, use of a firearm in drug trafficking, and being illegal aliens in possession of firearms. Lobo-Osuna filed a motion to disclose the identity and location of the confidential informant, which the government opposed. The district court ordered the government to disclose the identity and location of the informant or, in the alternative, to make the informant available to defense counsel. The government moved for reconsideration, and Ramirez-Rangel moved for disclosure of the informant's identity. The government moved to dismiss the conspiracy charge. The district court dismissed the conspiracy charge with prejudice, granted reconsideration of Lobo-Osuna's motion, and then ...