Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1989)

MEMORANDUM^* 

Luis Alberto Renteria-Alvarez and Jesus Alberto Ramirez-Robles appeal from the order denying their motion to dismiss the indictment. They seek reversal in this interlocutory appeal on the following grounds:

One. The government was guilty of prosecutorial misconduct by failing to present exculpatory evidence.

Two. The government was guilty of prosecutorial misconduct by presenting false and misleading testimony to the grand jury.

Three. The Government failed to present any evidence to the grand jury that Renteria-Alvarez was an adult, an essential element of the crimes charged in counts three and four of the indictment. We have concluded that each of these contentions lack merit and affirm.

* Interlocutory review of a claim of prosecutorial misconduct before the grand jury is available in this circuit. United States v. Eccles, 850 F.2d 1357, 1363 (9th Cir. 1988) (citing United States v. Benjamin, 812 F.2d 548, 550-554 (9th Cir. 1987)). We review a motion to dismiss for alleged prosecutorial misconduct independently without deference to the district court's determination that no misconduct occurred. United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988). We review for abuse of discretion a district court's refusal to exercise its supervisory powers to dismiss an indictment for alleged prosecutorial misconduct. Id.

II

Ramirez-Robles contends that the government had a duty to present to the grand jury evidence of a government expert's opinion that "no identifications were effected" in comparing Ramirez-Robles' fingerprints with the "ridge detail" on the pistol, ammunition clip, and live rounds of ammunition. The government has no duty to present exculpatory evidence to the grand jury. United States v. Busher, 817 F.2d 1409, 1411 (9th Cir. 1987). Ramirez-Robles' reliance on the California Supreme Court's decision in Johnson v. Superior Court, 15 Cal. 3d 248 (1975) is misplaced. We concluded in United States v. Smith, 595 F.2d 1176 (9th Cir. 1979), that Johnson does not reflect "the rule in the federal system." Id. at 1181. Because disclosure of exculpatory evidence is not required in this circuit, the prosecutor's failure to present the expert's opinion concerning the incomplete examination of Ramirez-Robles' prints was not prosecutorial misconduct.

Contrary to the assertion in the appellants' opening brief, the expert did not conclude that their fingerprints "were not on the firearm." Instead, the report shows that the expert's examination was not complete. Based solely on the fingerprints, the expert was unable to effect an identification. The expert requested that "inked palm prints be submitted for comparison purposes to complete the examination." (emphasis added). The incomplete examination proves no more than the expert was unable to effect an identification based on the prints previously submitted to him. Under these circumstances, the district court did not abuse its discretion in refusing to dismiss the indictment under its supervisory powers.

III

Ramirez-Robles asserts that dismissal of the indictment is compelled in this matter because the government presented false and misleading testimony to the grand jury. United States Custom Agent Albert Volgrinic testified before the grand jury that Ramirez-Robles stated: "I just want to go to jail." The Custom's Report of Investigation shows, however, that Ramirez-Robles, stated: "I just don't want to go to jail."

No showing has been made that the witness intentionally testified falsely or that the prosecutor who presented the evidence to the grand jury knowingly presented perjured testimony. Under the law of this circuit, dismissal is not warranted unless the appellant demonstrates that the government "obtained an indictment by knowingly submitting perjured testimony to the grand jury." United States v. Claiborne, 765 F.2d 784, 791 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986). Accord United States v. Samango, 607 F.2d 877, 880-82 (9th Cir. 1979). The district court did not err in denying the motion to dismiss on this ground.

IV

Renteria-Alvarez argues that the indictment must be dismissed because no evidence was presented that he was over eighteen years of age as required to prove the elements of the crimes charged in counts 3 and 4 of the indictment. This contention is a challenge to the adequacy of the evidence presented to the grand jury. A defendant cannot challenge an indictment on the ground that the evidence presented to the grand jury was inadequate. Costello v. United States, 350 U.S. 359, 363 (1956); United States v. DeLuca, 692 F.2d 1277, 1280 (9th Cir. 1982).

Appellants argue that this principle is inapplicable where there is no evidence whatsoever on an element of the crime. They rely on the district court's opinion in United States v. O'Shea, 447 F. Supp. 330, 332 (S.D. Fla., 1978). We need not decide whether O'Shea is consistent with the law of this circuit as reflected in DeLuca because testimony was presented from which the jury could infer that Renteria-Alvarez was an adult. The adequacy of this evidence cannot be reviewed in this appeal. Evidence was presented to the grand jury that " [t]he juvenile was driving the pickup and Jesus Alberto Renteria-Alvarez was the passenger in the pickup." The jury could reasonably infer from this evidence that the witness believed that Renteria-Alvarez was an adult. While this evidence might not be sufficient to persuade a rational petit juror beyond a reasonable doubt that Renteria-Alvarez was an adult, it is sufficient to demonstrate to the grand jury that probable cause existed to indict him.

AFFIRMED.