Unpublished Disposition, 912 F.2d 471 (9th Cir. 1990)

MEMORANDUM^* 

Appellant Jesus Vasquez appeals his conviction on one count of conspiracy to distribute controlled substances, 21 U.S.C. §§ 841(a) (1) and 846, and two counts of distribution of a controlled substance--one involving approximately 2 kilograms of cocaine, and one involving about 16 pounds of marijuana, 21 U.S.C. § 841(a) (1). He challenges several of the district court's rulings at trial. We affirm.

DISCUSSION

Vasquez alleges error in the district court's refusal to suppress evidence arising from a warrantless search of a package found to contain narcotics. We review de novo the validity of a warrantless search. United States v. Howard, 828 F.2d 552, 554 (9th Cir. 1987).

Oscar Bustamante, a clerk for the United Parcel Service, first discovered the contraband in the package when he became suspicious of its contents. United Parcel Service employees have a right to inspect packages they accept for shipment, based on their duty to refrain from carrying contraband. See Illinois v. Andreas, 463 U.S. 765, 769 n. 1 (1983). This search, lawfully conducted by a private person without governmental assistance or encouragement, did not implicate the fourth amendment. See United States v. McGreevy, 652 F.2d 849, 851 (9th Cir. 1981).

The subsequent inspection of the package by agents of the El Paso Police Department and the Drug Enforcement Agency did not convert the private search into a government search subject to the fourth amendment. See Andreas, 463 U.S. at 769 n. 2. Once Mr. Bustamante opened the package and found illicit drugs, Vasquez lost any legitimate expectation of privacy in the package. Id. at 771. No warrant was needed for the subsequent inspection because there was no "search" subject to the Warrant Clause.¹  Id. Therefore, the district court properly allowed evidence concerning the discovery of the contraband.² 

Prior to his indictment, Vasquez made inculpatory statements regarding the narcotics transaction to Dale Davidson, a co-defendant who was cooperating with the government in the investigation. These conversations were recorded and admitted at trial. Vasquez contends that these recordings were introduced in violation of his fifth and sixth amendment rights. We discern no merit in this argument.

There is no indication that Vasquez' incriminating statements were the product of any coercion. His conversations with Davidson were wholly voluntary and did not implicate the concerns of the fifth amendment. See Hoffa v. United States, 385 U.S. 293, 303-04 (1966). Moreover, we reject Vasquez' contention that because he had become the focus of a government investigation at the time of the recorded conversation, his fifth amendment right to counsel had attached. See Beckwith v. United States, 425 U.S. 341, 347 (1976). Since Vasquez' statements to Davidson were not made in the course of a "custodial interrogation" there was no fifth amendment violation. United States v. Kenny, 645 F.2d 1323, 1337-38 (9th Cir.), cert. denied, 452 U.S. 920 (1981).

The Supreme Court has held that a person's sixth amendment right to counsel attaches only "at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 688-89 (1972). At the time of the recorded conversation, Vasquez had not yet been charged, arrested or indicted. Because this case was still in the investigative stage when the incriminating statements were recorded, no right to counsel had attached.³  See Kenny, 645 F.2d at 1338 (Tape recording of conversation between government information and defendant, recorded prior to defendant's indictment and played at defendant's trial, did not violate sixth amendment right to counsel); see also United States v. Pace, 833 F.2d 1307, 1310-12 (9th Cir. 1987) (sixth amendment right to counsel does not attach upon the filing of a complaint against the defendant, the issuance of a warrant of arrest, or the defendant's arrest), cert. denied, 486 U.S. 1011 (1988).

Vasquez argues that the government mischaracterized the nature of any plea agreement it had made with Davidson, thereby misleading the jury and impairing his opportunity to impeach Davidson's testimony. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. Even where evidence is suppressed, the conviction will be upheld unless there is any reasonable possibility that the suppressed evidence would have materially affected the verdict. United States v. Lehman, 792 F.2d 899, 901 (9th Cir.), cert. denied, 479 U.S. 868 (1986); United States v. Roberts, 783 F.2d 767, 770 (9th Cir. 1985). We review these questions de novo. Lehman, 792 F.2d at 901.

At trial, Davidson testified that he had entered into no formal agreement with the government to testify in exchange for a reduced sentence. Nevertheless, he indicated that he anticipated some leniency as a result of his cooperation. Nothing in the record suggests the existence of a more formal agreement. Vasquez' accusations appear to rest on mere speculation.

The jury was well aware of Davidson's bias in this case. At trial, Davidson testified that he was cooperating in hopes of reducing his sentence (RT at 177-78), the government admitted that Davidson was motivated to testify by the possibility of a reduced sentence (RT at 445), and Vasquez' counsel emphasized strongly that Davidson was testifying pursuant to an agreement with the government. We find no Brady violation under the circumstances of this case.

D. Evidence of Past Narcotics Transactions Among the Defendants

Vasquez also asserts that the trial court, in violation of Fed.R.Evid. 404(b), improperly allowed Davidson to testify regarding his relationship with Vasquez in prior drug deals. We review the district court's decision to allow this evidence for abuse of discretion. United States v. Bailleaux, 685 F.2d 1105, 1109-10 (9th Cir. 1982).

"Rule 404(b) is one of inclusion which admits evidence of other crimes or acts relevant to an issue in the trial, except where it tends to prove only criminal disposition." Heath v. Cast, 813 F.2d 254, 259 (9th Cir.), cert. denied, 484 U.S. 849 (1987) (quoting United States v. Sangrey, 586 F.2d 1312, 1314 (9th Cir. 1978) (emphasis in original). Vasquez was charged with conspiracy, an offense requiring proof of association and plan. The evidence of past dealings between Davidson and Vasquez was relevant to prove these elements. See United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986); see also, United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987). In addition, the evidence satisfies each of the factors we have identified as relevant to establish whether evidence of this kind should be admitted. See Bailleaux, 685 F.2d at 1109-10.

We next consider whether the district court abused its discretion in determining that the probative value of the evidence outweighs its prejudicial effect. Fed.R.Evid. 403. The record indicates that the district court adequately weighed the probative value and prejudicial effect of the evidence before admitting the evidence. The district court did not abuse its discretion in admitting testimony of Davidson's criminal history with the defendant.

E. Sufficiency of the Evidence of Vasquez' Participation

Vasquez maintains that the evidence at trial was insufficient to support his conviction. We will uphold the conviction if, when viewed in the light most favorable to the government and respecting the jury's ability to judge the credibility of the witnesses, resolve factual conflicts, and draw inferences, the evidence is sufficient that a rational jury could have found the elements of the crime beyond a reasonable doubt. United States v. Feldman, 853 F.2d 648, 654 (9th Cir. 1988), cert. denied, 109 S. Ct. 1164 (1989).

Here, Davidson identified Vasquez as the "broker" of the shipment of narcotics from El Paso to Montana. This testimony was corroborated by statements made by Vasquez himself during the course of taped telephone conversations. Davidson also testified that Vasquez regularly traveled to Montana following each transfer of narcotics and provided details of these trips. This testimony was corroborated through airline tickets, hotel reservations, and the testimony of other witness. In fact, Vasquez admits elsewhere that there was "abundant evidence in the record" of his participation in the distribution of narcotics. See Appellant's Opening Brief at 22; Appellant's Reply Brief at 2, 5. Vasquez is also vicariously liable for the distribution made by his coconspirators. See United States v. Arbelaez, 719 F.2d 1453, 1459 (9th Cir. 1983), cert. denied, 467 U.S. 1255 (1984). We conclude that there is ample evidentiary support for Vasquez' conviction.

Vasquez contends that the district court erred in not allowing the testimony of Charles Henry regarding statements made to Henry by Davidson and Vasquez. He suggests that such testimony is admissible under Fed.R.Evid. 801(d) (2) (E) as statements of coconspirators. We disagree. Vasquez tried to admit Henry's testimony in his own defense and to impeach Davidson. By its own terms, however, Rule 801(d) (2) (E) only applies where a statement by a coconspirator of a party "is offered against [the] party." Thus, the district court did not abuse its discretion in disallowing Henry's testimony.

Finally, Vasquez argues that the district court improperly declined to grant him a continuance to obtain the exculpatory testimony of codefendants Bobby Cage and Michael Price who took the stand and pleaded the fifth amendment. Cage and Price later pleaded guilty to the charges against them. Vasquez contends that the trial should have been continued until after Cage and Price pleaded guilty so they could have testified without fear of self-incrimination. We review a denial of a continuance for abuse of discretion. United States v. Pederson, 784 F.2d 1462, 1464 (9th Cir. 1986).

When a continuance is requested to obtain a witness, the accused is required to show, inter alia, that the witness can probably be obtained if the continuance is granted. United States v. Smith, 790 F.2d 789, 796 (9th Cir. 1986). Vasquez has not established that Cage and Price "had unconditionally agreed to testify." United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978). Moreover, although both codefendants ultimately pleaded guilty, there is no indication in the record that their intent so to plead was clear at trial. In addition, the possibility of state criminal liability may still have allowed Cage and Price to invoke the privilege against self-incrimination even after they had entered their pleas on the federal charges. See United States v. Berberian, 767 F.2d 1324, 1326 (9th Cir. 1985). Under these circumstances, the district court did not abuse its discretion in denying Vasquez' request for a continuance.

Conclusion

For the reasons stated above, we affirm the rulings of the district court.

AFFIRMED.