Unpublished Disposition, 914 F.2d 265 (9th Cir. 1990)

No. 89-50373.

United States Court of Appeals, Ninth Circuit.

Before POOLE and DAVID R. THOMPSON, Circuit Judges, and PRO, District Judge.^* 

MEMORANDUM^** 

STATEMENT OF FACTS

Defendant-Appellant Enrique Valles was convicted of knowingly distributing approximately two kilograms of cocaine, in violation of 21 U.S.C. § 841(a) (1), after selling the cocaine to a confidential government informant, Dora Aquino. Drug Enforcement Agency ("DEA") agents in Texas had notified the DEA in Los Angeles that Aquino was a confidential informant and would be meeting a man in Los Angeles to obtain cocaine. Aquino was sent to Los Angeles by Esteban Duran, a drug trafficker in Dallas. Upon her arrival in Los Angeles, Aquino met with DEA agents and set up a meeting with the man, who turned out to be Appellant Valles. Valles picked up Aquino at her hotel, and then they made several stops, including one at a house where Aquino testified Valles gave her the cocaine. When Valles took Aquino to the airport to fly back to Texas, he was arrested. Appellant now challenges his conviction on several grounds.

DISCUSSION

* First, Valles asserts that the district court erroneously refused to grant a continuance of the trial. The decision to grant or deny a requested continuance lies within the discretion of the district court, and is to be disturbed only for clear abuse of that discretion. United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985), modified on other grounds, 764 F.2d 675 (9th Cir. 1985). Valles is required to show that prejudice resulted from the denial of the requested continuance. Id. at 1359.

Valles requested a continuance in order to investigate the backgrounds of Dora Aquino and Esteban Duran, for whom Aquino was acting as courier. Valles claims that he was informed of their identities only five days before trial, and that if the court had granted more time to discover information with which to cross-examine Aquino, "Mr. Valles would have been in a position at trial to further undermine the credibility and veracity of Ms. Aquino's crucial testimony." Appellant's Opening Brief at 10. However, Valles never informs this Court what information would have been found or how it would have helped him. He thus fails to establish the required prejudice resulting from the denial of his request for a continuance.

II

Valles next contends that documents reviewed in camera by the district court contain Brady material that should have been turned over to him. Under Brady v. Maryland, 373 U.S. 83, 87 (1963), a defendant is entitled to discovery of all potentially exculpatory material. The Supreme Court has held that this includes evidence relating to the credibility of a key government witness. Giglio v. United States, 405 U.S. 150, 154-55 (1972). The failure to turn over such evidence violates a defendant's right to a fair trial, and constitutes Constitutional error, only if "the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." United States v. Bagley, 473 U.S. 667, 678 (1985).

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. at 682. The decision of a district court regarding suppression of Brady material is reviewed de novo. United States v. Pisello, 877 F.2d 762 (9th Cir. 1989); United States v. Lehman, 792 F.2d 899, 901 (9th Cir.), cert. denied, 479 U.S. 868 (1986); but see United States v. Michaels, 796 F.2d 1112, 1115 (9th Cir. 1986) (reviewing district court's decision that notes did not contain Brady material for abuse of discretion), cert. denied, 479 U.S. 1038 (1987).

At trial, Aquino testified during cross-examination that she had cooperated with law enforcement authorities in Texas in the past, during which she also had contact with Valles. Valles requested production of DEA reports regarding that cooperation in the hopes of exposing inconsistencies or inaccuracies in Aquino's testimony. Valles particularly wanted to contradict Aquino's statement that she had been paid for past cooperation relating to him. The government responded that Aquino had not been paid for those particular transactions, but further stated that she had been paid for other cooperation and she would have no way of knowing for which transactions she was compensated.

The district court ordered the DEA reports pertaining to Aquino's cooperation in Texas produced for in camera inspection to determine whether they contained any Brady material. Following that inspection, the court stated that the reports did not contradict Aquino's testimony in any way and largely covered different topics than had been testified to. The district court ordered the reports sealed and made a part of the record (Exhibits 105-108). This Court has reviewed the same DEA reports in camera and concludes that the district court did not err in finding the reports did not contain any Brady material.

III

Valles further claims that the district court erred in refusing to order the government to produce law enforcement agents from Texas, who had supervised Aquino's prior informant activities in relation to Valles.

Again, counsel wished to obtain evidence that Ms. Aquino had testified falsely regarding her prior informant activities in relation to Mr. Valles. In particular, counsel wished to establish that she had lied when she claimed she had been paid for her prior cooperation relating to Mr. Valles.

Appellant's Opening Brief at 14. However, as noted above, Valles fails even to establish that Aquino was lying about that payment, because she knew only that she received money and would not have been told exactly what it was for. Thus, though the statement may have been inaccurate, it was not a lie by Aquino. Further, it was such a collateral issue that the district court did not abuse its discretion in refusing to fly the agents in from Texas, especially where Valles' cross-examination of Aquino demonstrated her bias, motives, cocaine addiction, and other factors to call her credibility into question.

IV

Valles next argues that the district court improperly limited his cross-examination, thereby violating his Sixth Amendment right of confrontation. Although wide latitude must be given to defendants in their cross-examination of key government witnesses, "broad discretion [is] given trial judges to restrict the scope of cross-examination and prevent time-wasting exploration of collateral matters." United States v. Uramoto, 638 F.2d 84, 86 (9th Cir. 1980). The Supreme Court has held:

[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness."

Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). Whether there has been a violation of the right of confrontation is a question of law which this Court reviews de novo. United States v. Jenkins, 884 F.2d 433, 435 (9th Cir.), cert. denied, 110 S. Ct. 568 (1989). Once a violation of the Confrontation Clause is found, the Court must determine whether the error was harmless under the standard laid out in Chapman v. California, 386 U.S. 18, 24 (1967). Van Arsdall, 475 U.S. at 684.

The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

Id.

Valles sought to recall Aquino, after he had already substantially attacked her testimony during cross-examination, to question her about her present residence, her residence on the day in question, her present and prior employment, and her marital and family status. The district court denied the request as being tangential and possibly endangering the witness.

The Supreme Court stated in Smith v. Illinois, 390 U.S. 129, 131 (1968):

[W]hen the credibility of a witness is in issue, the very starting point in "exposing falsehood and bringing out the truth" through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

Accord United States v. Harris, 501 F.2d 1, 7-8 (9th Cir. 1974). The Ninth Circuit noted in Harris that there had been no other opportunities for investigation and examination in that case. Other areas besides the witness' current residence had been cut off by the lower court, and this factor contributed to the Court's conclusion that the questioning regarding the witness' current residence was essential. Id. at 9 n. 13. Further, where other testimony is adequate to "identify the witnesses with their environment," Smith, 390 U.S. at 131, and reveal their biases and motives, it is not error to limit the cross-examination regarding the witness' residence. United States v. Chavez-Vernaza, 844 F.2d 1368, 1376-77 (9th Cir. 1987). See also Jenkins, 884 F.2d at 436 (Confrontation Clause violation only if district court denies jury sufficient information to evaluate prejudice and motivations).

Under the circumstances of this case, the district court correctly refused to re-open examination of Aquino for questions on these collateral matters. Further, even if it was error to so restrict Valles' cross-examination, that error was harmless.

Valles also appeals the refusal of the district court to permit questions regarding the name of a man other than Duran for whom Aquino retrieved drugs, regarding locations to which she traveled for Duran, and regarding the identity of the source of drugs for Aquino. Valles fails, however, to demonstrate how any of these questions are material or how the inability to gain their answers prejudiced his case. These restrictions by the district court did not violate Valles' Sixth Amendment right to confront the witness.

V

Valles next contends that the filing of an Information pursuant to 21 U.S.C. § 841(b) (1) (B), upon which a sentencing enhancement was based, constituted vindictive prosecution in violation of his due process rights.

Valles had filed several pre-trial motions related to discovery and suppression of evidence. The hearing on those motions was to be on the Friday before the Tuesday on which trial was to begin. Two days before the hearing, the prosecutor contacted Valles' counsel and informed him that if Valles did not plead guilty prior to the hearing, she would file an Information based on a prior drug conviction, pursuant to 21 U.S.C. § 851. The consequence of the Information would be an increase of five years in the mandatory minimum sentence upon conviction. Because Valles could not decide whether or not to plead guilty before that hearing, Valles' counsel asked the prosecutor if she would delay filing the Information if there was a continuance on the motions hearing. The prosecutor agreed. However, the district court denied Valles' request to continue the motions hearing, and Valles' counsel withdrew the motions on the understanding that, if Valles did not plead guilty before trial, the Information would be filed. In fact, that is what happened. Valles now claims that the threat of filing the Information was used to get him to withdraw his motions, and that threat constitutes vindictive prosecution in violation of his right to due process.

The Supreme Court has ruled that a prosecutor cannot increase the charges against a defendant in retaliation for the defendant's exercise of a Constitutional or statutory right. Blackledge v. Perry, 417 U.S. 21, 27 (1974). No actual showing of malice is required, and vindictiveness is presumed when the circumstances create the appearance of vindictiveness. Adamson v. Ricketts, 865 F.2d 1011, 1017 (9th Cir. 1988), cert. denied, 110 S. Ct. 3287 (1990). The burden is then shifted to the prosecution to justify its decision. United States v. Griffin, 617 F.2d 1342, 1346 (9th Cir.), cert. denied, 449 U.S. 863 (1980).

[T]he appearance of vindictiveness results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.

United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir. 1982).

In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Supreme Court held that no due process violation occurs where a prosecutor during plea negotiations threatens to re-indict a defendant with more serious charges if that defendant refuses to plead guilty to the lesser offenses originally charged.

We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.

Id. at 365.

The Government argues that here Valles waived his right to raise this claim of vindictive prosecution by not raising it below. Valles responds that no formal written motion is required to avoid waiver, so long as the issue is raised orally to the district court. United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir. 1975), cert. denied, 426 U.S. 952 (1976). However, in the Oaks case, the actual defense was raised orally before the district court. In contrast, in this case the general factual background was raised before the district judge in the context of seeking a continuance and explaining the withdrawal of the motions. However, although Valles had several opportunities to do so prior to, during, and after trial, he failed to raise the claim of vindictive prosecution so as to enable the trial court to address the matter.

Moreover, it appears here that the prosecutor was engaging in permissible plea bargaining under Bordenkircher and not impermissible vindictive prosecution. The prosecutor did not request that the motions be withdrawn, but only established the hearing on those motions as the deadline to accept the plea bargain. Valles' counsel chose to withdraw the motions to give his client time to consider his options. Under these circumstances, there is no "realistic or reasonable likelihood" that the threat or actual filing of the Information was intended as punishment for filing the motions, and Valles has not established vindictive prosecution.

VI

Finally, Valles claims that the enhancing Information filed pursuant to 21 U.S.C. § 841(b) (1) (B) was based upon an invalid 1983 California conviction for possession of .4 grams of cocaine. 21 U.S.C. § 851(e) provides that a conviction on which an enhancing Information is based may not be challenged if it occurred more than five years before the filing of the Information. A Constitutional challenge to information relied on in sentencing is reviewed de novo. United States v. Williams, 891 F.2d 212, 214 (9th Cir. 1989), cert. denied, 110 S. Ct. 1496 (1990).

In United States v. Kinsey, 843 F.2d 383 (9th Cir.), cert. denied, 109 S. Ct. 99 (1988), this Court held that the enhanced penalty provisions of 21 U.S.C. § 841(b) (1) "do not create criminal charges which necessarily guarantee a person his or her right to a jury trial," but "merely set forth aggravating circumstances the presence of which require a trial court to increase the sentence of a habitual offender." Id. at 392. Thus Valles was not entitled to a full-blown trial on the conviction he wished to challenge. Moreover, this Court has held that it is not a violation of due process to enhance a sentence based on the arrest underlying a void conviction, United States v. Williams, 782 F.2d 1462 (9th Cir. 1985), or based on the activity that leads to an invalid conviction. United States v. Fleishman, 684 F.2d 1329, 1344 (9th Cir.), cert. denied, 459 U.S. 1044 (1982).

In a case under the Sentencing Guidelines in which a defendant's sentence was enhanced as a result of a juvenile conviction without a jury trial, this Court held that, so long as it was not unconstitutional to convict on the original charge without a jury, it did not violate the defendant's right to due process to later enhance a sentence based on that conviction. United States v. Williams, 891 F.2d 212, 215 (9th Cir. 1989), cert. denied, 110 S. Ct. 1496 (1990). Similarly, absent some error of Constitutional magnitude in Appellant's original conviction, Appellant's due process rights were not infringed by the enhancement of his sentence based on the prior conviction.

Valles sought to challenge his 1983 conviction in California on the basis that, prior to his guilty plea to that charge, he was not informed that conviction could result in his deportation, exclusion from admission to the United States, or denial of naturalization. Under California Penal Code Sec. 1016.5, a non-citizen defendant must be informed of these consequences before he enters a guilty plea. On the standard, pre-printed minute order from the hearing at which Valles' guilty plea was taken, the box regarding advising the defendant of the consequences for a non-citizen was not checked. On the other hand, the box reflecting advising of legal and Constitutional rights was checked, and the transcript of the hearing was no longer available to verify whether the consequences were called to Valles' attention.

Valles asserts that the prior conviction is facially invalid, and it is fundamentally unfair to keep him from raising its invalidity when that conviction was the basis for a mandatory increase of five years of incarceration and four years of parole. However, the prior conviction is not facially invalid. California Penal Code Sec. 1016.5 provides:

If ... the court fails to advise the defendant as required by this section ... the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.

(Emphasis added). The fact that the judgment may be vacated only on defendant's motion indicates that the conviction is not invalid, but is voidable by the defendant if he moves to withdraw his plea. It is undisputed that Valles never moved to withdraw that plea. Further, there is no assertion that Valles would not have plead guilty if he was told of the consequences of a conviction for a non-citizen. Under the circumstances, Valles' due process rights were not violated by the enhancement of his sentence by virtue of his prior conviction.

AFFIRMED.