Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1988)

MEMORANDUM^* 

Marco Antonio Castro-Ontiveros (Castro) appeals from the judgment of conviction entered, following a trial by jury, for conspiracy to possess, distribute, and aid and abet the possession and distribution of cocaine, in violation of 21 U.S.C. § 846, and for possession of approximately 510 kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. § 8412(a) (1).

Castro contends that he was denied the right to due process and compulsory process because the Government facilitated the voluntary departure from the United States of a material witness for the defense. Castro also asserts that the district court abused its discretion in imposing a sentence of 25 years in prison for Count One, while sentencing a co-defendant to 10 years for the same offense. We affirm.

PERTINENT FACTS

On May 26, 1987, the police began a surveillance of Mario and Lourdes Fernandez-Kincade (the Kincades). On May 29, 1987, the police observed a meeting between Mario Fernandez-Kincade and Castro in the parking lot of a Holiday Inn in Riverside, California. Following this meeting, the police observed Castro drive off in an orange colored Datsun with the Kincades following in a motorhome. The vehicles were driven onto Interstate 91. The vehicles pulled onto the shoulder of the freeway. Castro and the Kincades switched vehicles.

The Kincades then drove the Datsun to a shopping center parking lot. Castro drove the motorhome to a house located a short distance away, at 8641 Cypress Avenue, in Riverside, California. Detective Joseph Dubois drove a surveillance van to a location that provided a view of the area between the motorhome and the residence at 8641 Cypress Avenue.

After Castro alighted from the motorhome, he spoke with a woman outside the residence. Castro looked in the direction of the surveillance van several times. The woman left the property and drove off in a pickup truck. She returned a few minutes later and spoke with Castro. Castro pointed directly at the surveillance van. He then parked a red, stake-bed truck behind the motorhome. The truck partially blocked Detective Dubois' view of the motorhome.

Detective Dubois testified that he saw Castro make several trips between the detached garage and the motorhome. He observed Castro push a blue wheelbarrow filled with burlap sacks. Detective Dubois saw the outline of rectangular lumps the size of kilogram bricks of cocaine. Detective Dubois radioed this information to other officers. After Castro had loaded several burlap sacks into the motorhome, German Garcia arrived at the residence. The two men appeared to argue. Both men entered the motorhome for a few minutes.

After Garcia left the motorhome, Castro finished transferring the burlap sacks from the garage to the motorhome. He then backed the motorhome out and drove away. When the motorhome passed the shopping center where the Kincades were waiting in the Datsun, they pulled out and followed Castro. Not far from the freeway, both vehicles pulled to the side of the road. The Kincades left the Datsun and entered the motorhome. Castro walked toward the Datsun. At that point, the parties were arrested. Inside the motorhome, the police saw ten burlap sacks. A warrant was obtained to search the burlap sacks. They contained approximately 245 kilograms of cocaine.

The residence and garage at 8641 Cypress Avenue were also searched pursuant to a warrant. The police found six stacks of particle board in the garage. The stacks of particle board were marked on the outside with alphanumeric symbols such as "555 AMI,""362(B1)," and "440(B1)." The center of each stack had been hollowed out to make compartments measuring 3 feet by 6 feet by 3 feet deep. The police found 265 kilograms of cocaine in burlap sacks in one of these compartments.

A small notebook and file card were found in the breast pocket of Castro's shirt in a search conducted as an incident to his arrest. The file card contained the phone number of the hotel where the Kincades had been staying and a number matching their room number at the hotel. The notebook also contained a series of numbers corresponding exactly to the alphanumeric symbols written on the particle board containers found in Garcia's garage. The notebook also had entries which stated, "Arrived with Germ," "All of this material arrives on 5-23-87," and "All this material arrives by 5-28-87." Finally, the notebook contained an entry that stated, "Expenses made--German--$10,000."

Gabriel Garcia Ceballos (Ceballos) lived in a trailer behind Garcia's house. He was a Mexican citizen who was in this country illegally. On July 30, 1987, the Government moved to designate Ceballos as a material witness. The motion was granted. A $25,000 bond was set to secure Ceballos' presence at trial. Ceballos was unable to post bond. He was held at the United States Immigration and Naturalization Service detention facility in Inglewood, California (E.C.I.), from August 4, 1987, until June 10, 1988. During this time, Ceballos was interviewed by representatives of the United States Attorney's Office. Ceballos was also interviewed by defense counsel. None of the defendants sought a court order designating Ceballos as a material witness for the defense or requested that a subpoena be issued to insure his presence at trial.

On June 10, 1988, Ceballos was erroneously released from E.C.I. pursuant to an order from Assistant United States Attorney (AUSA) Manuel Medrano. At the time of Ceballos' release, AUSA Medrano was not aware of his status as a material witness. Rather, AUSA Medrano ordered Ceballos' release on the erroneous but honest assumption that Ceballos had fallen through the cracks and had been detained "unfairly." Ceballos returned to Mexico on June 10, 1988.

Upon learning of Ceballos' release, Castro's attorney filed a motion to dismiss the indictment pursuant to United States v. Valenzuela-Bernal, 458 U.S. 858 (1982). The Government filed a written opposition. An evidentiary hearing was conducted on June 29-30, 1988. The district court found that Ceballos' release was not made with the intent to deprive the defense of a material witness. The motion was dismissed on the ground that Castro had failed to demonstrate that Ceballos could have provided material and favorable testimony or that there was a reasonable likelihood that it would have changed the outcome of the case.

DISCUSSION

I. Ceballos' Release and Voluntary Departure

Castro contends that the district court erred in concluding that he was not prejudiced by the inability to call Ceballos as a witness as a result of the Government's conduct in facilitating his voluntary departure from the United States. In Valenzuela-Bernal, 458 U.S. 858 (1982), the United States Supreme Court held that when a witness has been deported prior to a trial in a criminal proceeding, the defendant can demonstrate a denial of the right to due process and compulsory process if he makes "a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." Id. at 873. The Court further held that "sanctions will be warranted for deportation of alien witnesses only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact." Id. at 873-74.

We have not established a standard of review for determining whether the deportation or voluntary departure of a material witness violates a criminal defendant's due process and compulsory process rights under Valenzuela-Bernal. Castro contends that we should apply a de novo standard. The Government contends that a clearly erroneous standard would be more appropriate. We conclude that Castro has not made a plausible showing that Ceballos' testimony would be material and favorable under either standard of review. Therefore, we need not resolve this issue in this matter. Furthermore, since we conclude that Castro does not satisfy the requirements of Valenzuela-Bernal, we do not attempt to resolve the numerous novel issues raised by the Government which would serve as a procedural bar to reaching the merits of this case or which would require a stricter showing of materiality and prejudice or a showing of bad faith. Instead, we will wait to resolve these issues when we are presented with a case in which they are dispositive.

Castro was charged in Count One with being involved in a conspiracy that began "on or about a date unknown, and continuing to in or about May 1987," with the Kincades, German Garcia, and other unindicted coconspirators, to possess and distribute cocaine, and knowingly aiding others in doing so. In the overt acts numbered 3, 4, 6, and 7, the Government alleged that in furtherance of the conspiracy, Castro exchanged vehicles with the Kincades, loaded their motorhome with cocaine at German Garcia's residence, and returned it to the Kincades. To prove these allegations, the Government offered the testimony of police officers who testified that on May 29, 1987, they witnessed the exchange of vehicles, observed Castro drive the motorhome to German Garcia's residence, load it with burlap sacks, and return it to the Kincades who were waiting in Castro's automobile.

At the time of Castro's arrest, the officers found 245 kilograms of cocaine in the motorhome. A search of Castro's shirt pocket revealed a notebook containing coded numbers and letters and a reference to a delivery of "material" on May 27, 1987, and a payment of $10,000 in " [e]xpenses made" set forth next to the name "German." In searching German Garcia's garage, the officers found a large quantity of cocaine hidden in hollowed out stacks of particle board. These boards were made with precisely the same coded numbers and letters that appeared in the notebook found in Castro's shirt pocket.

In support of the motion to dismiss the indictment, Castro offered the declaration of his attorney, Barry Tarlow. Mr. Tarlow alleged that he spoke to Ceballos in February of 1988. Mr. Tarlow declared that he believed that Ceballos would testify, if available, that (1) he never saw Castro at German Garcia's residence or garage before May 29, 1987; (2) he did not see Castro "in any proximity to the contraband;" (3) "Mr. Castro did not have access to or control or dominion over the garage or contraband that was found on the premises;" (4) Castro was never mentioned by Garcia, or anyone else in his household "in connection with any illegal activities;" (5) he never saw Castro talking to Garcia; (6) he saw the motorhome at German Garcia's residence on May 29, 1987; (7) Detective Dubois could not have observed Castro loading sacks into the motorhome; and (8) Castro did not order him to go into the Garcia residence while the motorhome was being loaded.

Mr. Tarlow also alleged that "if I had a choice I preferred to cross-examine Mr. Ceballos." Mr. Tarlow was not aware that Ceballos had been released until June 17, 1987. The Government did not inform the defense that Mr. Ceballos was to be deported and would not be available for trial.

Castro also filed the declarations of two experienced criminal defense lawyers. Each alleged that they had read Mr. Tarlow's declaration. Each stated that in their opinion, Ceballos's testimony would have been sufficient to raise a reasonable doubt regarding Castro's participation in a conspiracy. Specifically, each attorney in identical language alleged that he would have relied on Ceballos' testimony in his closing argument "as showing that defendant Castro had no contact with defendant Garcia prior to the events on the day Castro was arrested and thus was not involved in any drug [conspiracy] with Mr. Garcia."

In arguing the materiality of Ceballos' testimony to the defense, Castro's attorney asserted that the deported witness' testimony would have refuted the government's theory that Castro was part of the conspiracy prior to May 29, 1987. Castro's counsel argued that on page 4 of the indictment, the Government alleged "my client was storing cocaine at these premises with an intention to later distribute it." (June 30, 1987, R.T. 46-47). The redacted indictment filed on June 20, 1987, does not contain this allegation. Instead, it provides:

1. On or about February or March 1987, defendant German Garcia built or caused to be built a detached garage behind his residence at 8641 Cypress Avenue, Riverside, California for the purpose of storing large quantities of cocaine for distribution.

2. On or about March, 1987, defendant German Garcia caused to be built a fence behind his house at 8641 Cypress Avenue, Riverside, California that separated the garage from the house, thereby shielding narcotics activities from observation from the street.

(Appellee's E.R. at 4) (emphasis added).

The only references to Castro on page 4 of the redacted indictment recite his activities "on or about May 29, 1987."¹  Id. Ceballos' testimony that he did not see Castro at the Garcia premises prior to May 29, 1987, would not provide a defense to the evidence that Castro conspired with the Kincades to deliver 245 kilograms of cocaine to them in their motorhome on that date. Furthermore, the fact that Ceballos did not see Castro at the Garcia residence does not prove that appellant was not on the premises at a time when Ceballos was not present. Such testimony would not rebut the undisputed evidence that Castro was present at the Garcia residence on May 29, 1987, or that he drove away from there in a motorhome containing 245 kilograms of cocaine.

Castro did not testify at trial. The defense called a witness, Jeanine Frank, who testified that she sat in a van at the same location as Detective Dubois. She told the jury that it was not possible to identify a person in the place where the motorhome was parked or to discern brick-shaped packages in a wheelbarrow from that distance. To corroborate her testimony, photographs taken at the same distance were introduced into evidence. Ceballos' proposed testimony, as recited in the Tarlow declaration, that Detective Dubois could not have seen Castro loading burlap sacks into the motorhome would have been cumulative to the testimony presented by Jeanine Frank. Cumulative evidence does not come within the Valenzuela-Bernal rule. 458 U.S. at 873.

The Government submitted the declarations of Special Agent Jesse J. Ibarra of the United States Custom's Service and Assistant United States Attorney Roel C. Campos. Each of them declared that Ceballos told them that he saw Castro loading burlap sacks into the motorhome. Ceballos' statements to these declarants directly contradicted those he made to Mr. Tarlow. Had Ceballos testified as a defense witness, he would have been impeached with the statements made to the Government witnesses.

Mr. Tarlow's statement to the district court that he would have preferred to cross-examine Ceballos is inconsistent with Castro's argument to this court that he was prejudiced by the fact that Ceballos was not available as a defense witness at trial.

The Government's evidence that Castro agreed with his coconspirators, the Kincades, to deliver cocaine to them from German Garcia's garage is overwhelming. Ceballos' testimony could not have raised a reasonable doubt concerning the contents of the motorhome or the garage, or the fact that Castro was carrying a notebook whose entries tied him to the cocaine cache at the German Garcia residence. Thus, Ceballos failed to meet the requirement of Valenzuela-Bernal that the testimony of the absent witness would have affected the jury's verdict. 458 U.S. at 873-874. The district court did not err in denying Castro's motion to dismiss.

Castro contends that the district court abused its discretion in sentencing him to a significantly greater sentence than Garcia. A district court's sentence is reviewed for abuse of discretion. United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 171 (1988). If the sentence is within statutory limits, it is generally not subject to review. Id.

Castro and Garcia were both convicted of conspiracy to possess, distribute and aid-and-abet others in the possession and distribution of cocaine (Count One). Castro was also convicted of possession with intent to distribute approximately 510 kilograms of cocaine (Count Two). The jury failed to reach a verdict against Garcia on the possession charge. Garcia was convicted, however, on the less serious charge of structuring bank transactions to evade currency reporting requirements (Count Five). The conduct in this matter occurred prior to the effective date of the Sentencing Guidelines.

Castro received concurrent 25-year prison terms on Counts One and Two. As to Count Two only, Castro received an additional 10 years of supervised release subject to specified terms and conditions. Castro does not claim that his sentence is outside the statutory limits. Garcia received a 10-year prison term on Count One and a concurrent 5-year prison term on Count Five. Castro's disparate sentencing argument applies solely to the sentence imposed on the conspiracy charge.

This court has held that "the imposition of disparate sentences alone is not an abuse of discretion." United States v. Castro, 887 F.2d 988, 1001 (9th Cir. 1989). "It is within the discretion of the court to impose disparate sentences as long as the judge takes into account individual circumstances." United States v. Vaccaro, 816 F.2d 443, 458 (9th Cir.), cert. denied sub nom. Alvis v. United States, 484 U.S. 914 (1987). Furthermore, " [a] judge is not required to give reasons for a disparate sentence in the absence of any evidence that a defendant is being punished for exercising his right to stand trial." Castro, 887 F.2d at 1001.

There is no evidence that Castro's greater sentence was imposed as a punishment for exercising his right to stand trial. Garcia exercised the same right. Moreover, there is nothing in the record that suggests that the district court did not take into account individual circumstances in imposing the disparate sentences on Castro and Garcia. The record supports a conclusion that Castro was more involved in the conspiracy and, therefore, more culpable than Garcia. Castro transported the contraband between the garage and the motorhome. Castro possessed the record book containing a list of the containers found in Garcia's garage.

At the sentencing hearing, Mr. Tarlow requested that certain statements characterizing Castro as "the organizer with Columbian drug trafficking connections" be stricken from the presentence report (PSR). The United States Attorney and the court agreed. Mr. Tarlow did not object to the statement in the PSR that " [t]he defendant, German Garcia, is viewed as one individual recruited by Castro-Ontiveros to store large quantities of cocaine in the garage of his residence". The PSR also stated that " [d]efendant Castro-Ontiveros is viewed by the arresting agency and the Government as the most culpable of all the defendants."

Based on the record before us, there was a sufficient basis to justify the harsher sentence imposed on Castro-Ontiveros. Thus, the district court did not abuse its sentencing discretion.

CONCLUSION

The district court did not err in determining that Castro failed to make a plausible showing that Ceballos' testimony would have been favorable and material to his defense. Therefore, the court correctly denied Castro's motion to dismiss the indictment against him. The court did not abuse its discretion in imposing a harsher sentence on Castro than the one ordered for his co-defendant.

AFFIRMED.