Unpublished Disposition, 937 F.2d 614 (9th Cir. 1990)

MEMORANDUM^* 

We must determine, among other issues, whether a defendant accused of drug-related crimes was deprived of his constitutional right to a fair trial because of the unavailability of a co-defendant's testimony.

* The facts in this case require lengthy recital. On October 10, 1989, a Drug Enforcement Administration (DEA) confidential informant (CI) contacted a member of the Tri-Cities, Washington, Metro Task Force. The CI said that on October 8, 1989, one Francisco Galven-Barajas (Barajas) had offered to sell heroin and cocaine to the CI. Accordingly, Metro Task Force officers arranged for the CI to participate in a controlled drug buy. Officers established surveillance of Barajas' residence, South 510 Hawthorne Street, in Kennewick, Washington. Shortly thereafter, Barajas left his house and proceeded to another residence at West 2220 Fifth Street, also in Kennewick. Barajas entered the residence briefly, returned to his vehicle, and then proceeded to a Safeway store parking lot, where he sold the CI a half ounce of heroin for $1,000.¹ 

Two additional controlled buys by the CI were conducted in the same manner, the second on October 19, 1989, and the third on November 2, 1989. Each time, Barajas drove to the residence on West 2220 Fifth and went into the house momentarily before meeting with the CI to conduct the heroin sale. Barajas sold the CI a half ounce of heroin in the second transaction, and a full ounce in the third. During the third transaction Barajas was accompanied by an unidentified hispanic male.

A series of phone calls between the CI and Barajas ensued, in which the CI sought to purchase six ounces of heroin. Barajas repeatedly told the CI that he had not yet had contact with the source of heroin. On November 15, 1989, Barajas told the CI that the heroin would come in no later than Sunday, November 19, 1989, at 8:00 p.m. A drug buy for six ounces of heroin was set up for November 20, 1989.

On the evening of November 19, 1989, the appellant, Juan Sepulveda, arrived in Kennewick from Santa Clara, California. Sepulveda stayed overnight with Barajas at the South 510 Hawthorne residence.

On November 20, 1989, law enforcement agents again surveilled the house at West 2220 Fifth. That afternoon, Sepulveda and Barajas arrived at the house in a blue Oldsmobile; Sepulveda was driving. According to Detective Simington, Sepulveda was wearing a jacket when he exited the vehicle. The pair entered the house, exiting approximately four to five minutes later. Sepulveda was dressed in the same manner as when he entered. Immediately after the duo returned to the vehicle, the car was surrounded by Task Force officers, and Barajas and Sepulveda were arrested.

A subsequent search of Sepulveda's car revealed approximately six ounces of black tar heroin, found under the passenger's front seat. When Sepulveda was arrested, a loaded .25 caliber semi-automatic pistol was found in the left pocket of his jacket. The gun contained one bullet in its chamber. A search of the West 2220 Fifth residence uncovered several stashes of cocaine and heroin, a .25 caliber semi-automatic assault rifle, two semi-automatic pistols, three revolvers, a large quantity of ammunition, and two triple beam scales, one of which was covered with drug residue.

Sepulveda did not dispute most of the facts recounted above. He did, however, offer an innocent explanation for his seemingly culpable conduct. In June of 1989, Sepulveda explained, he left Mexico for the United States. He went to Santa Clara, California, where he found employment cleaning yards. On November 18, 1989, Sepulveda left Santa Clara to go to Okanogan, Washington, where he intended to work for a company that currently employed his father. On the way, Sepulveda stopped in the Tri-Cities to visit his cousin Barajas. He arrived at Barajas' South 510 Hawthorne residence at approximately 5:00 p.m. on the evening of November 19.

The next day, Sepulveda stated, Barajas suggested that the pair go to the home of one Benino Gonzales, a friend of both Barajas and Sepulveda from Guadalajara. Accordingly, the pair went to the house on West Fifth street. The two entered through the garage; Sepulveda rested on a sofa while Barajas went off to the bedroom. Barajas returned with a leather jacket, which Sepulveda put on. Sepulveda claims that he was unaware that there was a pistol in the left pocket.

Shortly thereafter, Sepulveda explained, the two left the house and got into the Oldsmobile. Sepulveda got into the driver's seat; Barajas entered the car from the passenger's side. Before the car was put into motion, police officers surrounded the car. As the officers approached, Barajas pulled a bag out of his jacket and put it underneath the passenger's seat. Barajas and Sepulveda were then taken into custody.

On November 21, 1989, a grand jury returned a two-count indictment against Sepulveda, charging him with possession with intent to distribute approximately six ounces of heroin, a violation of 21 U.S.C. §§ 2 and 841(a) (1), and unlawfully using a firearm during a drug trafficking crime, a violation of 18 U.S.C. § 924(c).

Sepulveda moved to suppress the evidence obtained from the search of his jacket which produced the gun. The officers, Sepulveda reasoned, lacked probable cause to arrest him and, accordingly, any search subsequent to the arrest was improper. The district court denied the motion.

Shortly before trial, Sepulveda moved for a grant of use immunity for co-indictee Barajas in order to overcome Barajas' privilege against self-incrimination, thus enabling Barajas to testify at Sepulveda's trial. The motion was denied. The district court reasoned that Sepulveda "only speculated that Mr. Barajas' testimony would be favorable," and that Barajas' attorney had indicated that she suspected that Barajas might perjure himself if he did testify.

Learning that Barajas had obtained a continuance in order to enter into talks with the prosecution, Sepulveda moved for a continuance. This motion was also denied.

Trial by jury commenced on January 10, 1990. On January 12, 1990, the jury returned a verdict finding Sepulveda guilty on both counts. Thereafter, Sepulveda moved for a new trial based upon newly discovered evidence. Sepulveda argued that the breakdown of talks between Barajas and the government, and Barajas' newly revealed willingness to testify on Sepulveda's behalf, constituted newly discovered evidence. The district court denied the motion in a memorandum opinion and order dated March 26, 1990. Sepulveda was sentenced to consecutive prison terms of sixty-three months on the possession of heroin with intent to distribute count and sixty-three months on the firearm count.

II

Sepulveda contends that he was denied his rights to compulsory process and due process, as guaranteed by the sixth and fifth amendments, respectively, when he was unable to use Barajas' nonprivileged testimony. To remedy this purported constitutional violation, Sepulveda asked the district court to order Barajas to testify by invoking the doctrine of judicial use immunity. Under the doctrine, a district court is empowered to grant use immunity to a defense witness when the defendant is unable to present exculpatory evidence because the favorable witness will invoke his or her fifth amendment privilege against self-incrimination rather than testify. See United States v. Lord, 711 F.2d 887, 891 n. 2 (9th Cir. 1983); Government of Virgin Islands v. Smith, 615 F.2d 964, 969-70 (3d Cir. 1980).

The judicial use doctrine, as envisioned by the Third Circuit, is not a right, but a remedy, for a due process or compulsory process violation. See Smith, 615 F.2d at 971. Here, because we cannot say that the unavailability of Barajas to testify deprived Sepulveda of a fair trial, the question of an appropriate remedy is simply irrelevant.

"Few rights are more fundamental than that of an accused to present witnesses in his own defense." Taylor v. Illinois, 484 U.S. 400, 408 (1988). The right of an accused to present favorable testimony is rooted in both the fifth amendment due process clause and the sixth amendment compulsory process clause. See United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982). However, this right is not unbounded. "The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor, 484 U.S. at 410. Such rules may be disregarded only if adherence results in a fundamentally unfair trial. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973); cf. Rock v. Arkansas, 483 U.S. 44, 56 (1987) ("In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant's constitutional right to testify.").

The most definitive statement as to when exclusion of evidence results in an unfair trial is found in Chambers v. Mississippi. There, the defendant had been precluded by Mississippi's hearsay and voucher rules from introducing evidence of another person's repeated confession to the murder at issue. This, the Supreme Court held, was error. "The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and ... was critical to Chambers' defense." Chambers, 410 U.S. at 302. Accordingly, the Court concluded that " [i]n these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id.

Here, the circumstances do not suggest that Sepulveda was "denied ... a trial in accord with traditional and fundamental standards of due process." Id. Sepulveda's guilt was convincingly established at trial. Sepulveda arrived in the Tri-Cities on the day Barajas indicated his heroin supply would arrive and, indeed, following Sepulveda's arrival Barajas was able to deliver the promised heroin to the informant. Moreover, when arrested, Sepulveda had a loaded gun in his jacket pocket. Sepulveda's testimony that he had put on the jacket only moments earlier and was thus unaware of the gun's presence is directly contradicted by the testimony of Officer Simington, who observed Sepulveda wearing the same jacket upon entering and exiting the stash house.

Moreover, Barajas' testimony would have been of little value to Sepulveda due to Barajas' lack of credibility. While credibility determinations are ordinarily left exclusively to the jury, see, e.g., United States v. Foster, 711 F.2d 871, 877 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984), the court--trial or appellate--may make some general observations of trustworthiness when deciding whether a trial ran afoul of the Constitution due to the exclusion of certain evidence. Cf. Chambers, 410 U.S. at 302. Barajas' testimony lacked credibility. During his "free talks" with the government, Barajas claimed that Sepulveda was indeed the supplier of the heroin. Thus, had Barajas testified in support of Sepulveda, his testimony could have been directly impeached on the very issue for which his testimony was sought.

For the foregoing reasons, we conclude that Barajas' unavailability did not deprive Sepulveda of a fair trial.

III

As an alternative to granting use immunity to Barajas, Sepulveda contends that the district court erred in not continuing Sepulveda's trial until after Barajas had pleaded guilty. A district court's denial of a continuance is reviewed for clear error. See United States v. Smith, 790 F.2d 789, 796 (9th Cir. 1986).

A continuance until Barajas' plea would not have aided Sepulveda. Because of the possibility of state criminal liability, Barajas would still have had reason to invoke his privilege against self-incrimination. See United States v. Paris, 827 F.2d 395, 399 n. 2 (9th Cir. 1987). Thus, without a showing that Barajas had unconditionally agreed to testify on Sepulveda's behalf, the trial court did not err in refusing to grant the continuance.

IV

Sepulveda also contends that the district court erred by denying his motion for a new trial based upon newly discovered evidence. A denial of a motion for new trial based upon newly discovered evidence is reviewed for an abuse of discretion. United States v. Lockett, 919 F.2d 585, 591 (9th Cir. 1990).

It is well established in this circuit that the testimony of a co-felon who comes forward to testify only after his or her own conviction is not "newly discovered evidence" within the meaning of Federal Rule of Criminal Procedure 41. See id. Under this rule, Barajas' testimony was clearly not newly discovered. The district court did not abuse its discretion in denying the motion for a new trial.

V

Finally, Sepulveda contends that the police lacked probable cause to arrest him and, thus, the evidence obtained as a result of the search incident to his arrest should have been suppressed. In response, the government posits two justifications for admission of the evidence. First, the government contends that probable cause existed for Sepulveda's arrest. Alternatively, the government argues that even if the officers lacked probable cause prior to the search, they were nonetheless justified in searching Sepulveda to protect their safety. This alternate theory was that adopted by the district court, and we agree.

One of the primary objectives of the warrantless search doctrine is the safety and protection of the police. See United States v. Robinson, 414 U.S. 218, 234 (1973) ("The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial."); Terry v. Ohio, 392 U.S. 1, 29 (1968) ("The sole justification of the search in the present situation is the protection of the police officer and others nearby...."). In United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971), we held that " [a]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory 'pat-down' reasonably necessary to give assurance that they are unarmed." This is particularly true in situations involving the distribution of drugs, as weapons are routinely used in many drug transactions. See United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943 (1988).

Here, there is no dispute that the officers had probable cause to believe that Barajas (at the very least) was engaging in criminal activity. Accordingly, the officers were fully justified in conducting their search of Sepulveda, Barajas' companion. That the officers may have verbally announced an arrest prior to the search is of no relevance. A search otherwise valid is not suddenly rendered unconstitutional because of a purported arrest. See United States v. Liggons, 545 F.2d 1118, 1120 n. 5 (8th Cir. 1976) ("Assuming both arguendo that [the officer] did announce an arrest and that he had no probable cause to do so, this would not invalidate the seizure of the firearm. Objectively, [the officer] had justification for a limited Terry protective search; any error in announcing the reason for the search would not affect its validity."), cert. denied, 430 U.S. 971 (1977); cf. United States v. Harrington, 923 F.2d 1371, 1373 (9th Cir. 1991) ("The use of force during a Terry stop does not convert the stop into an arrest if the force is justified by concern for the safety of the officers or others."). The motion to suppress was properly denied.

AFFIRMED.

TANG, Circuit Judge, concurring:

I concur in the memorandum disposition. However, I wish to note and to emphasize that this circuit, on separation of powers grounds, does not recognize the judicial use immunity doctrine. United States v. Richardson, 588 F.2d 1235, 1241 (9th Cir. 1978), cert. denied, 440 U.S. 947 (1979); United States v. Benveniste, 564 F.2d 335, 339 n. 4 (9th Cir. 1977). Our decision that it is unnecessary to address the issue in this case should not be interpreted as questioning or limiting in any way this circuit's position on judicial use immunity.