Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

MEMORANDUM^* 

Jesus Bandin and Rafael Ortiz appeal their convictions following a joint trial before a jury on one count of possession with intent to distribute approximately two kilograms of cocaine in violation of 21 U.S.C. § 841(a) (1). The appellants raise numerous issues, including claims involving their Brady motions and the fifth and sixth amendments. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Alleged Brady violations.

The appellants argue that the government violated its obligation under Brady v. Maryland, 373 U.S. 83, 87 (1963), which requires the government, upon a defendant's motion, to reveal "evidence [that] is material either to guilt or punishment." A due process violation requiring reversal occurs "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).

To the extent that this claim is based upon the government's failure to disclose the informant's whereabouts or the full extent of government payments to him, we find that the claim fails meet Brady's materiality requirement. Once the government became aware of his whereabouts, it informed the appellants and made the informant available in the event that the appellants wanted to call him as a witness. And the fact that they chose not to call him makes the potential impeachment evidence concerning government payments immaterial as well.

The appellants also argue that their Brady rights were violated when the judge refused their request to conduct an in camera review of the informant's DEA file. Defense counsel contended that the file might contain facts relating to the disposition of the charges listed on the informant's rap sheet. As the trial judge indicated, however, any inference that those charges had been dropped in exchange for cooperation with the DEA was pure speculation. This failure to lay a foundation for the request distinguishes this case from those in which we have held that the district judge should have reviewed the materials in camera. See United States v. Dupuy, 760 F.2d 1492 (9th Cir. 1985); United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989). Because there was no foundation for the appellants' request, it was not error to deny it. There was no Brady violation in this case.

1. Confrontation Clause claim.

Ortiz argues that his sixth amendment right to confront the witnesses against him was violated when Agent Salazar testified as to several comments allegedly made by Bandin to the Agent concerning Ortiz. There was no violation of the rule established in Bruton v. United States, 391 U.S. 123 (1968), however, because Bandin's statements were made during the course of the crime and not, as in Bruton, in the context of a post-arrest confession. See Kay v. United States, 421 F.2d 1007, 1010 (9th Cir. 1970). There was no sixth amendment violation.

2. Admission of testimony regarding risks to informant.

Ortiz argues that the district court abused its discretion by denying his motion for a mistrial based on Agent Salazar's testimony on cross-examination concerning the risks that informants face. Because the testimony in no way intimated that Ortiz had engaged in the sort of activity about which the Agent testified, we find that the court properly denied the motion for a mistrial.

3. Prosecutor's closing argument.

Ortiz next argues that the prosecutor's closing argument made improper reference to the appellants' failure to testify. Because the appellant did not object at trial, we review the challenged passages for plain error. United States v. Birges, 723 F.2d 666, 672 (9th Cir.) cert. denied, 466 U.S. 943 (1984). Plain error will only be found where necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). Having read the relevant portions of the prosecutor's closing argument, we conclude that they do not constitute plain error.

4. Denial of motion to enforce plea agreement.

Ortiz' final argument concerns the judge's refusal to enforce the terms of a plea agreement with the government. After considerable negotiation, the government and Ortiz reached tentative agreement on a plea bargain whereby Ortiz agreed to testify against Bandin in exchange for a maximum sentence of two-and-a-half years in prison. Before a written agreement was executed and presented to the court, the government learned that the appellant had a prior drug conviction, and advised Ortiz that it would not proceed with the agreement. After hearing argument, Judge Rosenblatt denied Ortiz' motion to enforce the agreement.

Ortiz argues that, as a matter of contract law, a plea agreement is an executory contract that is enforceable once a party has relied on it to his detriment. Ortiz contends that "the very act of promising to testify against a codefendant constitutes detrimental reliance." We review such mixed questions of law and fact de novo. United States v. McConney, 728 F.2d 1195, 1202-03 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). We conclude that the mere promise to testify against a codefendant made during the course of plea negotiations and before the tentative agreement has been presented to the court is insufficient to make the agreement binding. The district court did not err in refusing to enforce the tentative plea agreement.

1. Denial of request to give entrapment instruction.

Bandin argues that the judge erred in refusing to give the requested instruction on entrapment. The district judge declined to do so based on his finding that:

There is no evidence that would suggest that there was no previous intention to violate the law, or that he was indeed persuaded to commit a crime.... If it were simply a matter of argument, then entrapment would be a theory of the case in any crime, and would place then the additional burden on the government to prove that the defendant was not entrapped, and that's not the law.

RT II at 66. There is a split of authority in this Circuit over the proper standard for reviewing the district court's determination that the evidence does not support a defendant's requested instruction. United States v. Sotelo-Murillo, 887 F.2d 176, 179-80 (9th Cir. 1989) (discussing split between cases calling for de novo review and those applying abuse of discretion standard). As in Sotelo-Murillo, however, we need not decide this question; the judge's refusal to give the entrapment instruction was proper under either standard.

While it is true that the defendant does not need to testify or even to produce witnesses to be entitled to an entrapment instruction, United States v. Barry, 814 F.2d 1400, 1402 (9th Cir. 1987), there must be some evidence that the government induced the defendant to commit the crime and that he was not predisposed to do so. Sotelo-Murillo, 887 F.2d at 179. Because the appellant did not call the informant as a witness, there was no evidence presented at trial to suggest that Bandin was induced to commit the crime. Furthermore, Agent Salazar's testimony shows clear predisposition on Bandin's part to participate in the drug scheme. Under either the de novo or the abuse of discretion standard, the judge's ruling was not error.

Because we find the appellants' assigned errors to be without merit, the convictions are AFFIRMED.