Unpublished Disposition, 842 F.2d 335 (9th Cir. 1986)

MEMORANDUM^**

Gregory Jarrett appeals his conviction for possession of cocaine in violation of 21 U.S.C. § 844. He contends that the district court abused its discretion in denying his Fed. R. Crim. P. 33 motion for a new trial. We affirm.

In the course of investigating Jarrett the government agreed to dismiss all charges against Wade Hausmann, a long-time acquaintance of Jarrett's, if he materially assisted in locating and arresting Jarrett. Hausmann agreed to assist in the investigation and provide any information he might have concerning Jarrett's violation of federal criminal laws. This agreement was memorialized in a letter to Hausmann's attorney dated May 16, 1984.

Hausmann subsequently appeared before a grand jury which returned an eight-count indictment charging Jarrett with engaging in a continuing criminal enterprise. When the government was unable to locate Jarrett, Hausmann agreed to arrange a meeting at which Jarrett would be arrested. At the time of arrest, Drug Enforcement Administration (DEA) agents found a vial of cocaine in Jarrett's truck; he was charged with possession of a controlled substance in violation of 21 U.S.C. § 844. That charge was tried separately from those in the original eight-count indictment and is the subject of this appeal.

Prior to trial Jarrett sought discovery of and interviews with government informants, including Hausmann. He also filed a motion for an order to compel the government to locate Hausmann for subpoena, since the government did not intend to call him as a witness. After a hearing the district court found that: (1) Hausmann was neither an informant nor a participant in the charged crime, (2) the government had no more information than did Jarrett about Hausmann's whereabouts, and (3) Jarrett had not made a reasonable effort to locate Hausmann. Jarrett's discovery motion was granted, but the government was not ordered to locate or produce Hausmann. The jury returned a guilty verdict, final judgment against Jarrett was entered on May 21, 1985, and the judgment was affirmed on appeal. On November 14, 1986, Jarrett moved for a new trial on the grounds that newly discovered evidence showed that the government had control over Hausmann during Jarrett's prosecution. Jarrett argued that, because the government had such control, it was required to produce Hausmann. He further argued that cross-examination of Hausmann would have shown that there was no probable cause for the search and that the cocaine actually belonged to Hausmann. Since there was no evidence that Hausmann had been missing, the court reasoned that the government's only duties were to refrain from concealing Hausmann and to provide whatever information it had about his location. It found that this duty had been met. Alternatively, the district court found that Jarrett was required to show that Hausmann's testimony would have been favorable, and he had failed to do so.¹  The motion for a new trial was denied, and Jarrett now appeals from the denial.

We review a decision to grant or deny a new trial for abuse of discretion. United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985). The appellant carries a significant burden to show that the district court abused its discretion. Id.

Jarrett filed his motion for a new trial 18 months after entry of final judgment against him, so the district court had jurisdiction to consider the motion only to the extent that it was based on newly discovered evidence. Fed. R. Crim. P. 33; United States v. Hazeem, 679 F.2d 770, 774 (9th Cir.), cert. denied, 459 U.S. 848 (1982). The newly discovered evidence on which Jarrett purports to rely consists of: (1) a copy of the letter to Hausmann's attorney setting forth the terms of Hausmann's agreement with the government, including the provision that Hausmann would testify at trial if called upon to do so; (2) a transcript of Hausmann's testimony before the grand jury in which he stated the name of his employer and the city in which he worked, as well as his home address and telephone number; and (3) Jarrett's discovery in February, 1985, that a DEA agent had Hausmann's telephone number at that time.

Jarrett's motion papers reveal that he knew, prior to trial, that Hausmann was cooperating with the government in exchange for leniency.²  Nonetheless, he did not specifically request information about the terms of the agreement in his Brady materials motion and did not receive a copy of the letter to Hausmann's lawyer until proceedings on his motion for a new trial began. Prior to trial Jarrett also knew Hausmann's address, as well as the name and telephone number of his attorney in Dallas whom the government agents contacted when they wished to communicate with Hausmann. Jarrett acknowledged that the government had provided this information.³ 

Jarrett makes three different arguments on appeal. First, he argues that the government willfully suppressed discoverable material in violation of Brady v. Maryland. 373 U.S. 83 (1963). Under Brady, a prosecutor is required to disclose evidence in his possession that is both favorable to the accused and material to guilt or punishment. However, a defendant cannot claim a Brady violation if he was "aware of the essential facts enabling him to take advantage of any exculpatory evidence." United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986), quoting United States v. Brown, 582 F.2d 197, 200 (2d Cir.), cert. denied, 439 U.S. 915 (1978). See also United States v. Dupuy, 760 F.2d 1492, 1501 n. 5 (9th Cir. 1985) ("Since suppression by the Government is a necessary element of a Brady claim, if the means of obtaining the exculpatory evidence has been provided to the defense, the Brady claim fails." (citations omitted)) .

Even assuming, as Jarrett asserts, that the government had information about Hausmann's location which it did not disclose and that cross examination of Hausmann would have undermined the government's case, Jarrett's due process rights were not violated. He knew that Hausmann was cooperating with the government in exchange for dismissal of charges against him, and he had Hausmann's address, as well as the address and telephone number of Hausmann's attorney. With reasonable effort on his own part Jarrett could have subpoenaed Hausmann to appear at the trial and thereby obtained whatever exculpatory evidence might have been afforded by his testimony.

Next Jarrett asserts that the government failed in its duty to use "reasonable efforts to produce a government informant whose presence has been properly requested by the defendant." United States v. Tornabene, 687 F.2d 312, 315 (9th Cir. 1982). In making this assertion Jarrett characterizes Hausmann as a "percipient confidential informant." Even if this were true, contrary to the district court's finding, the government had no duty to do more than it did. The cases on which Jarrett relies involved informants whose identity the government refused to disclose or who were otherwise unavailable to the defendant. Tornabene, 687 F.2d at 314 ("Because the government agreed to produce the informant himself, the government was not required to produce the informant's name and address"); United States v. Hart, 546 F.2d 798 (9th Cir. 1976), cert. denied, 429 U.S. 1120 (1977) (informants were Mexican nationals who had returned to Mexico and could not be served with a subpoena); United States v. Leon, 487 F.2d 389 (9th Cir. 1973), cert. denied, 417 U.S. 933 (1974) (the government refused to disclose the identity of informers on the grounds that, although they had witnessed the transaction, none had participated in it). Here, Jarrett knew Hausmann's identity and had his address. He also had the name, address and telephone number of the attorney who represented Hausmann in this matter, and he had contacted the attorney prior to trial. Hausmann's affidavit stated that he had kept the same address and telephone number and retained the same attorney throughout Jarrett's prosecution. The affidavit also stated that Hausmann had made no attempt to avoid being served with a subpoena and that he would have testified at Jarrett's trial had he been contacted to do so by either the government or the defense. Jarrett provided no contrary evidence. Because Hausmann would have been available to testify had Jarrett exercised due diligence, the government was not required under the "reasonable efforts" standard to do more than provide whatever information it had about Hausmann's location. That it did.

Finally, Jarrett argues that the government violated his Fifth and Sixth Amendment rights by intentionally deceiving him about its knowledge of Hausmann's whereabouts and by interfering with his attempts to locate Hausmann. He contends that the alleged deception was a per se deprivation of due process which mandates reversal regardless of whether he was prejudiced by it. This claim is unsupported by the record. Jarrett never produced any evidence that the government had information about Hausmann's location which it failed to reveal. At the hearing on the motion for a new trial the district court posed this question directly, and Jarrett's counsel responded that he had no such evidence. The response made clear that Jarrett's argument was based on the government's alleged control over Hausmann by virtue of his agreement to testify, and that it was premised on the government's alleged duty to produce Hausmann as an informant. Since the government had no such duty, Jarrett's argument fails.

The district court did not abuse its discretion in denying Jarrett's motion for a new trial. The judgment is AFFIRMED.