Unpublished Disposition, 863 F.2d 887 (9th Cir. 1987)

MEMORANDUM^* 

Abraham and Ernesto Rojas appeal their jury convictions of one count of conspiracy to possess with intent to distribute a narcotic drug controlled substance, in violation of 21 U.S.C. § 846 and four counts of possession with the intent to distribute and distribution of a narcotic drug controlled substance, in violation of 21 U.S.C. § 841(a) (1). Abraham Rojas also appeals his conviction of a sixth count of possession of a narcotic drug controlled substance in violation of 21 U.S.C. § 844(a).

The Rojases contend (1) that the district court erroneously instructed the jury that they refused to give handwriting exemplars; (2) that the warrantless arrest of Ernesto Rojas and search of his car was made without probable cause; (3) that the search warrant for the Stetson residence was not supported by probable cause; (4) that certain items seized from Abraham Rojas' safe deposit box should be suppressed as the fruit of the unlawful search of the Stetson residence; (5) that they are entitled to a new trial because of the deportation of a potential witness; and (6) that the district court abused its discretion in excluding evidence that the Rojases business was legitimate and not a front.

BACKGROUND

Ernesto Ivan Rojas was driving a Ford Bronco, registered in his name, on October 30, 1985 when he was stopped by Detective Guzzetta of the Bell Police Department. Prior to stopping Ernesto, officers saw him leave 5598 Stetson, Anaheim, California, deliver a sports bag to a house on Saratoga in Placentia, California, pick up three large trash bags from another address and deliver two grocery bags back into the Stetson residence. The officers also possessed information resulting from the October 22, 1985 search of a residence on Covered Wagon Road in Anaheim, which resulted in the recovery of sixteen kilos of cocaine, and yielded records of calls from the Rojas residence to one of the beepers at Covered Wagon and notebooks containing receipts to "Toya" from "AER", "Ernesto", and "Ernesto Rojas S." for money paid to the "edificios". In addition, the officers had information from Sergeant Smith of the Culver City Police Department, indicating that a March 1985 search of the Lakewood, California residence of Liliana Gorosito and Maria Restrepo produced a phone book with name "Ernesto" and the Stetson phone number, phone bills listing calls to Stetson, and a typed receipt from "aerojas," bearing the notation "132," for money received on behalf of the "edificios" from "Toya". "Toya" was subsequently identified at trial as a name used by Maria Restrepo.

After the Bronco was stopped, Ernesto Rojas was ordered out at gunpoint. As identification was being produced, Detective Guzzetta saw that he was carrying a large amount of cash. The car door was open, and Detective Guzzetta saw a receipt on the floorboard which he believed to be the record of a drug transaction. At approximately the same time, Ernesto Rojas was placed under arrest. Detective Guzzetta retrieved $10,000 from Ernesto and a notebook from his car, which was later identified as a drug ledger by a narcotics expert.

That same day, Detective Guzzetta obtained a search warrant for the Rojas' residence on Stetson. Probable cause to search the residence was based primarily on links between the Stetson address and Maria Restrepo, who had been arrested five days earlier after sixteen kilos were recovered from the Covered Wagon search, and who had sold a kilo of cocaine seven months earlier and then had gone to several locations, including the Stetson residence. Guzzetta's affidavit also described the results of his surveillance on October 30, including the arrival and departure of a "latin female" with a large handbag; the movements of Ernesto Rojas later that day; and his subsequent stop and detention of Ernesto Rojas, including the discovery of $10,000 in cash and the "pay and owe" sheet. The search of the Stetson residence yielded 1.92 grams of cocaine, a cocaine cookbook, a drug catalogue, volumes of drug law reports (including a copy of the Federal Rules of Criminal Procedure), a notebook later identified as a drug ledger found in a locked briefcase, and $1,300 in cash.

On March 19, 1986, a federal grand jury returned a six-count indictment charging the Rojases, Maria Restrepo, Liliana Gorosito, Wilfredo Martinez and Juan Jose Restrepo with narcotics offenses. On July 9, 1986, the district court denied the Rojases motion to suppress evidence from the stop of Ernesto Rojas and the search of the Stetson residence. On November 3, 1986, defendants Maria Restrepo and Gorosito pleaded guilty. On November 4, 1986, defendants Juan Restrepo and Martinez pleaded guilty. A jury was empaneled on November 4, 1986 and testimony began on November 7. On November 20, 1986, a jury found the Rojases guilty as charged. On March 9, 1987, the district court sentenced Abraham Rojas to a cumulative term of twelve years with a fine of $50,000 and Ernesto Rojas to a ten year term with a fine a $50,000. The defendants timely appeal.

DISCUSSION

The history of the Rojases' "refusals" and/or "offers to comply" with various court orders to furnish handwriting exemplars is somewhat disputed. In brief, the record indicates that on February 4, 1986 District Judge Consuelo Marshall held defendants in civil contempt for failing to comply with a court order issued by District Judge Robert Takasugi requiring the Rojases to comply with a grand jury subpoena for handwriting exemplars. The Rojases appealed the contempt order on the grounds that the request was connected to illegal electronic surveillance. The Ninth Circuit remanded to the district court "to enable the court to require the government to unequivocally affirm or deny the use of electronic surveillance."

On November 3, 1986, Judge Marshall accepted the government's denial and again ordered the defendants to provide the government with handwriting and fingerprint samples. The Rojases' request for a stay of the order, which issued one day prior to the commencement of their trial before Judge Rymer, was denied.

On November 14, 1986 the government filed an application for an order to transport the Rojases to the United States Marshal's lock-up and to make them available to the government's handwriting expert for the purpose of providing exemplars. On November 18, 1986, the parties reappeared for trial and the prosecution's demand for an exemplar was discussed. Counsel for the Rojases indicated his clients were prepared to give the exemplars, but that they would object to their admission at trial because of the government's delay in making its request. The trial judge gave the defendants the options of either (1) giving the exemplars for use by the government expert at trial, or (2) having the court instruct the jury about their refusal. Finding the Rojases in contempt of the order, the district court instructed the jury that:

[T]here is evidence that the defendants refused to obey a court order that they furnish a specimen of their handwriting for identification purposes.

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You may consider the defendant's refusal [ ] and may give it such weight as you think it is entitled to as tending to prove consciousness of guilt.

The Rojases contend the district court's ultimate position inadequately distinguished between their readiness to comply with the order to produce exemplars and the admissibility of the exemplars at trial. They assert that the court's ruling side-stepped various evidentiary issues raised by the delayed request, including alleged violations of Fed. R. Crim. P. 16 and the due process clause, and severely prejudiced the defense, particularly in light of defense counsel's cross-examination of the government's handwriting experts which emphasized the expert's "failure" to obtain request examplars.

This argument is meritless. Pursuant to Judge Marshall's order of November 3, 1986 and the government's specific request on November 14, the Rojas were under a court-ordered obligation to provide the exemplars and yet did not. Their objections to the actual admissibility are both speculative and premature because although the exemplars were "offered" they were never actually given; thus, their questions as to the admissibility were never squarely presented to the district court for consideration. After "offering to give," but ultimately declining to comply with the court order for exemplars, the Rojases cannot parlay their omission into a basis for a new trial. Accordingly, the district court's instruction that the defendants "refused" to obey a court order is supported by the evidence and the court's formulation of the instruction shows no abuse.

The district court concluded that although Ernesto Rojas had standing to challenge his stop, Abraham Rojas did not. The court found that under United States v. Medina-Verdugo, 637 F.2d 649 (9th Cir. 1980), Abraham's claim of ownership interests in the Bronco and the $10,000 cash did not establish a legitimate expectation of privacy in the stop, arrest, or subsequent seizure because: title to the car was not in his name, he was not a passenger in the car, and "no reasonable precautions were taken to preserve a privacy interest in the car or the money." The district court's determination of standing is reviewed de novo. United States v. Kovac, 795 F.2d 1509, 1510 (9th Cir. 1986), cert. denied, 107 S. Ct. 951 (1987).

Abraham makes several unpersuasive arguments to support his claim to standing including the contention that he and Ernesto shared a "formalized arrangement" as coconspirators for the transportation of contraband (citing United States v. Johns, 707 F.2d 1093, 1099 (9th Cir. 1983), rev'd on other grounds 469 U.S. 478 (1985)). Abraham and Ernesto's relationship as father and son does not even remotely approach the formalized bailor/bailee arrangement described in Johns, let alone any of the remaining criteria described in Medina-Verdugo for showing a "reasonable expectation of privacy." Cf. United States v. DeLeon, 641 F.2d 330, 337 (5th Cir. 1981) (no expectation of privacy in articles committed to the custody of coconspirators). Accordingly, the district court did not err in concluding that Abraham Rojas lacked standing to challenge the arrest of Ernesto.

The district court concluded that Detective Guzzetta's detention of Ernesto Rojas constituted an "investigative stop" and was supported by "reasonable suspicion that criminal activity was afoot." (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Ernesto argues first, that the "stop" was in fact an arrest unsupported by probable cause, and second, that even if the detention was a Terry stop, an articulable basis for suspecting criminal activity was lacking.

The question whether police conduct in this case constituted an "arrest" as opposed to an "investigatory stop" is a reasonably close one. The difficulty stems in part from the officer's armed approach of the Rojas vehicle, which arguably suggests something more than a "brief stop of a suspicious individual in order to determine ... identity," as described in Adams v. Williams, 407 U.S. 143, 146 (1972). In United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974), police conduct which included an armed approach of a vehicle, was held to constitute an "arrest" and not a mere investigatory detention. However, this court has also held that an officer's use of a drawn gun in effecting a Terry stop does not necessarily turn the stop into an arrest. United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir. 1983).

Here, the use of force in making the stop did not convert the stop into an arrest because it occurred "under circumstances justifying fears for personal safety." Jacobs, 715 F.2d at 1346 (quoting United States v. Beck, 598 F.2d 497, 501 (9th Cir. 1979)). The search of the Covered Wagon Road location yielded assault rifles, pistols and ammunition; given the link between Maria Restrepo, who was arrested at Covered Wagon Road and the Rojases, safety concerns under the circumstances were justified. The courts have recognized that narcotics traffickers are likely to be armed and dangerous. See, e.g., United States v. Maybusher, 735 F.2d 366, 372 (9th Cir. 1984), cert. denied, 469 U.S. 1110 (1985).

Having properly stopped and detained Ernesto Rojas, the police made a sufficient showing that they had a reasonable and articulable basis for suspecting criminal activity. This included the actions of Ernesto Rojas in picking up and delivering bags to various locations on the day in question, activities consistent with the movement of narcotics and money; and the link between Maria Restrepo and the Stetson residence where Ernesto lived. This basis is sufficient to support an investigative stop, and might amount to a showing of probable cause to justify an arrest, but we need not reach that issue.

Once Detective Guzzetta stopped Ernesto Rojas, he almost immediately observed the large sum of cash and the receipt, in plain view, on the floorboard of the car. These additional facts gave the officer probable cause to arrest. See United States v. Greene, 783 F.2d 1364, 1368 (9th Cir. 1986); United States v. Fixen, 780 F.2d 1434, 1436 (9th Cir. 1986).

The Rojases also assert the affidavit in support of the search warrant for the Stetson residence failed to establish probable cause. A magistrate's determination of probable cause may not be reversed unless it is clearly erroneous. United States v. Dozier, 844 F.2d 701, 706 (9th Cir. 1988); United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986).

The affidavit at issue was prepared by Detective Jerry Guzzetta of the Bell Police Department. The warrant itself issued on October 30, 1985. Guzzetta incorporated by reference the affidavit of Detective Sergeant Ellis Smith of the Culver City Police Department, which described the results of his March 1985 surveillance of Maria Victoria Restrepo and searches pursuant to that investigation. The district court correctly determined that " [v]iewed in its totality, the evidence establishes that the judge had a substantial basis for a finding of probable cause in issuing the search warrant [ ]."

The affidavit set forth the following facts: (1) on October 22, 1985 and pursuant to a search warrant, sixteen kilos of cocaine were discovered at the Covered Wagon Road residence and Maria Restrepo was arrested leaving that address; (2) on October 30, 1985, surveillance agents saw a latin female arrive at Stetson in a red BMW without license plates, stay for about an hour, and leave carrying a large handbag not previously in her possession; (3) Ernesto Rojas was observed later that day delivering a sports bag to the Saratoga residence, picking up three bulky trash bags from another address, delivering two grocery bags to Stetson, and loading a trash bag into his car; (4) Ernesto Rojas was stopped and detained as he left Stetson, carrying $10,000 cash and with a receipt of what, in the officer's experience, appeared to be a record of a narcotics sale found on the floorboard of the car; (5) the report of a concerned citizen who observed "people of all races" coming to Stetson carrying briefcases and leaving with trash bags; and (6) the information derived from Sargeant Smith's investigation which indicated that Smith saw Maria Restrepo sell a kilo of cocaine to an informant in March 1985 and that the Sergeant's search of Restrepo's primary residence discovered a receipt signed by "aerojas" stating that "132" had been received from "Toya."

Based on this showing, the state magistrate had a substantial basis for concluding that contraband or evidence of a crime might be found at Stetson, and thus, that probable cause to search existed. See New York v. P.J. Video, Inc., 470 U.S. 868, 847-76 (1986); Illinois v. Gates, 462 U.S. 213, 238-39 (1983). The recent arrest of Maria Restrepo coupled with her long-standing links to the Stetson residence, the evidence of criminal activity uncovered during the stop of Ernesto Rojas, and the circumstantial evidence derived from the surveillance on October 30th, viewed as a whole and in totality, substantially support the finding of probable cause.

No error occurred through the affidavit's reliance on the March 1985 information from Sergeant Smith. First, given the nature of the criminal activity--an ongoing narcotics conspiracy as opposed to a completed crime--seven months is not, by itself, sufficient to render the information stale. See United States v. Foster, 711 F.2d 871, 878 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984). Second, as the trial court reasoned, "the lapse in time related only to the association; Restrepo had been linked to criminal activity within the past week."

Abraham Rojas's challenge to the search of his safe deposit box turns on the legality of the Stetson search. As the Stetson search was legal, the evidence obtained pursuant to the search was properly used to establish probable cause for the search of the safe deposit boxes.

The Rojases also contend that they are entitled to a new trial because of the deportation of a potential witness, Jorge Valdez. Valdez was the passenger in Ernesto Rojas' car on the day of his arrest and, according to the offer of proof, would have testified that the bags which he and Ernesto transported on October 30, 1985 did not contain contraband.

The district court deferred ruling on the defendants' motion to dismiss the indictment until hearing the evidence at trial. After hearing the evidence, the judge denied the motion.

To establish a violation of the compulsory process clause of the sixth amendment or the due process clause of the fifth amendment, a criminal defendant must make "a plausible showing that the testimony of the deported witness would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); see also, United States v. Cervantes-Gaitan, 792 F.2d 770, 773 (9th Cir. 1986).

The Valdez testimony would only have had some arguably "material" and "favorable" connection to the defense of Ernesto Rojas; therefore, Abraham Rojas has no basis for requesting a new trial on this ground. Further, we evaluate the omission "in the context of the entire record." Valenzuela-Bernal, 458 U.S. at 874 n. 10 (quoting United States v. Agurs, 427 U.S. 97, 112-113 (1976)).

If there is no reasonable doubt about guilt whether or not additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. Id.

Here, given the legality of the stop and arrest of Ernesto, as well as the search of Stetson, there is ample evidence from which the jury could have found the essential elements of the crimes charged beyond a reasonable doubt. Thus, the district court did not err in denying the motion to dismiss and there is no justification for a new trial.

At trial the Rojases sought to introduce hearsay statements under Rule 803(24) of the Federal Rules of Evidence from persons in South America to establish that their business, Luier, Inc., was a legitimate company. The district court excluded the unsworn statements on the grounds that they lacked any guarantee of trustworthiness as required by the rule. Given that the affidavits were created specifically for the defendants' case, by individuals who arguably had an interest in the outcome of the case, there was no abuse of discretion in their exclusion. See, e.g., Gulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1985).

CONCLUSION

The record supports the conclusion that the Rojases in fact "refused" to provide the exemplars, notwithstanding their "offers to comply," hence there was no error in the district court's instructions.

The stop of Ernesto Rojas was supported by reasonable suspicion and his arrest, following the discovery of the cash and receipt, was supported by probable cause. There was no error in the state court's finding of probable cause to issue the warrant to search the Stetson residence. The Stetson search was legal, therefore, probable cause supported the seizure of evidence from Abraham Rojas' safe deposit box.

Viewing the evidence as a whole, the district court did not err in denying the motion to dismiss the indictment because of the deportation of a potential witness. Finally, there was no abuse of discretion in the exclusion of evidence as to legitimacy of the Rojases' business because of untrustworthiness.

AFFIRMED.