Unpublished Disposition, 872 F.2d 431 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 431 (9th Cir. 1987)

No. 88-3161.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and ALARCON, Circuit Judges, and WILLIAM H. ORRICK, Jr.,*  District Court Judge.

MEMORANDUM** 

Defendant-appellant Tito Gustavo Marquez appeals from the judgment entered following his conviction for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, distribution of more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a) (1) and Sec. 841(b) (1) (B), and for carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c) (1). Marquez seeks reversal on the following grounds:

(1) He was denied due process and equal protection because the prosecution refused to offer him a plea-bargain containing terms comparable to those accepted by Cortez.

(2) The government denied him a fair trial by failing to disclose the names of potentially exculpatory witnesses.

(3) The district court committed prejudicial error by declining his offer of a tape recording containing statements inconsistent with Cortez's testimony at trial.

(4) The district court erred in denying his request that the jury be instructed that the government was required to prove that he intentionally carried a firearm at the time of the delivery of the cocaine to Agent Daly.

We discuss each contention and the facts pertinent thereto under separate headings. Because we have concluded that no prejudicial error has been demonstrated, we affirm.

Marquez contends that he was denied due process and equal protection because he was not offered a plea-bargain agreement similar to the one negotiated with Cortez. Marquez argues that his involvement in the distribution of cocaine was less significant than the role played by Cortez. A defendant has no constitutional right to plea bargain. Weatherford v. Bursey, 429 U.S. 545, 561 (1977); United States v. Moody, 778 F.2d 1380, 1385 (9th Cir. 1985), amended on other grounds United States v. Moody, 791 F.2d 707 (9th Cir. 1986). The government is not obligated to negotiate with a defendant to induce him to plead guilty, or to accept his offer to do so. United States v. Herrera, 640 F.2d 958, 962 (9th Cir. 1981).

Marquez relies upon United States v. Bell, 506 F.2d 207 (D.C. Cir. 1974), for the proposition that the ABA guidelines mandate that similarly situated defendants should be offered similar plea-bargain conditions. Id. at 221. Marquez's reliance upon Bell is mistaken. The court in Bell held that mere similarity of charges does not impose a duty to offer similar plea bargain arrangements. "What must be shown is 'a difference either based on a constitutionally suspect standard or lacking in rational justification.' " Id. at 221-22 (quoting Washington v. United States, 401 F.2d 915, 923 (D.C. Cir. 1968)).

Each of the authorities relied upon by Marquez discusses the effect of invidious selective prosecution on the validity of disparate plea-bargain offers. In order to establish impermissibly selective prosecution, a defendant "must demonstrate (1) that others similarly situated have not been prosecuted, and (2) that he was selected for prosecution on the basis of an impermissible ground such as race, religion or exercise of the constitutional rights." United States v. McWilliams, 730 F.2d 1218, 1221 (9th Cir. 1984) (per curiam) (citations omitted).

Marquez has failed to offer evidence that the denial of a plea-bargain arrangement similar to that offered to Cortez was based upon his race, his religion, or the exercise of a constitutional right. Moreover, the evidence, when viewed in the light most favorable to the government, demonstrated that Cortez was less culpable than Marquez. Thus, the government's refusal to offer Marquez the same promises presented to Cortez was premised upon a rational calculation.

Cortez initially offered to make a delivery of cocaine to Agent Daly on November 4, 1987, but failed to appear at the time and place agreed upon. Cortez explained that "his people" had gotten lost. The meeting was rescheduled. At the rescheduled meeting, Cortez stated that the individuals he described as his "suppliers" had failed to obtain any cocaine. After failing to appear at two subsequent meetings, Cortez finally admitted that he "really wasn't the main man," and "that other people had actual control of the cocaine."

The record shows that the government decided to offer Cortez a plea-bargain based upon its assessment of his role in the cocaine distribution scheme. Therefore, Marquez was not denied his right to due process or equal protection when the government declined to negotiate with him.

Marquez contends that the failure of the government to disclose the names and identities of the persons present with Cortez on November 4, 1987 denied him a fair trial. Marquez claims the district court erred in denying his motion for a mistrial based upon the prosecution's failure to disclose exculpatory evidence.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that: " [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. Since Brady, the Supreme Court has extended this standard to impose upon the prosecutor an obligation to volunteer, without an explicit request, exculpatory and material evidence to the defense. United States v. Agurs, 427 U.S. 97, 112 (1976).

The Supreme Court has established the following test for proof of materiality: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1984); United States v. Andersson, 813 F.2d 1450, 1458-59 (9th Cir. 1987) (citations omitted). Evidence that impeaches the credibility of a government witness has been held material under Brady. Bagley, 473 U.S. at 676; United States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986) (citations omitted).

Marquez has made no showing regarding exculpatory facts that could have been presented to the jury by these undisclosed persons. Instead, he argues that these persons "would have supported defendant Marquez's theory of the case." Before the trial court, counsel for Marquez suggested that the testimony of these witnesses might be "potentially exculpatory."

Marquez's argument that the government violated its duty to disclose is unpersuasive. First, the meeting at which the previously undisclosed persons were present occurred on November 4, 1987. Marquez was charged with distributing and conspiring to distribute cocaine on or about November 17th or 18th. Furthermore, the fact that Cortez identified other persons as unsuccessful suppliers at a failed transaction on November 4, 1987 does not tend to prove that these persons were involved in the drug delivery made by Marquez on November 18, 1987. The possibility that Cortez may have had other suppliers in no way disproves the government's theory that Marquez actually supplied the cocaine delivered on November 18, 1987. The evidence is undisputed that Cortez's initial attempts to secure cocaine from other suppliers failed. While it is possible that the other persons present on November 4, 1987 could have testified that Cortez knew several individuals who could supply drugs, this testimony is not relevant to the question whether Marquez supplied the drugs delivered on November 18th.

Marquez's reliance upon United States v. Navarro, 737 F.2d 625 (7th Cir. 1984), cert. denied, 469 U.S. 1020 (1984), is misplaced. Marquez cites Navarro for the proposition that failure to disclose exculpatory material deprives a defendant of a fair trial. Navarro also holds, however, that under Brady, mere speculation as to the exculpatory nature of material is insufficient to impose a duty upon the prosecution. Id. at 631. "A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court." Id. Marquez has offered no proof that the persons present with Cortez at the November 4, 1987 meeting with Agent Daly would have been exculpatory witnesses. In light of the absence of any showing that the persons present at the unproductive meeting on November 4, 1987 would be able to present exculpatory testimony, it cannot be said with reasonable probability that the disclosure of the unidentified witnesses would have altered the outcome of the trial.

3. ADMISSIBILITY OF THE PRIOR INCONSISTENT STATEMENT

During cross-examination of Cortez, Marquez's attorney sought to introduce a tape-recorded conversation in which Cortez represented that he could obtain heroin and cocaine. Marquez contended that the recorded statement was admissible as an admission of a party pursuant to Fed.R.Evid. 801(d) (2). Counsel also argued that the tape-recorded conversation was admissible in order to impeach the testimony of Cortez.

The statement was not admissible under subsection (A) of Rule 801(d) (2). Cortez was not a party at the time of the trial of this matter. Marquez attempted to introduce the recording to establish that Cortez's testimony was inconsistent with his prior statements. The tape-recorded statements were not offered against a party, but rather, against a witness.

Hearsay statements which are not admissible for the truth of the matter asserted "may be admissible to impeach a declarant who subsequently testifies at trial." United States v. Crouch, 731 F.2d 621, 623 (9th Cir. 1984) (emphasis added), cert. denied, 469 U.S. 1105 (1985). Some of the statements reflected in the tape recording appear to be inconsistent with Cortez's trial testimony. Because Marquez also attempted to admit the tape recording to impeach the testimony of Cortez, the district court erred in excluding the tape recording.

This ruling, however, was harmless error. "An error in the admission of evidence requires reversal only if the error affected a party's substantial rights." United States v. Silverman, 861 F.2d 571, 580 (9th Cir. 1988) (citing 28 U.S.C. § 2111 (1982)). We are persuaded that the district court's error in suppressing the use of the recording to impeach Cortez's testimony did not affect the result of the trial.

Agent Daly testified that Cortez initially "made himself out to be the number one supplier of cocaine." Furthermore, Cortez admitted under cross-examination that he had spoken with an informant about obtaining cocaine and heroin for Agent Daly. The district court's failure to admit the recording constituted harmless error.

Marquez contends that the trial court erroneously instructed the jury concerning the requisite mental state to sustain a conviction under 18 U.S.C. § 924(c) (1). Marquez argues that the district court erred in reading Jury Instruction No. 17 to the jury. He asserts that Jury Instruction No. 17 is defective because it fails to advise the jury that the government must prove that the defendant acted intentionally. Jury Instruction No. 17 provides as follows:

To convict a defendant of the offense of carrying a firearm during a drug trafficking crime each of the following elements must be proved beyond a reasonable doubt:

FIRST: That on or about November 18, 1987 the defendant used or carried, or aided, abetted, or caused the use or carrying of, a firearm, that is, a .25 caliber pistol;

SECOND: That the defendant did so knowingly;

THIRD: That the use or carrying of the firearm was during and in relation to a drug trafficking crime for which the defendant may be prosecuted in a court of the United States, that is, the distribution of cocaine, as charged in Counts II and III of the Indictment herein.

The court also instructed the jury that "an act is done knowingly if the defendant realized what he was doing and did not act through ignorance, mistake, or accident."

Marquez relies upon United States v. Barber, 594 F.2d 1242 (9th Cir. 1979), cert. denied, 444 U.S. 835 (1979), in support of his argument that, under 18 U.S.C. § 924(c) (1), the government must prove that the defendant acted intentionally. In Barber, the appellant challenged his conviction under 18 U.S.C. § 924(c) (2), the predecessor statute to 18 Sec. 924(c) (1). In Barber we stated that " [a]lthough the statute does not expressly mention any mental element in stating the offense, 'knowledge' or 'willfulness,' meaning knowledge of the facts constituting the offense, is ordinarily implied." Id. at 1244 (citations omitted). In a footnote, we distinguished the level of culpability implicit in 18 U.S.C. § 924(c) (2) from the "highly sophisticated" culpability levels of other crimes. Id. at 1244 n. 1. We stated in Barber that " [a]ll that is meant by this rudimentary mental element is that the defendant voluntarily and intentionally did the act or acts charged." Id. at 1244. We concluded in Barber that because the jury instructions had included the mental state of "knowingly," reversible error had not occurred. Id.

In cases involving federal firearms statutes, other circuits have also refused to impose a burden upon the government to prove that the defendant acted intentionally. See United States v. Udofot, 711 F.2d 831, 835 (8th Cir. 1983), cert. denied, 464 U.S. 896 (1983) ("Congress will not be presumed to have required specific intent as an element of the crime where the purpose of the statute is the regulation of dangerous objects such as firearms."); United States v. Nelson, 733 F.2d 364, 370 (5th Cir. 1984), cert. denied, 469 U.S. 937 (1984) ("We have never held that the government must prove that the defendant knew that his or her act of carrying a firearm was unlawful in order to sustain a conviction under section 924(c) (2)").

In the present matter, the district court instructed the jury that the government was required to prove that Marquez "knowingly" carried a firearm. This instruction was consistent with our holding in Barber. Furthermore, Jury Instruction No. 20 distinguished knowing acts from those which occur because of accident or mistake, or those of which defendant was unaware. Marquez's objection to the jury charge is without merit. Jury Instruction No. 17 and Jury Instruction No. 20 adequately informed the jury of the mental state required to prove a violation of 18 U.S.C. § 924(c) (1).

AFFIRMED.

 *

Honorable William H. Orrick, Jr., Senior United States District Judge for the Northern District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3