Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1989)

MEMORANDUM^* 

Alejandro Carbajal-Ortiz appeals his conviction for conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 963 and for possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a) (1). He contends that the district court (1) improperly limited cross-examination of the government's informant, (2) improperly allowed the government to cross-examine Carbajal-Ortiz regarding his postarrest silence, (3) utilized an improper discovery procedure and abused its discretion in determining what material was discoverable, (4) abused its discretion by failing to respond to the jury's question regarding an entrapment instruction, (5) improperly sentenced him pursuant to the Sentencing Reform Act of 1984, and (6) misapplied the sentencing guidelines in sentencing him.

I. Limitation on Cross-Examination of Poscic

Carbajal-Ortiz contends that the district court abused its discretion in limiting cross-examination of Steven Poscic, the government informant, regarding the potential penalty he would have faced for past drug smuggling had he not received immunity from the government. Carbajal-Ortiz argues that the limitation violated the confrontation clause in that this evidence affected Poscic's credibility and its disclosure to the jury was necessary to expose Poscic's possible bias and motive in testifying.

In light of the abundance of evidence brought out on cross-examination showing Poscic's possible bias and motive, we find that the district court did not abuse its discretion in restricting the cross-examination of Poscic regarding the penalty he would have faced for drug smuggling had he not entered into the immunity agreement. See United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir. 1987) (because defendants had opportunity to extensively cross-examine witness regarding terms of plea agreement and regarding witness' honesty during investigation, no confrontation clause violation had occurred).

II. Impeachment of Carbajal-Ortiz concerning his Pre/Postarrest Silence

On cross-examination, the prosecutor questioned Carbajal-Ortiz about his silence when he was first confronted by the police officers in the Safeway supermarket parking lot. Carbajal-Ortiz' attorney objected to this line of questioning and requested a mistrial. The district court denied the request, stating that the questions concerned Carbajal-Ortiz' prearrest silence only.

Carbajal-Ortiz contends that the questioning constituted improper cross-examination regarding his postarrest silence, in violation of Doyle v. Ohio, 426 U.S. 610 (1976), which held that the use for impeachment purposes of a defendant's silence, at the time of arrest and after receiving Miranda warnings, violates the due process clause of the fourteenth amendment. We conclude that the district court's factual finding that the questioning concerned Carbajal-Ortiz' prearrest silence is not clearly erroneous. Therefore, Doyle is inapplicable and no constitutional violation occurred. See Jenkins v. Anderson, 447 U.S. 231, 240 (1980) (" [I]mpeachment by use of prearrest silence does not violate the Fourteenth Amendment.").

III. District Court's Discovery Procedure and Determination of What was Discoverable

In response to Carbajal-Ortiz' general request for exculpatory evidence, the government submitted to the district court documents concerning Drug Enforcement Administration investigations that the government believed might be discoverable under Brady v. Maryland, 373 U.S. 83 (1963).¹  The government requested that portions of these materials be suppressed because they did not go to the guilt or innocence of Carbajal-Ortiz. The district court, after examining the materials in camera, concluded that the deleted portions were not discoverable because they either related to an ongoing investigation, were irrelevant, or were cumulative. Carbajal-Ortiz contends that the district court utilized an improper discovery procedure in making the determination that the deleted materials were not discoverable. He also argues that it was not for the district court to speculate whether and how such material could be used at trial and that, therefore, he should have been provided with the allegedly irrelevant or cumulative materials so that he could argue their relevance to the district court.

The government and the district court correctly followed the procedure set forth in United States v. Gardner, 611 F.2d 770 (9th Cir. 1980), for determining what materials are subject to discovery pursuant to Brady.²  Therefore, the in camera inspection was not an abuse of discretion.

In addition, after reviewing the deleted portions of the documents, we conclude that the district court did not abuse its discretion in finding that these portions were not material to Carbajal-Ortiz' guilt or punishment. See Gardner, 611 F.2d at 774 ("the test for materiality is whether the suppressed evidence 'creates a reasonable doubt that did not otherwise exist' ") (quoting United States v. Agurs, 427 U.S. 97, 112 (1976)).

Carbajal-Ortiz also argues that the district court's failure to turn over all of the requested materials violated the Jencks Act, 18 U.S.C. § 3500, which requires the government to produce any written statements by a government witness that relate to the subject matter of any direct testimony by that witness. See United States v. Wallace, 848 F.2d 1464, 1470 (9th Cir. 1988). Because the deleted materials either were not statements by a government witness or concerned a separate investigation, unrelated to the subject matter of the witness' direct testimony, the district court did not abuse its discretion in refusing to turn them over to Carbajal-Ortiz.

IV. District Court's Response to the Jury's Question Regarding the Entrapment Instruction

After the jury retired, it sent a note to the district court asking for clarification of an entrapment instruction. The jury instruction originally given on entrapment had been requested by Carbajal-Ortiz and is the stock instruction on entrapment from the Manual of Model Jury Instructions for the Ninth Circuit Sec. 6.02 (1985 ed.). Carbajal-Ortiz contends that the district court abused its discretion in instructing the jury to reread the instruction rather than supplementing the instruction by responding that entrapment could be "verbal or otherwise."

We agree with the government that the entrapment instruction adequately explained the law and that no supplemental instruction was necessary. Thus, looking at the jury instructions as a whole, United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986), the district court did not abuse its discretion in failing to respond to the jury's question in the way Carbajal-Ortiz' attorney wanted it to.

V. The District Court's Use of the Sentencing Guidelines in Sentencing Carbajal-Ortiz

Carbajal-Ortiz contends that the district court erred in sentencing him pursuant to the Sentencing Reform Act of 1984 and the guidelines promulgated by the United States Sentencing Commission (guidelines) because they had been found unconstitutional by this court, see Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), vacated, United States v. Chavez-Sanchez, 109 S. Ct. 859 (1989), and had not yet been found constitutional by the Supreme Court at the time Carbajal-Ortiz was sentenced. See Mistretta v. United States, 109 S. Ct. 647 (1989). This argument is without merit. Since Mistretta was decided, we have ordered in several cases that defendants who were sentenced under prior law after the guidelines were found unconstitutional in Gubiensio-Ortiz be resentenced under the Sentencing Reform Act based on the Supreme Court's decision in Mistretta. See United States v. Bazemore, No. 88-1404, slip op. at 1881, 1883 (9th Cir. March 8, 1989); United States v. Elfer, No. 88-5374, slip op. at 1899, 1900 (9th Cir. March 8, 1989); see also United States v. Kane, No. 88-1402, slip op. at 5575, 5578 ("retroactively applying Mistretta [to defendants sentenced under prior law after Gubiensio-Ortiz was decided and before Mistretta was decided] will further the goal of the Sentencing Reform Act to standardize sentencing in federal courts").

In light of Mistretta, we cannot conclude that the district court's sentencing of Carbajal-Ortiz pursuant to the guidelines was error.

VI. District Court's Application of the Guidelines in Determining Carbajal-Ortiz' Sentence

Carbajal-Ortiz contends that he should have received a downward adjustment of his sentence by four points pursuant to section 3B1.2(a) or a downward adjustment of his sentence by two points pursuant to section 3B1.2(b) of the guidelines.³ 

The factual record supports the district court's conclusion that Carbajal-Ortiz was not a "minimal participant" or a "minor participant" in the criminal activity.⁴  The guidelines were therefore properly applied.

AFFIRMED.