Unpublished Disposition, 930 F.2d 30 (9th Cir. 1989)

MEMORANDUM^** 

Appellants Raymond Freitas and Jonny McClellan were indicted and convicted of the crimes of conspiring to manufacture approximately 150 pounds of methamphetamine, 21 U.S.C. § 846; possession of phenyl-2-propanone (P-2-P), a controlled substance with intent to manufacture methamphetamine, 21 U.S.C. § 841(a) (1); possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a) (1).¹  Freitas and McClellan appeal their convictions raising the following issues: (1) they were unconstitutionally deprived of due process in their right to a fair trial when the trial court allowed the prosecutor to withdraw submitted evidence; (2) the trial court's ruling quashing Freitas' subpoena regarding information concerning John Haye amounted to a Brady violation; (3) the government engaged in prosecutorial misconduct; (4) the district court erred in admitting a statement uttered by Freitas before he received his Miranda warnings; and (5) the district court erred in denying Freitas' and McClellan's motion for a new trial based upon jury misconduct. For the reasons set forth below we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

The police began surveillance of Freitas and McClellan in July, 1984. That surveillance led police to obtain and execute a search warrant at a residence located at 9839 Crestview Drive in Clearlake, California, on December 20, 1984. Upon entering the house, agents located Ray Freitas lying next to a large 72 liter reaction vessel on the third floor of the residence. McClellan was asleep on the first level. The police located various chemicals and chemical waste products in the garage, the third floor and the attic. The police confiscated a laboratory which was operating on the third floor and in the attic. The evidence indicated that there was a strong chemical odor in the house. The chemicals and equipment confiscated by the police department were later determined to be the precursor elements necessary to the manufacture of methamphetamine in large quantities.

Freitas and McClellan were arrested and indicted. Trial commenced May 30, 1989.²  Just prior to trial, Freitas and McClellan caused a subpoena duces tecum to be delivered to the Drug Enforcement Administration office in San Francisco and the United States Attorney's office in San Francisco. The subpoena sought to have the government produce all information pertaining to John Haye. The court quashed the subpoena, concluding that it was an improper method of obtaining discovery in circumvention of Rule 16 and that compliance with the subpoena would be unreasonable and oppressive.

At trial the government introduced testimony over the objection of Freitas. The evidence pertained to the time of the arrest of Freitas. After Freitas' apprehension, he was handcuffed and taken downstairs. The DEA chemist who was helping in the search approached another officer who was with Freitas and asked if he should turn off the heat going to the reaction flask. In response to this inquiry to the officer, Freitas stated, "I turned it off three hours ago." At that point Freitas had not received any Miranda warnings.

At trial, a DEA forensic chemist gave expert testimony concerning the chemicals that were found at the location. While he testified as to the nature of the chemicals and illegal substances obtained, he also gave his opinion as to the production capacity of the lab had more chemicals been available to the defendants. This was significant because the government also produced evidence that defendants had non-exclusive access to storage lockers rented by them and others which contained chemicals that were precursors to the manufacture of methamphetamine.³  With the opinion of the expert witness coupled with the extra chemicals located in the storage lockers, the government was able to show that the laboratory had the capacity to produce up to 44 pounds of methamphetamine.

The government also produced fingerprint evidence. Freitas' fingerprints were found on the cover of a chemical supply book found in the third floor bathroom, a glass in the living room, and a television in the area where Freitas was found sleeping next to the reaction vessel. The police also located 26 of McClellan's fingerprints on various pieces of lab equipment seized from the third floor and attic of the house.

At trial the government sought to introduce three documents identified as torn receipts and handwritten notes concerning chemicals. They were retrieved from a trash can from Freitas' house in Oakland. Neither Freitas nor McClellan objected to the introduction of the exhibits. After the exhibits had been identified, but before they had been shown to the jury, defendants requested a sidebar conference. McClellan and Freitas claimed that these three exhibits had been planted by a corrupt Oakland police officer. Apparently there may have been merit to this claim, as the police officer in question had allegedly planted cocaine on Freitas' boat in September, 1985, which led to the boat's seizure. Freitas and McClellan wanted to argue that the same officer may have planted the three exhibits during the search of Freitas' home in December, 1984. The government chose to withdraw the evidence. The court instructed the jury to disregard it.

On June 21, 1989, the jury returned a guilty verdict on all three counts against Freitas and McClellan. On June 30, 1989, the district court received a letter from one of the jurors alleging that extrinsic evidence had been introduced into the jury deliberations by another juror. Specifically, that juror stated that another juror had asked her family doctor what percentage of people cannot smell. The doctor responded that one percent of the population cannot smell. The juror relayed this information to the rest of the jury during deliberations.

Based on this information, Freitas and McClellan moved for a new trial. The court conducted an evidentiary hearing on September 15, 1989. Following the hearing the trial court concluded that the jurors' discussion regarding this information was brief. The court concluded beyond a reasonable doubt that the brief discussion of smelling deficiencies among the general population by the jury could not have affected the outcome of the trial. Accordingly, the trial court denied Freitas' and McClellan's motion for a new trial.

DISCUSSION

* THE CONSTITUTIONAL FAIR TRIAL AND DUE PROCESS CLAIMS.

We begin by examining appellants' contention that they were deprived of due process and the constitutional right to a fair trial because the trial court allowed the prosecutor to withdraw evidence in the form of receipts from a chemical company and some handwritten notes seized from Freitas' house in Oakland. Ordinarily, rulings on the admissibility of evidence are reviewed for an abuse of discretion. U.S. v. Catabran, 836 F.2d 453, 456 (9th Cir. 1988). The trial court may, in its discretion, allow a party to withdraw evidence that has been admitted. Kuhn v. U.S., 24 F.2d 910, 913 (9th Cir. 1926), modified on other grounds, 26 F.2d 463 (9th Cir.), cert. denied, 278 U.S. 605 (1928). At least one circuit has held that a party does not have an absolute right to have evidence withdrawn; the withdrawal is at the discretion of the trial court. U.S. v. Bayne, 612 F.2d 952, 953 (5th Cir. 1980).

In this case the evidence the government submitted indicated that Freitas has purchased chemicals. The items were submitted to the court but never entered into evidence. At sidebar conference the defendants' attorneys indicated that they would produce a handwriting expert who would testify that the handwriting on the receipts was from Oakland police officer Terry Tyke, who participated in the search of Freitas' home. In a separate incident Officer Tyke was suspected of planting cocaine on Freitas' boat. The defense wanted to show that, like the cocaine on the boat, these receipts were planted by Office Tyke in Freitas' home. The information concerning the boat incident had been the subject of a motion in limine by the prosecution which was granted by the trial court before trial.

These items were submitted towards the end of the prosecution's case-in-chief. Defense counsel wanted extra time in order to properly rebut the evidence offered for submission by the prosecution. The prosecutor chose to withdraw the evidence in light of these developments. We do not believe the trial court abused its discretion by allowing the prosecution to withdraw the evidence. From the record it appears that the evidence was cumulative in nature. Moreover, the record indicates that the court gave the jury instructions to disregard the evidence. See U.S. v. Johnson, 618 F.2d 60, 62 (9th Cir. 1980).

Defendants raised several constitutional issues regarding the trial court's allowing the prosecutor to withdraw those items of evidence, including the right to confront witnesses and the right to due process. We conclude that the trial court's decision to allow the prosecution to withdraw the evidence does not have the constitutional ramifications urged by appellants.

Freitas and McClellan also argue that their due process rights were violated by the trial court's refusal to allow them to admit evidence that the documents may have been falsified. Specifically, they argue that the record shows a bad faith failure by the police to collect potentially exculpatory evidence under Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989), and that the record demonstrates that the prosecutor knowingly used false evidence to convict the defendant under Napue v. Illinois, 360 U.S. 264, 269 (1959). However, the defendants are incorrect in their conclusion that the record contains such a showing. Accordingly, we affirm the trial court's decision to allow the prosecution to withdraw the evidence and conclude that such did not deprive McClellan or Freitas of any constitutional rights.

II

DISTRICT COURT DECISION TO QUASH DEFENDANTS' SUBPOENA.

Freitas and McClellan argue that the government had exculpatory material concerning John Haye which the government was obligated to disclose under Brady v. Maryland, 373 U.S. 83 (1963). This court reviews de novo challenges to a conviction based on a Brady violation. U.S. v. Kennedy, 890 F.2d 1056, 1058 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 1308 (1990). To prove a Brady violation, the defendant must show failure to disclose material evidence. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. U.S. v. Tham, 884 F.2d 1262, 1266 (9th Cir. 1989).

Appellants appear to complain that the government withheld information indicating that John Haye had control of a large portion of the chemicals attributed to Freitas and McClellan. However, the government stipulated that the chemicals discovered in locker 803 were in John Haye's control, thereby meeting its burden of disclosing this exculpatory evidence to the defense. Freitas and McClellan have not demonstrated that the outcome of the trial would have been any different had they received this information sooner. Nor have they demonstrated that the government withheld any other material exculpatory evidence supporting their assertion that John Haye "masterminded" the laboratory operation and set Freitas up. We therefore find no Brady violation.

III

PROSECUTORIAL MISCONDUCT.

Freitas and McClellan claim that the prosecution deliberately misled the jury by attributing to them ten gallons of methylamine from storage locker number 803. They claimed that they did not control locker 803 which was rented by John Haye. The government points out that ten gallons of methylamine was actually contained in locker number 709 which was rented by Luis Marcus. This chemical was significant because it was in an amount necessary to increase the lab capacity to 44 pounds from 30 pounds. The government showed that while locker number 709 was rented by Luis Marcus, Walter Freitas had access to the locker; that he and his brother had paid rent on the locker; and that following his arrest and subsequent release from custody Raymond Freitas and McClellan had removed the remaining contents of the locker into locker number 177 (Raymond Freitas' locker). While the government did show that other chemicals were found in locker number 803, this evidence was admitted without objection. It is significant to note that the government stipulated that if Haye were called as a witness he would testify that the chemicals in locker number 803 belonged to him and another individual and not to the defendants.

Based on our examination of the record we cannot conclude that the prosecution engaged in materially misleading conduct denying the appellants a fair trial. U.S. v. Davenport, 753 F.2d 1460 (9th Cir. 1985). Additionally, there is no indication in the record that the prosecution knew the information was false when it proffered the documents. Accordingly, for reasons stated above we conclude that there was no prosecutorial misconduct in this case.

IV

ADMISSION OF FREITAS' PRE-MIRANDA WARNING STATEMENT.

We next address Freitas' and McClellan's assertion that the trial court erred in allowing the prosecution to introduce evidence obtained during a pre-Miranda custodial interrogation. The determination of whether Freitas was subjected to a custodial interrogation is essentially a factual determination. Medeiros v. Shimoda, 889 F.2d 819, 822 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 3219 (1990). We review factual determinations under the clearly erroneous standard of review. Id.

It is uncontested that Freitas was in police custody when the DEA chemist present asked the question whether to turn off the reaction flask on the third floor. The question posed to the trial court was whether Freitas was the subject of the interrogation. The trial court concluded that the DEA chemist asking the question directed it not at Freitas, but at another officer participating in the execution of the search warrant.

An interrogation is any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); Medeiros v. Shimoda, 889 F.2d at 829. Two officers testified to the circumstances surrounding the question and the statement made by Freitas. Both understood the question to be directed at an officer and not to be directed at Freitas. Based on this evidence in the record we cannot conclude that the district court erred in determining that Freitas was not the subject of the interrogation. Accordingly, his statement that he turned off the reaction vessel three hours before was not subject to Miranda.⁴  Further, the statement was made spontaneously, and not as the result of coercion by the officers. Therefore, the district court did not err in admitting Freitas' statement.

V

MOTION FOR A NEW TRIAL BASED ON JUROR MISCONDUCT.

Lastly, we address Freitas' and McClellan's contention that the trial court erred in denying their motion for a new trial based on jury misconduct. The defendants carry a significant burden in showing the district court abused its discretion in denying a motion for new trial. U.S. v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986). We review alleged jury misconduct independently, in the context of the entire record. U.S. v. Madrid, 842 F.2d 1090, 1092 (9th Cir.), cert. denied, 488 U.S. 912 (1988). We give substantial weight to the trial judge's conclusion as to the effect of the alleged jury misconduct. We further give considerable deference to the trial judge, since the trial judge is uniquely qualified to appraise the probable effect of information upon the jury, the materiality of the extraneous material, and its prejudicial nature. Id., quoting U.S. v. Steele, 785 F.2d 743, 746 (9th Cir. 1986). We look less harshly upon a conviction when the trial court has conducted an evidentiary hearing. Id.

In this case an evidentiary hearing was conducted by the trial court. In a well-reasoned decision denying defendants' motion for a new trial the court concluded:

Beyond a reasonable doubt the brief discussion of smelling deficiencies among the general population by the jury could not have affected the outcome of their trial. The extrinsic evidence was before the jury only on the second day of deliberations and was discussed only for a short time. The jury had no evidence before it other than that presented by the government and that elicited by the defense on cross-examination of government witnesses. The unanimous guilty verdict against Raymond Freitas and Jonny McClellan was relatively swift, returned in less than a full day of deliberations, indicating the strength of the government's case.

The court thus considered the proper factors to determine whether jury consideration of extrinsic evidence warranted a new trial. Marino v. Vasquez, 812 F.2d 499, 506 (9th Cir. 1987). Based on our independent review of the record, we conclude that the trial court correctly found no reasonable possibility that the extrinsic evidence at issue could have influenced the verdict. See U.S. v. Hernandez-Escarsega, 886 F.2d 1560, 1580 (9th Cir. 1989). Furthermore, even if the evidence had the potential of affecting the verdict, it was beyond a reasonable doubt that, in this case, it did not. Id. Accordingly, the trial court did not err in denying appellants' motion for a new trial.

CONCLUSION

In sum, Freitas and McClellan were not denied their constitutional rights to due process and a fair trial. The district court did not err when it quashed appellant's subpoena duces tecum. Neither does the record indicate that the prosecution failed to provide material exculpatory evidence. We further conclude that the prosecution engaged in no materially misleading conduct denying the appellants a fair trial. The district court did not err in admitting a pre-Miranda custodial statement; nor did the court err in denying appellant's motion for a new trial. The judgments of conviction are AFFIRMED.---------------