911 F2d 739 United States v. Noguera

911 F.2d 739

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Hernando NOGUERA, Defendant-Appellant.

No. 88-5424.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1990.
Decided Aug. 14, 1990.

Before HUG, BOOCHEVER and BEEZER, Circuit Judges.

1

MEMORANDUM*

2

Defendant-appellant Hernando Noguera ("Noguera") raises several issues concerning his conviction for conspiracy to possess with intent to distribute and to distribute cocaine and possession with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1988). We affirm.

I. Rule 15

3

Noguera argues the district court abused its discretion in denying his motion for a foreign deposition of his fugitive codefendant wife Maria Elvira Escallon ("Escallon"), pursuant to Fed.R.Crim.P. 15(a). See United States v. Hernandez-Escarsega, 886 F.2d 1560, 1569 (9th Cir.1989), cert. denied, 58 U.S.L.W. 3817 (1990).

4

Fed.R.Crim.P. 15(a) permits the taking of depositions to preserve testimony for use at trial. However, this is only to be in exceptional circumstances when required in the interests of justice. Although the witness's fugitive status does not preclude a deposition under Rule 15, it is a relevant factor. Hernandez-Escarsega, 886 F.2d at 1569. Although Noguera argues that the district court refused to grant the request because of Escallon's fugitive status, we do not agree. There were ample grounds for the district judge to have found the lack of exceptional circumstances required by Rule 15. The submitted declaration of Escallon's proposed testimony lacked the critical showing that her testimony could have exculpated Noguera. Rather, the testimony pertained to her lack of involvement. It was not an abuse of discretion to deny the deposition.

II. Motion to Suppress

5

Noguera challenges the district court's denial of his motion to suppress (1) the cocaine found in the pickup truck and (2) the calendar found in the apartment pursuant to the search consented to by Escallon.

A. Cocaine in Pickup

6

First, Noguera contends the district court erred in concluding he lacked standing to challenge the search of the contents of the four boxes containing cocaine in the back of the pick-up truck driven by the informant Guillermo Silva-Agudella ("Silva").

7

Noguera has not shown that the district court finding that Silva had an unquestioned right of access to the boxes was clearly erroneous. United States v. Mitchell, 812 F.2d 1250, 1253 (9th Cir.1987). The applicability of the "invited informer" doctrine, relied upon by the Government, turns on whether Silva exceeded any limitations on consent given to him by Noguera. United States v. Aguilar, 883 F.2d 662, 698 (9th Cir.1989); Jones v. Berry, 722 F.2d 443, 447 n. 6 (9th Cir.1983), cert. denied, 466 U.S. 971 (1984). Noguera argues that the invited informer doctrine is inapplicable because the alleged illegal acts of Silva were attributable to the Government since Silva was purportedly acting at the direction of and as the instrument of the Government. See, e.g., Corngold v. United States, 367 F.2d 1, 6 (9th Cir.1966) (en banc). However, the invited informer doctrine may apply to undercover agents and informers. Jones, 722 F.2d at 447; see also Aguilar, 883 F.2d at 698 (noting applicability of doctrine "even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed") (emphasis and citations omitted); United States v. Snowadzki, 723 F.2d 1427, 1429 (9th Cir.) (noting the "burden of establishing government involvement in a private search rests on the party objecting to the evidence"), cert. denied, 469 U.S. 839 (1984).

8

The district court also correctly denied the motion to suppress Noguera's calendar seized from the Kelton Street apartment after his arrest. Because no declarations or evidence were properly admitted on this issue, Noguera did not meet his burden to establish standing.

9

Noguera also challenges the district court's denial of his suppression hearing requests to call and cross-examine Silva and Los Angeles Deputy Sheriff Leo Newman ("Newman"), who had submitted declarations on behalf of the Government.

10

There was no abuse of discretion by the district court in denying Noguera a pretrial opportunity to call and cross-examine the informant Silva. United States v. Gomez, 846 F.2d 557, 559 (9th Cir.1988). First, Noguera had the burden to establish standing at the suppression hearing. United States v. Kovac, 795 F.2d 1509, 1510 (9th Cir.1986), cert. denied, 479 U.S. 1065 (1987). The district court relied upon Noguera's hearing testimony which it found was not controverted by the Silva declaration. The district court found cross-examination was unnecessary because Noguera had testified at the suppression hearing that he had given Silva unrestricted access to the boxes.

B. Search of Apartment

11

The denial of the motion to suppress the evidence obtained from the search of the apartment was not clear error.

12

Noguera contends that the denial of his request to cross-examine Newman at the suppression hearing was error. Newman's declaration concerned the alleged consent Escallon gave him and other deputies to enter Noguera's apartment following his arrest. The court concluded that Noguera had not made Escallon available pursuant to Central District Local Rule 9.4 and, thus, denied the request to cross-examine Newman on the consent issue. Noguera argues that this was one of the purposes of taking Escallon's deposition. However, even if the refusal to allow cross-examination of Newman was error, it was harmless. Newman was not called as a witness at trial, and the calendar was the only introduced evidence seized from the Kelton apartment. In light of all the evidence concerning Noguera's involvement in the cocaine distribution scheme, any impact of the calendar at trial was insignificant.

III. Limitations on Trial Cross-Examination

13

Noguera contends the trial court curtailed his opportunity for effective cross-examination concerning four areas: (1) Noguera's calendar or proposed ledger; (2) certain tape-recorded statements; (3) the Government's failure to produce the DEA policy manual; and (4) the destruction of rough notes by the DEA case agent.

14

No abuse of discretion by the trial court has been shown. United States v. Lopez, 885 F.2d 1428, 1438 (9th Cir.1989), cert. denied, 110 S.Ct. 748 (1990). See also Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Significantly, Noguera does not contend that he was completely deprived of cross-examination in each challenged area. Rather, Noguera asserts his cross-examination was improperly curtailed. A review of the record shows he was given ample opportunity for cross-examination. See, e.g., Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (noting "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish") (emphasis in original) (cited in Van Arsdall, 475 U.S. at 679). In several instances the trial court ruled the cross-examination was repetitive or marginally relevant. With regard to the DEA Policy Manual, cross-examination put before the jury specific manual policies which were not followed by the DEA case agent. Further, the case agent's testimony revealed that the substance of the rough notes was contained in formal debriefing reports which were provided to defense counsel. Noguera's counsel cross-examined the case agent concerning the interviews which relied in part on these reports. Under these circumstances, Noguera has not established he was prejudiced by the destruction of the notes by the case agent. Other contentions of Noguera on this cross-examination issue are unpersuasive.

IV. Grand Jury Disclosure

15

Noguera sought disclosure of grand jury transcripts of November, 1987 (resulting in an indictment against him) and February, 1988 (resulting in a first superseding indictment against both Noguera and his wife Escallon). Prior to a hearing on the disclosure motion, the Government voluntarily turned over the November transcript to Noguera.

16

The district court acted within its discretion in finding that Noguera failed to meet his burden of showing a particularized need for the February grand jury transcript. United States v. Murray, 751 F.2d 1528, 1533 (9th Cir.), cert. denied, 474 U.S. 979 (1985); Wolf v. Oregon State Bar (In re: Barker), 741 F.2d 250, 255 (9th Cir.1984). First, Noguera broadly sought disclosure of "all testimony presented to the Grand Jury." Second, the basis of the request concerned "suspicious" facts regarding alleged improprieties before the grand jury. Specifically, he desired to ascertain "whether the government had neglected to obtain, or had withheld, critical evidence." See, e.g., United States v. Ferreboeuf, 632 F.2d 832, 835 (9th Cir.1980) ("Mere 'unsubstantiated, speculative assertions of improprieties in the proceedings' do not supply the 'particular need' required to outweigh the policy of grand jury secrecy."), cert. denied, 450 U.S. 934 (1981). Further, Noguera received from the Government the November transcript as well as reports on which the DEA agent's February grand jury testimony was based. Under these circumstances, the district court also acted within its discretion in declining to review the grand jury materials in camera. Id.; see also Dennis v. United States, 384 U.S. 855, 874 (1966).

V. Grand Jury Abuse

17

Noguera alleges that testimony presented to the grand jury "summarized perjurious, material evidence" from the informant and therefore the first superseding indictment was the product of an abuse of the grand jury process. Post-conviction review of alleged grand jury abuse is limited to whether substantial rights protected by the due process clause were affected. United States v. Eccles, 850 F.2d 1357, 1364 (9th Cir.1988). Review of a district court's refusal to dismiss an indictment for prosecutorial misconduct is de novo. United States v. Spillone, 879 F.2d 514, 520 (9th Cir.1989).

18

Due process may be violated where the prosecutor knowingly uses perjured testimony before the grand jury. United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir.1974). However, any evidence based upon alleged perjury must still be shown to have affected "fundamental fairness" or "substantially influence the grand jury's decision to indict." Spillone, 879 F.2d at 524. The alleged perjury of the informant pertained solely to Escallon and therefore did not substantially affect the decision to indict Noguera. Noguera's bare allegations of alleged evidence tainted by perjury is an insufficient showing to warrant a fishing expedition on this issue.

VI. Special Assessment

19

The sentencing court imposed a special assessment of $100 under Noguera's conviction, pursuant to 18 U.S.C. Sec. 3013 (1988). Noguera challenges this special assessment relying on United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988). The special assessment is affirmed in light of the Supreme Court's recent reversal of Munoz-Flores. United States v. Munoz-Flores, 110 S.Ct. 1964 (1990).

20

AFFIRMED.

*

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