United States v. Alvarez

86 F.3d 901, 96 Cal. Daily Op. Serv. 4336, 96 Daily Journal DAR 7045, 1996 U.S. App. LEXIS 14719, 1996 WL 330479
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 18, 1996
DocketNo. 94-50187
StatusPublished
Cited by46 cases

This text of 86 F.3d 901 (United States v. Alvarez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alvarez, 86 F.3d 901, 96 Cal. Daily Op. Serv. 4336, 96 Daily Journal DAR 7045, 1996 U.S. App. LEXIS 14719, 1996 WL 330479 (9th Cir. 1996).

Opinion

OPINION

FLETCHER, Circuit Judge:

Jairo Cuevas Alvarez (“Cuevas”) appeals from his judgment of conviction on cocaine trafficking charges. Cuevas contends that the government committed Brady error by failing to produce exculpatory evidence, that the trial court erred by denying his motion for disclosure of tape-recorded surveillance notes pursuant to the Jencks Act, and that the court erred by denying his motion for a new trial based on newly discovered evidence improperly withheld by the government.

Although we find that the United States improperly carried out its discovery responsibilities under the Jencks Act and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), we conclude that Cuevas was not prejudiced by the United States’ actions. We have jurisdiction under 28 U.S.C. § 1291 and affirm.1

I.

On June 4, 1992, a federal grand jury returned a 13-count indictment against defendants Cuevas, Yepez, Ortiz, Jose Pinto, Edgar Florez, and Oscar LNU (i.e., last name unknown). All defendants were charged in count one with conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1). Cuevas and Ortiz were charged in count twelve with possession of 935 kilograms of cocaine with intent to distribute it and in count thirteen with distribution of 935 kilograms of cocaine. Oscar was never apprehended. Pinto and Florez pled guilty to count one. Their sentences were affirmed by this court in United States v. Pinto, 48 F.3d 384 (9th Cir.), cert. denied, — U.S. -, 116 S.Ct. 125, 133 L.Ed.2d 74 (1995).

On May 20, 1993, trial of Yepez, Cuevas, and Ortiz began. At trial, the government introduced surveillance testimony of the investigating officers and “expert drug trafficking testimony” consistent with the officers’ observations to support its theory that Yepez headed a large-scale, sophisticated cocaine-distribution organization of which Ortiz and Cuevas were members. Anaheim Police Department investigators testified regarding their investigation of defendants from February 1, 1992 to March 12, 1992, during the course of which they seized approximately 1120 kilograms of cocaine.

On June 10, 1993, defendants were found guilty on all counts. On March 17, 1994, the district court sentenced Yepez to life imprisonment, Cuevas to 292 months imprisonment, and Ortiz to 235 months imprisonment.

II.

A. Brady Error

Cuevas contends that the government’s untimely disclosure of exculpatory and impeachment evidence relating to the testimony of surveilling officers unduly prejudiced his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Alleged Brady violations are reviewed de novo. United States v. Lehman, 792 F.2d 899 (9th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986).

The United States turned over to the defense final surveillance reports prepared by investigating officers expected to testify. It did not, however, turn over those officers’ “rough notes.” Yepez filed a pre[904]*904trial motion, joined by Cuevas, for discovery of rough notes.2 The United States represented that Anaheim Police Department Investigator Richard Smith had reviewed law enforcement officers’ rough notes and found no discrepancies. On the basis of this representation, the district court denied the motion.

Several days before trial, the United States turned over a statement by one Enrique Ramirez, the resident of 9010 Burke Street where the 935 kilograms of cocaine Cuevas was alleged to have distributed were allegedly stored, that he had told Smith that no cocaine was stored in his residence. In explaining why she had not disclosed the information sooner, the Assistant United States Attorney (AUSA) said that because Ramirez was obviously lying, the statement was not exculpatory. Upon receipt of this statement, Cuevas renewed his motion for rough notes, contending that the government obviously did not understand its Brady obligation. The district court commented that “government’s counsel certainly misunderstood its obligations so far as it pertains to the Ramirez interview with Smith, but that’s been cured.” The court directed the prosecutor to review all rough notes and disclose anything exculpatory on its face with the Ramirez incident in mind. Two days later the government represented that Investigator Smith had reviewed all the notes, and the court commented that “I don’t think Investigator Smith is disqualified from doing that.”

During trial, Cuevas again asked that rough notes be turned over, contending that Smith didn’t understand the government’s obligation under Brady. The court denied the motion, but directed the AUSA herself, as opposed to Investigator Smith, to review the notes. On June 1,1993, halfway through the trial, the prosecutor represented that she had reviewed the rough notes and found three discrepancies. She disclosed copies of Investigator Smith’s rough notes of March 11, 1992. Within these notes, Investigator Smith identified the individual who met with Yepez and Herrera on March 11,1992 during the alleged “dry run” of the distribution of 935 kilograms of cocaine as Oscar LNU, not Cuevas as he had previously stated. On the basis of this failure to disclose, the defense moved for a mistrial or to strike the testimony of Investigator Smith and for the government to turn over all “rough notes.” The government offered to recall Investigator Smith. The court denied Cuevas’s motions and refused to review the notes, finding that the government had fulfilled its Brady obligation. The government recalled Smith and the defense cross-examined him regarding the discrepancies in his report.

“[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.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Impeachment evidence falls within the Brady rule. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Evidence is material under Brady 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.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

Cuevas does not cite any authority for the proposition that the prosecutor herself, as opposed to an agent, must review all rough notes for Brady

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Bluebook (online)
86 F.3d 901, 96 Cal. Daily Op. Serv. 4336, 96 Daily Journal DAR 7045, 1996 U.S. App. LEXIS 14719, 1996 WL 330479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alvarez-ca9-1996.