United States v. Pamela Mejia Armenta Iglesias

881 F.2d 1519, 110 A.L.R. Fed. 299, 1989 U.S. App. LEXIS 12132, 1989 WL 90419

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 1989
• Docket: 88-3052
• Status: Published

Opinions

TANG, Circuit Judge:

On January 28, 1988, pursuant to Fed.R. Crim.P. 11(a)(2), Pamela Iglesias entered a conditional guilty plea to a charge of possession with intent to distribute heroin, reserving her right to appeal the district court’s denial of her motions to suppress and to compel discovery. We first determine whether the district court erred in refusing to suppress Iglesias’ incriminating cash that was seized when police searched her sister’s residence. Secondly, we decide whether the district court erred in ruling that Fed.R.Crim.P. 16(a)(1)(D) does not compel production by the government of certain internal documents. We affirm.

I. Factual and Procedural Background

On August 12,1987, a grand jury handed down a seven-count indictment against Iglesias and Collins. Count VII charged Iglesias and Collins with possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) to which Iglesias entered her conditional guilty plea. Judge Frye imposed a sentence of 12 years imprisonment followed by a Special Parole Term of 6 years. Iglesias is currently in federal custody serving this sentence.

A. Suppression Issue

The facts relevant to the suppression issue follow. On July 31, 1987, at about 2:00 p.m., Portland Police Sgt. Edward May and IRS criminal investigator Deborah Delt went to the residence of Iglesias’ sister, Shannon Anderson. After knocking on the door, Sgt. May told Anderson that he was investigating the drug activities of Iglesias. Iglesias claims she had a key to Anderson’s residence and permission to store her property there. When Anderson indicated a reluctance to talk about her sister, Sgt. May said that an alternative would be to have Anderson subpoenaed by the grand jury. According to Iglesias, Sgt. May also told Anderson that he would return with dogs and a search warrant if he didn’t get the information he wanted. According to the government, Sgt. May considered Anderson to be an “innocent bystander” and did not threaten her in any way.

Anderson then revealed the existence of a paper sack in the basement belonging to Iglesias and gave Sgt. May permission to retrieve it. At that point, Anderson’s husband came home and concurred in this permission. Delt and Anderson accompanied Sgt. May to the basement. Later inspection revealed that the sack contained cash including bills with prerecorded serial numbers from controlled drug transactions.

On October 30, 1987, with respect to the cash seized from Anderson’s residence, Iglesias filed a motion to suppress. The government filed a response on November 10, 1987.

Hearings were held on December 9, 1987 and January 12, 1988. An expert witness, Anne Filmore, testified that “a combination of factors, including Sgt. May s large size, overbearing manner, and body language were geared to frighten and intimidate Ms. Anderson,” and concluded that “[t]he cumulative effect of the interrogation was to terrify Ms. Anderson.” In denying the motion, Judge Burns did not rule on whether Iglesias had standing to assert a Fourth Amendment claim but concluded that the search was not unlawful.

B. Discovery Issue

The facts relevant to Iglesias’s request for discovery under Fed.R.Crim.P. 16(a)(1)(D) are as follows. A dark black sticky substance was purchased by an undercover Portland police officer from alleged co-conspirator Dee Collins. The substance was sent to the Drug Enforcement Administration (“DEA”) Regional Laboratory in San Francisco for analysis. The Forensic Chemist, Gary J. Sorgen, tested the substance and wrote a report dated August 6, 1987, indicating that the substance was 54.9% pure heroin.

On September 25, 1987, Iglesias submitted a discovery request to the government asking in part for

[a]ll documents associated with any scientific analysis of any controlled substance seized or otherwise obtained in the course of any investigation leading to or otherwise associated with the prosecution of this case. This request includes but is not limited to those records memorializing the storage and transportation of any such substance from the time of seizure or acquisition and thereafter up to and including the trial in this matter.

ER 23. The government provided Iglesias with the DEA lab report and agreed to set up a conference between defense counsel and the DEA chemist. The government, however, refused to turn over the “log notes,” protocols, and other internal documents of the chemists who worked on the analysis.

After the government refused to turn over the chemist's “log notes” and other such material, Iglesias filed a motion to compel the production of these documents. At the conclusion of the suppression hearing, the district court heard argument on the motion to compel. Judge Burns denied the motion and suggested that Iglesias accept the government’s offer to speak with the DEA chemist.

II. Suppression of Seized Cash

A. Standards of Review

We review the question of whether a defendant has standing to assert a Fourth Amendment claim de novo, United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir.1986), although we review the underlying facts for clear error. United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). We review for clear error a district court’s ruling that a consent to search was voluntary. United States v. Licata, 761 F.2d 537, 544 (9th Cir.1985).

B. Standing

In general, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises ... has not had any of his Fourth Amendment rights infringed.” United States v. Kinsey, 843 F.2d 383, 389 (9th Cir.), cert. denied, — U.S. -, 109 S.Ct. 99, 102 L.Ed.2d 75 (1988). In order to have standing to assert a Fourth Amendment claim, a defendant must have had an actual, subjective expectation of privacy. This expectation must be one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979).

The question of whether Iglesias has standing is a close one.¹ But because we hold that the search was not unlawful, we assume, without deciding, that Iglesias has standing to raise a Fourth Amendment claim.

C.Voluntariness of Consent

Iglesias raises two interrelated issues in support of her claim that Anderson did not really consent to the search and seizure of the cash. First, Iglesias argues that because of Sgt. May’s “threat” to have the grand jury issue a subpoena, Anderson’s statements to Sgt. May were involuntary, and that the seized cash should thus be suppressed as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Iglesias, relying on Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), points out that Sgt. May does not have the power to issue grand jury subpoenas. In Bumper, police officers obtained “consent” to search by falsely telling the occupant that they had a search warrant. The Court ruled that the “consent” was involuntary and therefore not valid. Bumper, 391 U.S. at 550, 88 S.Ct. at 1792.

The situation in the instant case does not rise to the level of the deception and coercion found in Bumper. Although Sgt. May himself does not have personal authority to issue grand jury subpoenas, it was not impermissible for him to inform Anderson that a search warrant and a grand jury subpoena were viable options. On this ground, the decision of the district court upholding the lawfulness of the search was not clearly erroneous.

Second, Iglesias argues that considering the totality of circumstances, Anderson’s consent was involuntary. Indeed, to be effective, consent to search must be given voluntarily. Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To support her claim that the consent was not given voluntarily, Iglesias alleges: (a) that Sgt. May made threats and assertions of authority that had no lawful basis (i.e., issuance of a grand jury subpoena, as discussed above); (b) that Anderson was vulnerable in her home and was confronted with separation from her small child, who was present during the interrogation; (c) that a substantial amount of time was required to overbear Mr. Anderson’s will; (d) that May and Delt utilized sophisticated psychological manipulation including a classic “Mutt and Jeff” approach; and (e) that Anderson indicated a desire to invoke her Fifth Amendment right against self-incrimination. None of these factors mentioned by Iglesias, either individually or in their totality, are sufficient to render Anderson’s consent involuntary. See United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1988). The decision of the district court in refusing to suppress the evidence was not clearly erroneous.

III. Discovery of Internal Government Documents

A district court’s discovery rulings under Fed.R.Crim.P. 16 will not be disturbed absent an abuse of discretion, United States v. Balk, 706 F.2d 1056, 1060 (9th Cir.1983), although we review de novo a district court’s legal construction of Rule 16. United States v. Givens, 767 F.2d 574, 583 (9th Cir.) (relating to Fed.R.Crim.P. 16(a)(1)(C)), cert. denied, 474 U.S. 953, 106 S.Ct. 321, 88 L.Ed.2d 304 (1985).

B. Rule 16(a)(1)(D)

The text of Fed.R.Crim.P. 16(a)(1)(D), in relevant part, is as follows:

Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph any results or reports of ... scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the government, the existence of which is known ... and which is material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.

If the material requested by Iglesias falls within the domain of Fed.R.Crim.P. 16(a)(1)(D), disclosure by the government is mandatory. Notes of Advisory Committee on 1974 Amendment to Fed.R.Crim.P. 16. The government does not claim that the requested material is irrelevant, nor does the government claim that it does not have the material in its possession. Rather, the crux of the government’s argument is simply that the requested material does not fall within the scope of the rule. The government’s position is that it satisfied its Rule 16(a)(1)(D) obligations by turning over the lab reports. We agree.

Looking again at the operative wording of Rule 16(a)(1)(D): the defendant is entitled to “any results or reports ... of scientific experiments” (emphasis added). If the requested documents are either “results” or “reports,” then Iglesias is entitled to the discovery. It is perhaps not immediately obvious whether the internal log notes are in fact “results” or “reports.”

The definition of the term “report” is “[a]n official or formal statement of facts or proceedings.” Black’s Law Dictionary 1464 (4th ed. 1968).² The definition of “result” is “the conclusion or end to which any course or condition of thing leads.” Id. at 1478. Certainly, the lab report that Iglesi-as did receive indicating 54.9% pure heroin is clearly a “report” or a “result” and thus does fall within the meaning of Rule 16(a)(1)(D).

But the requested log notes do not have the requisite formality or finality to be considered as either a “report” or a “result." Although it is possible that the requested log notes would allow Iglesias to provide a more effective defense, the government is under no legal duty under Rule 16(a)(1)(D) to turn over such informal internal documents.

Rule 16 was drafted “to expand the scope of pretrial discovery” while at the same time “to guard against possible abuses.” Notes of Advisory Committee on 1966 Amendment to Fed.R.Crim.P. 16. While we certainly respect defendants’ rights to inspect and copy the actual results or reports of scientific tests, we are not willing to force the government to disclose every single piece of paper that is generated internally in conjunction with such tests.

The 1974 Advisory Committee Notes to Rule 16(a)(1)(D) makes it clear that mandatory disclosure of reports of scientific tests is justified because:

(1) it is difficult to test expert testimony at trial without advance notice and preparation;

(2) it is not likely that such evidence will be distorted or misused if disclosed prior to trial; and

(3) to the extent that a test may be favorable to the defense, its disclosure is mandated under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

These justifications are not applicable to internal documents like the log notes requested by Iglesias. First, the actual reports received by Iglesias are sufficient to enable her to adequately cross-examine the government chemist.³ Second, unlike the final reports, the preliminary log notes are much more likely to be distorted and misused. Third, there are no allegations that the log notes must be disclosed under the mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

If we were to reverse the district court and compel the government to turn over the internal documents to Iglesias, this would violate both the plain meaning and the spirit of Rule 16(a)(1)(D), and also would place unreasonable burdens on the government in future cases.

IV.

The judgment of the district court is AFFIRMED.

1 . In support of having standing, Iglesias points to the facts (a) that the cash was seized from the residence of a close relative of Iglesias, her sister; (b) that the cash was in a "closed container" owned by Iglesias; (c) that Iglesias had "complete access" to the items stored in Anderson’s basement; and (d) that Iglesias had a "strong legitimate" expectation of privacy. On the other hand, to support its position that Igle-sias lacked standing, the government relies on the facts (a) that the search took place at the residence of a third party; (b) that Iglesias had given the seized cash to Anderson with instructions to distribute portions of that money to third-parties; (c) that Anderson and her husband used some of the money for their personal expenses; and (d) that the circumstances of this case do not demonstrate the sort of reasonable and subjective expectation of privacy which society is prepared to accept as legitimate.

2 . Similarly, the everyday definition of "report" is "[a]n account ... that is prepared, presented, or delivered, usually in formal or organized form.” American Heritage Dictionary 1103 (6th ed. 1976).

3 . Defendants can also challenge the accuracy of government reports with their own defense experts.