141 F3d 1182 United States of America v. A Padilla-Flores

141 F.3d 1182

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Luis A. PADILLA-FLORES, Defendant-Appellant.

No. 97-10066.
D.C. No. CR-96-397-PHX-RCB

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 15, 1998.
Decided March 13, 1998.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Appeal from the United States District Court for the District of Arizona Robert C. Broomfield, District Judge, Presiding.

2

Before WIGGINS and TASHIMA, Circuit Judges, and REA, District Judge.**

3

MEMORANDUM*

FACTS AND BACKGROUND

4

Appellant was stopped and arrested at the Mexican border in San Luis, Arizona. Border agents found 76 pounds of cocaine in a hidden compartment underneath the back seat of the car the Appellant was driving. Thereafter, the vehicle was seized and the Appellant was convicted of Importation of a Controlled Substance (Count 1) and Possession with Intent to Distribute Cocaine (Count 2).

5

At the end of the first day of trial, the government informed the Court and the Appellant's trial counsel, for the first time, that the Appellant had signed and mailed a power of attorney to the U.S. Customs Service which claimed ownership of the vehicle seized during his arrest and allowed a certain woman in Arizona to claim the vehicle. Appellant sent this power of attorney in response to a notice from the Department of the Treasury, U.S. Customs Service, which announced forfeiture procedures would commence against the vehicle. The notice, which was required by statute, informed the Appellant that he could petition for relief from forfeiture by setting forth, in no prescribed format, all facts which Appellant believed would warrant such relief.

6

Over objection by Appellant's trial counsel, the trial court allowed the power of attorney to be used for the limited purpose of impeachment only. Through its use on cross-examination, the affidavit went to the basis of the Appellant's defense wherein he claimed the vehicle was not his, but rather, he was only a "mule" and he was unaware that the car contained drugs.

7

After the jury rendered its verdict, and during the sentencing phase of the proceedings, the trial court found that the Appellant was not entitled to use the "safety valve" exception to reduce his sentence. This was based on the factual finding that the Appellant had not been truthful with the government.

8

From these proceedings, the Defendant appealed on two grounds. First, the trial court erred in allowing the government to use the Appellant's power of attorney for any purpose because it was the product of a violation of Appellant's Sixth Amendment right to counsel. Second, the trial court erred in denying application of the "safety valve exception."

ANALYSIS

9

I. The Government's Use of the Power of Attorney

10

The district court allowed the government to use the power of attorney for the sole purpose of impeachment. Because the government was aware of the power of attorney several days before trial and did not disclose its existence to the defense, the court precluded its use during the government's case in chief. Appellant argues that the government should not have been able to use the document for any purpose as it was a violation of his Sixth Amendment right to counsel.

A. Standard of Review

11

A district court's factual findings regarding the violation of the Sixth Amendment right to counsel are reviewed for clear error. United States v. Harris, 738 F.2d 1068, 1071 (9th Cir.1984) (citing See United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.1984) (en banc)). A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). "This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently." Id.

B. Analysis

12

Appellant first argues that the trial court committed reversible error in refusing to grant his motion to dismiss and preclude the use of the power of attorney. As both motions required the trial court to find that the Appellant's Sixth Amendment right to counsel had been violated, this Court must review that determination.

13

"In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Supreme Court interpreted Massiah as holding that a Sixth Amendment violation occurs when the government 'intentionally creat[es] a situation likely to induce [the defendant] to make incriminating statements without the assistance of counsel.' " Harris, 738 F.2d at 1071 (citing See United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115). "Henry establishes that the determinative issue is not the informant's subjective intentions, but rather whether the federal law enforcement officials created a situation which would likely cause the defendant to make incriminating statements." Id. Accordingly, this Court must determine whether it was clear error to find that the U.S. Customs Service did not create a situation likely to cause the appellant to make incriminating statements.

14

The trial court fleshed out the following factual record. The U.S Customs Service ("the Service") sent a formed notice of forfeiture as required by statute. The notice did not require a response, nor did it impose a penalty for failure to respond. Rather, it simply provided that, if the noticee felt certain circumstances mandated relief from the forfeiture proceedings, such circumstances should be fully set forth and returned within 30 days. In response to such a notice, the Appellant could have forwarded the document to his counsel, or at least discussed the matter with him, before responding. However, the Appellant simply fashioned a power of attorney, which he signed, indicating the vehicle he drove across the border when arrested was his.

15

Appellant tries to argue that because there was an ongoing investigation after his arrest, the Service must have known that the Appellant was represented by counsel and that such counsel should have at least been copied on the forfeiture notice. However, Appellant's argument is nothing more than a bare conclusory assertion that the Service somehow knew it was acting in contravention to the Appellant's rights and that its statutory notice was therefore improper. The Appellant provides no support for this position and the Court finds no support in the factual record now before it. Certainly, this argument does not demonstrate clear error.

16

On this record, then, and the whole of the facts presented in the briefs in this case, we cannot find by a "definite and firm conviction that a mistake has been committed." While the trial court could have been more complete in its factual analysis, it was not clear error to find that "the federal law enforcement officials [did not] create[ ] a situation which would likely cause the defendant to make incriminating statements." For, as the trial court stated, the Appellant was not required to respond, nor was he required to respond in such a manner that precluded him from conferring with his attorney first. Further, it is unclear why Appellant simply answered the forfeiture notice as he did, without aid of counsel, since his lawyer surely admonished him to forward any and all inquiries regarding the matter to counsel.

17

Finally, we are bolstered in rejecting the Appellant's argument on this issue since, even if there is a violation of a party's Sixth Amendment right to counsel, any such statements may rightly be used for impeachment purposes, as was done in this case. Oregon v. Hass, 420 U.S. 714, 714, 95 S.Ct. 1215, 1217, 43 L.Ed.2d 570 (1975) (citing Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, 28 L.Ed.2d).

18

Accordingly, the Court affirms the trial court's factual determination that the government did not violate the Appellant's Sixth Amendment right.

19

II. Finding that Appellant was not Entitled to a Sentence Reduction Under the "Safety Valve"

20

During the sentencing phase of the Appellant's trial, the court refused to apply the "safety valve" exception to reduce the Appellant's sentence. Appellant argues that the trial court's factual determination that he was not truthful, and therefore not within the purview of the exception, was erroneous.

A. Standard of Review

21

A district court's factual determination as regards the application of the federal sentencing guidelines is reviewed for clear error. United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir.1996) (citations omitted); United States v. Blaize, 959 F.2d 850, 851 (9th Cir.1992) (citing United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir.1990)). As above, a finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

B. Analysis

22

The Appellant sought to have his sentence reduced under 18 U.S.C. § 3553(f), also known as the "safety valve" provision. The only issue before the lower court was the fifth and final element of that provision which requires, in relevant part, that "not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan ...." 18 U.S.C. § 3553(f). The burden of proof was on the Appellant to show by a preponderance of the evidence that he met this requirement. Ajugwo, 82 F.3d at 929. In making its determination, the district court could consider information learned from other sources which indicated that the Appellant had been less than forthcoming.

23

In addressing the "truthful" requirement, the trial court found as follows:

24

The defendant was not candid and did deny that it was his vehicle. Indeed, the story changed several times as to the circumstances of the vehicle, who owned it, the circumstances under which it was being paid, the person to whom it was registered and his--the fact that he did not know who that individual was. All of which--and the subsequent affidavit after--at least mailed after the free talk, indicating that he wanted to have his own vehicle returned to him indicates that he does not qualify for the safety valve consideration....

25

This determination was based on the fact that, at the time of his arrest, Appellant gave the following conflicting explanations as to who owned the vehicle: (1) Appellant owned it; (2) Appellant did not own it, but was making monthly payments for it; (3) a relative owned it and Appellant was only borrowing it; and (4) when confronted with the name on the actual vehicle registration, Appellant claimed he did not know who such person was. Further, the trial court made its finding based on the fact that during the "free talk" with the government, the Appellant disclaimed all ownership of the vehicle. Finally, the trial court was well aware that Appellant, through his power of attorney, admitted ownership of the vehicle. This affidavit was dated before the "free talk," but mailed thereafter.

26

From this record, the trial court determined that the Appellant was not truthful. The record whole heartedly supports this conclusion. The Appellant gave several different explanations as to who owned the vehicle, beginning at his arrest and continuing through trial. The trial court's determination, then, was not only "not clearly erroneous," but in fact appears to be accurate.

27

Finally, the lower court did not, as the Appellant argues, confuse the issues of acceptance of responsibility and lack of candor. Rather, the court found that because the Appellant changed his story several times, he failed to meet the "truthfulness" requirement of the "safety valve" provision. The record clearly bears this out indicating no confusion on the issue.

28

Accordingly, the Court affirms the decision of the trial court that the Appellant was not entitled to a sentence reduction under the "safety valve."

29

AFFIRMED.

**

The Honorable William J. Rea, United States District Judge for the Central District of California, sitting by designation

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by the 9th Cir. R. 36-3