848 F.2d 199
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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,
Lawrence CHAVEZ; Robert Clarke, aka Bnd or Robert Clark;
Melaquias Sandoval; Patrick Henry Zanzucchi;
Robert Matthew Zanzucchi, Defendants-Appellants.
Nos. 86-1233, 86-1238, 86-1239, 86-1252 and 86-1253.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 15, 1987.
Decided April 27, 1988.
Before CHOY, GOODWIN and BEEZER, Circuit Judges.
Chavez, Clarke, Sandoval, P. Henry Zanzucchi ("Hank") and R. Matthew Zanzucchi ("Matt") appeal their convictions for cocaine-related crimes. The appellants were charged in a 22-count indictment along with 13 other defendants. These appellants, together with Tim Zanzucchi who was acquitted, were tried separately from the other 13 defendants. The indictment was the result of a two-year investigation of narcotics violations in northern Arizona, particularly Flagstaff. The investigation focused primarily on the activities of the Zanzucchi family.
Matt and Hank were indicted for and convicted of organizing and supervising a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (1982) (Counts 1 & 2). These counts have been disposed of in a separate opinion.
All appellants were indicted for conspiracy to possess with intent to distribute and conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1982) (Count 3). Matt, Hank and Chavez were charged with interstate travel in aid of a racketeering enterprise in violation of 18 U.S.C. Sec. 1952 and 18 U.S.C. Sec. 2 (1982) (Count 4). Chavez was charged with distributing one ounce of cocaine in violation of 18 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (1982) (Count 6). Clarke was indicted for distributing 3.04 grams of cocaine on May 1, 1985 (Count 7). Sandoval was accused of distributing 3 ounces of cocaine in the summer of 1984 (Count 13). Hank was charged with distributing 4 ounces of cocaine in May 1985 and 28.88 grams of cocaine in September 1985 (Counts 17 & 18). Matt was indicted for distributing two pounds of cocaine in November 1984, 3.42 grams of cocaine on March 13, 1985, and four ounces of cocaine in March 1985 (Counts 19, 20, 21). Clarke was charged with distributing one gram of cocaine in January 1985 (Count 22), and was acquitted on that count.
Matt was convicted on all counts but 19. Hank was found guilty on all counts but 17. Chavez was found guilty on Counts 3 and 4, but was acquitted on Count 6. Clarke was found guilty on Counts 3 and 7. Sandoval was found guilty on Counts 3 and 13.
Briefly, the evidence taken in the light most favorable to the government established the following. Matt and Hank operated Granny's Closet, a bar and restaurant, and Shakey Drake's, a bar. Both were popular places in Flagstaff, Arizona. In early 1982, Hank asked Bernard Johnson if Johnson knew of anyone interested in buying or selling cocaine. Thus began a series of transactions between Johnson and Hank and Matt. Later, Johnson began buying from Clarke. Johnson sold the cocaine primarily to Northern Arizona University students.
Hank and Mike Sanchez were friends. Chavez and Sanchez were acquainted with Sandoval. Sandoval asked Sanchez to set up a meeting between Sandoval and the Zanzucchis. Sandoval delivered substantial quantities (6-8 ounces) of cocaine to the Zanzucchis on several occasions thereafter. Soon afterward Chavez told Sanchez he could get better cocaine from a connection in California. Sanchez passed this information on to Hank.
Lopez and Garcia began purchasing cocaine from Matt. Later they also purchased cocaine from Clarke and Hank. Lopez acted as a middleman in one or more of Matt's deals. Sandoval also once delivered 3 ounces to Lopez.
Sanchez began working with the Zanzucchis. Chavez arranged for them to meet his California connection. Thereafter, Sanchez made several trips to California to purchase quantities of cocaine (3-4 ounces each time) to bring back to Arizona. Chavez went along on one or more trips at the beginning. Once Hank went with Sanchez.
Twice, in early 1984, Sanchez sold Clarke, who worked as the disc jockey at Shakey's, a half-gram of cocaine. Clarke began dealing for Hank and Matt. He was known as "the snowman."
Several other persons, including dancers at Shakey's, began purchasing cocaine from Hank, Matt or Clarke.
Marc Windham, Chris Livanos and John Livanos formed a cocaine partnership at Shakey's in November 1984. They purchased quantities of cocaine from Matt and Hank on several occasions.
Windham learned of a Florida connection and told Matt about it. Windham went to Florida, but no deal materialized. Windham's wife advised him to go to the police, which in due course he did.
Matt kept his cocaine inventory with "some woman at the courthouse." Several times, when making deals, he said he had to call her in order to get the cocaine to complete the transaction.
In March 1985, a former Northern Arizona University football player, Bo Perry, was stopped by police who advised him that in December 1984 he had sold a gram of cocaine to an undercover police officer. Perry agreed to cooperate with the police. Perry subsequently bought 3.42 grams of cocaine from Matt.
Windham, who by this time was cooperating with the FBI, made several purchases from Matt in March 1985. Karen Ashley, an undercover police officer, made several purchases from Clarke between April and July, 1985. In June or July, Bryan purchased a gram from Chavez; there had been other transactions between them.
By June 1985, Keith Richardson was deeply in debt for cocaine which had been purchased from Hank and fronted to him by Chris Livanos. Hank also convinced Richardson to deal for him in order to work off his debt. Hank convinced Richardson to sign over his mobile home as collateral on the debt. Later Hank convinced Richardson to give him a bill of sale. Richardson began purchasing from Hank and writing checks to Hank or to Granny's Closet.
The Lopezes were also using cocaine heavily and were in debt. They began dealing for Matt and then Hank. Officer Ashley twice bought cocaine from Lopez in August. In September, she bought an ounce from Lopez, who had gotten it from Hank.
Garcia once tried to get an ounce of cocaine from Lopez, but ended up buying from Chavez. Chavez said he had just bought it from a connection named "Tito."
Officer Ashley was trying to set up a purchase of a pound. Flagstaff was a small town and news traveled fast. Before the purchase could be arranged, Lopez was alerted that federal officers were in town. The Zanzucchis also had learned that warrants had been issued.
Multiple arrest and search warrants were executed on September 27, 1985. Lopez was arrested, but his wife, who had been alerted by Matt had already cleaned the Lopez drug paraphernalia.
A search warrant was executed at Granny's. The agents seized $18,000 from the safe, along with an anti-bugging device and a brown daily ledger.
Shakey Drake's was also searched. Officers found the payment book for Richardson's mobile home, inositol (which was used by all the dealers involved to cut cocaine), baggies, seals (used to package small quantities of cocaine), black and mirrored glass and scales.
In Matt's house, agents found inositol and a triple-beam scale.
In Hank's girlfriend's house, agents found a blue ledger, yellow lined papers and insurance on Richardson's mobile home.
In Hank's apartment, agents found stereo equipment and a fish tank which had been given to Hank as payment for cocaine, a trace of cocaine base, a cocaine consumer's handbook, and an ad for seals and inositol.
Hank's fingerprints and handwriting were in the blue ledger. Matt's fingerprints and handwriting were in the brown ledger. Hank also kept accounts noted on the yellow lined papers. The blue ledger showed sales of 46 ounces of cocaine worth $78,000. The brown ledger showed sales of 76 ounces of cocaine worth $153,000. A sheet from that ledger also had Sandoval's name and address.
Both Chavez and Sandoval claim that joinder was improper under Fed.R.Crim.P. 8(b) and 14. They argue that the evidence showed multiple conspiracies, not one conspiracy, thus making joinder improper under Rule 8(b). Further, they argue, the joinder was prejudicial under Rule 14 because the great weight of evidence concerned Matt, Hank and Clarke, thus creating for Chavez and Sandoval a risk of guilt by association. Clarke also argues that joinder with Matt and Hank was unduly prejudicial under Rule 14. Matt argues that his joinder with the other defendants left him unable to protect himself from attempts by the other defendants to paint him as the only guilty party, in violation of Rule 14.
A. Joinder Under Rule 8(b)
Joinder of multiple defendants under Fed.R.Crim.P. 8(b) is permitted if all of the defendants participated in the same series of acts or transactions.1 United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982). This court has repeatedly held that a conspiracy count may provide the necessary link to satisfy the requirements of Rule 8(b). Id.; United States v. Donaway, 447 F.2d 940, 943 (9th Cir.1971). The conspiracy count must be charged in good faith. United States v. Adams, 581 F.2d 193, 197 (9th Cir.), cert. denied, 439 U.S. 1006 (1978). Even if a conspiracy count alone is inadequate in a given case, the combination of the conspiracy and joint offenses involved in the substantive counts may be sufficient. United States v. Rogers, 722 F.2d 557, 561 (9th Cir.1983), cert. denied, 469 U.S. 835 (1984).
Chavez and Sandoval argue that the evidence at best showed multiple conspiracies, not a single conspiracy. In Kotteakos v. United States, 328 U.S. 750 (1946), the indictment charged one conspiracy. The Court found that the evidence showed multiple conspiracies with one person as the "hub" and the others as "spokes." Because in Kotteakos, the Court found no "rim" to enclose the spokes, there were multiple conspiracies and joinder was improper. Id. at 755. Blumenthal v. United States, 332 U.S. 539 (1947), also involved a wheel-hub conspiracy. However, in that case the Court found that the persons who formed the spokes of the wheel must have been aware of each other; thus, they must have done something in furtherance of a single conspiracy or enterprise. Id. at 556-57.
Chavez knew that Sanchez was dealing with the Zanzucchis. Chavez also knew of Sandoval, because he was helping Sanchez roof Sanchez' house when Sandoval asked Sanchez to set him up a meeting with the Zanzucchis. Thus, Chavez was aware of the participation of all the defendants but Clarke. Under Blumenthal, the joinder of Chavez was proper.
Sandoval argues that the evidence against him shows that he was head of a separate conspiracy. However, Sandoval admits that the evidence shows that he was aware of the participation of Sanchez and Lopez in the conspiracy, thus forming "part of the rim of the wheel." Further, Sandoval acknowledges that the evidence shows that he dealt with Matt and Sanchez. Although, in Sandoval's view, there is no link between himself and Hank or Chavez, the links which Sandoval admits are sufficient to show that he was part of a single conspiracy, and that joinder was proper. The law does not require that every defendant in a conspiracy know all the details or all the participants in that conspiracy. Id. at 557.
B. Prejudicial Joinder Under Rule 14
Sandoval and Chavez argue that their joinder in this action prejudiced their cases in violation of Fed.R.Crim.P. 14 because the great weight of evidence in the case was admitted against the Zanzucchis and Clarke and was unrelated to Sandoval or Chavez.2 Clarke argues that the great weight of evidence was admitted against the Zanzucchis and unrelated to him.
Matt argues that Chavez' attorney elicited inadmissible hearsay regarding an alleged "contract" that Matt had put out on Lopez, thus denying Matt a fair trial. Rule 14 motions for severance are committed to the sound discretion of the district court, and are reviewed for abuse of discretion. United States v. Lewis, 787 F.2d 1318, 1320-21 (9th Cir.), amended, 798 F.2d 1318 (9th Cir.1986); Abushi, 682 F.2d at 1296.
To obtain a reversal for misjoinder, appellants must show that the prejudice from joinder outweighed the dominant concern of judicial economy. United States v. Vaccarro, 816 F.2d 443, 449 (9th Cir.), cert. denied, 108 S.Ct. 262 (1987). Sandoval and Chavez point out that in Donaway, this court found prejudicial joinder when less than 50 pages of the 2,300 pages of testimony dealt with the defendant. 447 F.2d at 943. However, in Donaway, the court had dismissed the conspiracy count against the appellants. Dismissal of the conspiracy charge reduced the relevance of the evidence against the co-defendants as applied to the Donaway appellants. Id.
Given the conspiracy charge in the instant case, the evidence on the other counts not involving Sandoval and Chavez was relevant to the conspiracy count with which Sandoval and Chavez were charged because those counts were all overt acts in furtherance of the conspiracy. Vaccaro, 816 F.2d at 449. Clarke was also charged in the conspiracy, which similarly undermines his claim of prejudice.
Furthermore, in assessing prejudice, the "primary concern" is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to each defendant, and to follow the court's instructions. Id. at 448-49. The court in this case instructed the jury throughout trial and at the end of trial that it must consider the evidence against each defendant separately. These instructions minimized the possibility of prejudice. We note that the jury found one defendant not guilty on all charges and found four defendants not guilty on a number of individual charges.3 These acquittals provide persuasive evidence that the jury was able to compartmentalize the evidence against each defendant, and therefore indicate that the trial court did not abuse its discretion in denying the Rule 14 motions by Clarke, Chavez and Sandoval.
Matt argues that joinder prejudiced him because the other defendants used tactics unavailable to the prosecutor to paint him as the only guilty party. At one point during the examination of Lopez, the prosecutor sought to present hearsay testimony that Matt had taken a contract out on the life of Lopez. In a hearing outside the presence of the jury, the court ruled the evidence inadmissible hearsay and extremely prejudicial. However, on cross examination by Chavez' counsel, the testimony regarding the contract was elicited anyway. Matt's counsel moved for a mistrial. The court denied the motion, but struck the testimony as unresponsive and directed the jury to disregard the statement. Matt cites no authority which would support his argument that he was prejudiced. The remedial instruction was adequate. Thus, the trial court did not abuse its discretion in denying Matt's Rule 14 motion.
II. JENCKS ACT
Chavez argues that the prosecutor's failure to disclose the grand jury testimony of FBI Agent Prida until closing arguments was a willful violation of the Jencks Act and requires reversal. 18 U.S.C. Sec. 3500 (1982). Hank and Matt made similar arguments. Clarke joined in Chavez' argument. The trial court denied the motions for mistrial. The court's denial of the motion for mistrial is reviewed for abuse of discretion. United States v. Smith, 790 F.2d 789, 795 (9th Cir.1986). Implicit in the order is a finding of no prejudice to the defendants which this court will reverse only if clearly erroneous. United States v. Dupuy, 760 F.2d 1492, 1497 (9th Cir.1985).
The Jencks Act requires the government to give to the defense any statements made by a government witness (including grand jury testimony), if they relate to the subject matter of the witness' testimony. United States v. Knowles, 594 F.2d 753, 755 (9th Cir.1979). The statement must be relevant to the witness' direct testimony. 18 U.S.C. Sec. 3500(c) (1982); Goldberg v. United States, 425 U.S. 94, 105 (1976). The harmless-error doctrine applies, although it is applied strictly. Goldberg, 425 U.S. at 111 n. 21.
Prida was the case agent. He testified twice. The first time he identified two tapes of conversations between Matt and Windham. The second time was in reference to Windham's controlled buys from Matt.
The government concedes that Prida's grand jury testimony should have been disclosed to the extent that it theoretically could have been used to impeach his trial testimony with reference to the controlled buys between Matt and Windham. The government argues, and Matt does not clearly dispute, that Prida's testimony on that point was consistent. Thus, any error was harmless. The remainder of Prida's grand jury testimony was not the topic of his trial testimony and therefore need not have been disclosed.
Chavez argues that Prida's grand jury testimony was the "key piece of evidence" which would have resolved his motion to dismiss Count 6 and to strike overt act 3 of Count 3. Chavez' Jencks Act objection regarding Count 6 presents no question because Chavez was acquitted on Count 6. Chavez' argument concerning overt act 3 also fails because Prida did not testify with respect to overt act 3.
Hank argues that Prida's grand jury testimony was relevant to the element required for a continuing criminal enterprise conviction that a defendant supervised, organized, or otherwise managed five persons. Because we reverse that conviction on other grounds, we need not address this claim.
Similarly, Matt argues that a statement by Prida in his grand jury testimony about the $18,000 found in Matt's safe was Jencks material relevant to the element of obtaining substantial income which is required for a continuing criminal enterprise conviction. Because we reverse that conviction on other grounds and vacate the forfeiture order for the $18,000, we need not address this claim.
Clarke does not indicate how Prida's grand jury testimony was relevant to his case. Thus, his appeal on this point must also fail.
III. OTHER DISCOVERY ISSUES
Matt and Hank also argue that the government's failure to comply with discovery orders denied them a fair trial. They point to one instance involving I.R.S. agent Greer, and one instance involving Officer Ashley.
The court ordered disclosure of Jencks Act material 72 hours before the witness testified, of exculpatory Brady material and impeachment Brady material if also exculpatory as soon as the government became aware of the exculpatory nature of the material, and of impeaching Brady material seven days in advance of the witness' testimony. See Brady v. Maryland, 373 U.S. 83 (1963).
A. Greer's testimony.
Greer was called to testify for the purpose of showing that Matt's transfer of his Oakmont property to his father was a sham. The government failed to produce some documents from IRS files which reflected that the unpaid taxes for which the IRS had intended to seize the property were subsequently paid. These documents, however, were irrelevant to prove whether the transfer was a sham. The defendants were also granted a continuance to examine the documents before cross examination. Finally, the late payment did come into evidence, and the jury did not find that the Oakmont property must be forfeited. Thus, the failure to provide the information to the defendants could not have affected the outcome on this issue. See id. at 87; see also Vaccaro, 816 F.2d at 452. (Failure to provide grand jury testimony as to dismissed counts could not have affected outcome).
B. Officer Ashley's testimony.
Sometime before trial, Officer Ashley was transferred from the Flagstaff police department, for which she worked during the investigation of this case, to another department. In the process of moving, apparently she misplaced some of her notes and lost notes which concerned a controlled purchase on June 11, 1985. The defendants moved for mistrial. The court denied the motion, but struck Ashley's testimony about the June 11 transaction and instructed the jury to disregard it. There was also a five-day continuance during Ashley's testimony. The denial of the motion for mistrial is reviewed for abuse of discretion. See Smith, 790 F.2d at 795.
Failure to comply with the Jencks Act may result in striking the testimony. 18 U.S.C. Sec. 3500(d) (1982). That sanction was imposed with reference to Ashley's testimony about the June 11 buy. The other reports and notes were found and disclosed belatedly. The harmless error doctrine applies, although strictly. Goldberg, 425 U.S. at 111 n. 21. There was no reversible error.
The trial court expressed its displeasure at the government's several discovery violations. The court, in reference to the failure to produce Ashley's reports and notes, stated that "I'm not ready yet to say they [the government] haven't acted in good faith. But I won't take too much more." The defendants were quick to argue that the failure to produce these documents was willful and an "egregious dereliction" of duty. See Dupuy, 760 F.2d at 1497, quoting United States v. Polizzi, 500 F.2d 856, 893 (9th Cir.), cert. denied, 419 U.S. 1120 (1975). The government, however, disputes this characterization. Given the length of the trial and the number of witnesses called, we cannot say that the court erred when it refused to find that the government acted in bad faith. Further, given that the defendants had five days to consider the material before Ashley's testimony resumed (only two days less than they would have had if timely disclosed), the defendants were not prejudiced.
C. Prida's Grand Jury Testimony.
In addition to arguing that the government's failure to produce Prida's grand jury testimony was a Jencks Act violation, the defendants argue that this failure was also a Brady violation, because they claim it was exculpatory. Failure by the government to give a defendant exculpatory or impeachment evidence, however, requires reversal only when the evidence is "material in the sense that its suppression undermines confidence in the outcome of the trial." United States v. Bagley, 473 U.S. 667, 678 (1985). A "reasonable probability" is sufficient to undermine confidence in the outcome. Id. at 682, quoting Strickland v. Washington, 466 U.S. 668, 684 (1984).
As discussed above, Chavez was not prejudiced by the failure to provide Prida's testimony. Chavez argues that Prida's testimony would have exculpated him on Count 6 and overt act 3 of Count 3. Chavez, as noted, was acquitted on Count 6, and he fails to illustrate in what way Prida's testimony would have exculpated him with respect to overt act 3 of Count 3.
Nor does Clarke indicate how Prida's grand jury testimony would have exculpated him. Thus, his Brady argument must also fail.
Matt and Hank claim that Prida's testimony would have exculpated them on their criminal enterprise convictions. Because we reverse those convictions on other grounds we need not address these claims.
IV. PARTICULARITY OF THE SEARCH WARRANT
Hank argues that the search warrants issued on September 25, 1985 were overbroad and did not specify the items to be seized with sufficient particularity, thus requiring suppression. This court conducts de novo review of this issue. United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986).
Hank argues that paragraph one of the list of property to be seized was too generic. That paragraph included:
Books, records, receipts, notes, ledgers and other papers relating to the transportation, ordering, purchase, and distribution of controlled substances, in particular, cocaine, a Schedule II Narcotic Drug Controlled Substance.
In Spilotro, this court held invalid a warrant using only generic terms where more precise descriptions were possible. Id. at 964-65. The warrant in Spilotro, however, was far broader than the warrant at issue here. The only limit on the items to be seized in Spilotro was that they be evidence of a violation of any one of 13 statutes, "some of exceptional scope." Id. at 965. The court suggested, however, that most of the descriptions could have been narrowed by, at the very least, describing the criminal activities rather than simply referring to a statute. Id. at 964. In United States v. Washington, 797 F.2d 1461, 1472 (9th Cir.1986), this court found the reference to "involvement and control of prostitution activity" to be adequately narrow. In United States v. LeBron, 729 F.2d 533, 538 (8th Cir.1984) (cited with approval in Spilotro, 800 F.2d at 964), the court found the warrant insufficiently specific, but stated that a reference to "narcotic sales" or "manufacturing and distribution of drugs" would be sufficiently narrow. See also United States v. Pollock, 726 F.2d 1456, 1465-66 (9th Cir.1984) ("other narcotics paraphernalia" was accepted).
The warrant in question contains a description as specific as those approved of in Lebron and Washington. We therefore conclude that the district court correctly decided that the warrant described the items to be seized with sufficient particularity.
V. PROBABLE CAUSE FOR SEARCHING MESA RESIDENCE
Hank argues that the 33-page affidavit supporting the search warrant for nine separate places did not provide sufficient facts for the Mesa, Arizona residence he shared with his girlfriend. He argues that the information was stale and that the agent presenting the affidavit "tailored" the information.
[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules.
Illinois v. Gates, 462 U.S. 213, 232 (1983). A magistrate must make a practical decision whether, given the information in the affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238. A magistrate's determination of probable cause will not be reversed unless clearly erroneous. United States v. Estrada, 733 F.2d 683, 684 (9th Cir.), cert. denied, 469 U.S. 850 (1984).
Hank, while conceding that there was probable cause to issue a warrant for his Flagstaff apartment, contends that there was not sufficient cause to believe that Hank was using the Mesa residence as anything other than a place to reside with his girlfriend. This court, however, has recognized that it is "commonplace" for narcotics dealers to keep the narcotics where they live, where they sell from, and on their persons. United States v. Valenzuela, 596 F.2d 824, 828-29 (9th Cir.), cert. denied, 441 U.S. 965 (1979). The agent had 17 years of experience, he set out in his affidavit evidence of Hank's cocaine dealings, the fact that he resided four days a week at the Mesa residence, and the fact that the phone in that residence had been used on numerous occasions to call at least one suspected cocaine dealer. Given these factors, it was not clear error for the magistrate to conclude that there was a "fair probability" that contraband and evidence of criminal activity would be found at the Mesa residence.
Hank argues that the evidence was stale because specific dates were not included and the last phone call from the residence to the number of the suspected cocaine dealer was made several weeks prior to the filing of the affidavit. However, the warrant sought evidence of a large, ongoing criminal conspiracy, rather than evidence of one single, completed criminal sale. See United States v. Landis, 726 F.2d 540, 542 (9th Cir.) ("[t]he continuous nature of the activity diminishes the significance of the time lag ..."), cert. denied, 467 U.S. 1230 (1984). The affidavit disclosed a course of cocaine trafficking by the Zanzucchis from November 1984 until a few days before the presentation of the affidavit to the magistrate, at which time Hank was still commuting between Flagstaff and Mesa. Given this information, it was not clear error for the magistrate to conclude that contraband and evidence of criminal activity would still be found at the Mesa residence.
Finally, Hank argues that the agent who prepared the affidavit in support of the extension of the Granny's wiretap "tailored" his testimony when he prepared an affidavit in support of the Mesa search warrant. The government admits that the agent stated in the wiretap affidavit that there was no probable cause to obtain a search warrant for Granny's, the target of the wiretap, and the government admits that both warrants were submitted on the same day. However, the government contends that the wiretap affidavit had been prepared a week earlier; it hypothesizes that the agent copied the paragraph in the September wiretap affidavit from his August affidavit and failed to update it in light of changed circumstances. Further, the government contends that the agents were forced to execute the search warrant earlier than had been planned because the wiretap revealed that the Zanzucchis had been tipped off about the impending search.
Hank's argument reveals no reversible error. First, this court has stated that the sufficiency of an affidavit is limited to the information contained in the document itself. See United States v. Rubio, 727 F.2d 786, 795 (9th Cir.1983). Second, Hank is not complaining about the search of Granny's, but about the search of the Mesa residence. Because the affidavit for the wiretap did not state whether there was probable cause to search the Mesa residence, it should not affect the determination of probable cause to search there. Finally, as the district court held, the inconsistency "goes to the ultimate finding to be made by the judicial officer issuing the search warrant or wiretap--that probable cause did or did not exist. The affiant's conclusion as to probable cause is not the material consideration; that consideration is for the court."
While the government's discharge of its duties in preparation of these affidavits was not a model of care, the magistrate's conclusion that there was probable cause to search the Mesa residence was not clearly erroneous.
VI. PROBABLE CAUSE AND NECESSITY OF WIRETAPS
The court authorized a wiretap of two telephone lines at Granny's Closet and the line at Matt's Oakmont residence. Hank complains that the affidavit in support of the wiretap application did not support a finding of probable cause and that a wiretap was unnecessary.
The probable cause standard for wiretaps is the same as that for search warrants. United States v. Brown, 761 F.2d 1272, 1275 (9th Cir.1985). The court's finding of probable cause is reviewed for clear error. See Estrada, 733 F.2d at 684. The determination of necessity is reviewed for abuse of the court's discretion. Brown, 761 F.2d at 1275.
The wiretap authorization statute requires a court to find (1) that probable cause exists to believe that one of the enumerated offenses (which include the offenses associated with narcotics trafficking) is occurring, (2) that there is probable cause to believe that communications concerning the criminal activity will be obtained through the interception, (3) that probable cause exists to believe that the place from whence the communications are to be intercepted is being used in connection with the criminal activity, and (4) that "normal investigative procedures" have been unsuccessful or are unlikely to succeed. 18 U.S.C. Sec. 2518(3)(1982).
Hank protests the inclusion of statements by Source 1 and Source 2 in the affidavit, claiming that their credibility was not established, nor was their information shown to be reliable through independent and specific facts such as in Gates. However, in reading the affidavit, it is clear that most, if not all, of the allegations attributed to Sources 1 & 2 were corroborated independently by the affiant or other officers involved in the investigation. Further, the affidavit contained observations of eleven controlled buys, accounts of buys by Officer Ashley, statements of several witnesses that Matt and Hank used the phones in connection with drugs, and pen registers which indicated that Hank and Matt had used the phones in question to phone several persons who were suspected of dealing in cocaine. Thus, the finding of probable cause was not clearly erroneous.
Hank also argues that there was no necessity for the wiretaps. The facts contained in the affidavit show evidence of numerous buys and were based upon firsthand sources of the illicit drug activities. Thus, he argues that conventional investigative procedures were indeed successful, and it was unnecessary to resort to wiretaps.
The necessity requirement, however, is "not intended to relegate the use of wiretaps to that of last resort; the restriction must be interpreted 'in a practical and commonsense fashion.' " Brown, 761 F.2d at 1275 (quoting United States v. Bailey, 607 F.2d 237, 241 (9th Cir.1979), cert. denied, 445 U.S. 934 (1980)). A reading of the affidavit reveals that conventional investigative techniques had failed to produce significant admissible evidence against the Zanzucchis which would show the extent and nature of their organization. The family relationship made the organization impossible to penetrate at the highest levels. Physical surveillance had proven inadequate to confirm the purpose of meetings between the Zanzucchis and other suspected members of their organization. Pen register and telephone toll records had been similarly limited in results. Many of the calls to other members of the family--most of whom were suspected of being involved in cocaine trafficking--could be explained as innocent family calls, unless their contents could be ascertained. The nature of the community also made it possible for the Zanzucchis to detect law enforcement interest in their activities and to identify those cooperating with the law enforcement agencies. In fact, the Zanzucchis learned that search warrants had been issued two days before the execution of the warrants. The family's use of threats and violence intimidated victims and potential witnesses. A grand jury would be limited by fifth amendment privileges, and prosecutors were unwilling to grant immunity to witnesses until they could identify the kingpins of the organization.
A factual basis sufficient to show that ordinary investigation techniques are not adequate may be demonstrated by a description of the unique nature of the operation and of the previously unsuccessful investigatory efforts. United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir.1977). It is not necessary to exhaust all possible uses of ordinary techniques. Rather, the government must show only that "normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time." Id.
Given this court's statements in Spagnuolo and a reading of the affidavit, we hold that the court did not abuse its discretion in finding that a wiretap was necessary.
VII. VOUCHING FOR THE CREDIBILITY OF A WITNESS
Matt and Chavez contend that the prosecutor improperly vouched for the veracity of a witness, Richardson, in a deliberate attempt to deny them a fair trial. Richardson testified that he had pled guilty to one count of conspiracy to sell cocaine with the understanding that he would receive a two-year sentence. He added that no other promises had been made to him. Next the prosecution asked, and the witness answered as follows:
Q: Was there anything else that you were to do?
A: I was to--it was providing that my testimony was the truth, as far as I could tell it.
The court denied motions for mistrial, but struck the question and answer. The court also advised the jury that a prosecutor may not vouch for the credibility of a witness, specifying Richardson. Furthermore, the court later instructed the jury that it should consider the testimony of witnesses who had pled guilty with great caution. The denial of a motion for mistrial is reviewed for abuse of discretion. Smith, 790 F.2d at 795.
Vouching occurs when the prosecutor places the prestige of the government behind the witness or when he indicates that information not presented to the jury supports the witness' testimony. United States v. Dadanian, 818 F.2d 1443, 1445 (9th Cir.1987); United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980), cert. denied, 452 U.S. 942 (1981).
This case is alleged to be an example of the first type of vouching. However, this court has allowed this type of vouching when the witness' credibility has been attacked. See, e.g., United States v. Brooklier, 685 F.2d 1208, 1218-19 (9th Cir.1982) (plea agreement properly admitted to rebut defense references to witness as "a perjurer, paid informant, and murderer who escaped the death penalty by cooperating with the FBI"), cert. denied, 459 U.S. 1206 (1983); United States v. Tham, 665 F.2d 855, 862 (9th Cir.1981) (response to defense argument that plea bargain required witness "not to testify truthfully, but to testify favorably to the government"), cert. denied, 456 U.S. 944 (1982). Here, the statement was given in anticipation of an attack on Richardson's credibility.
Even in cases in which the vouching was not a response to an attack on a witness' credibility, this court has found the impropriety harmless when the judge has instructed the jury to view with caution the testimony of witnesses who have made deals with the government. See, e.g., United States v. Shaw, 829 F.2d 714, 717-18 (9th Cir.1987). That same instruction was given here. Further, the Shaw court suggested that it would have been better had the court given an instruction to the effect that the government had no way of assuring the truthfulness of the witness and that the plea bargain was not evidence that the testimony was truthful. Id. (citing Brooklier, 685 F.2d at 1218-19). That instruction was also given here.
Given the impending attack on Richardson's credibility and the curative and cautionary instructions given to the jury, we find no abuse of discretion in denying the motion for mistrial based on this instance of vouching.4
VIII. LIMITATION OF THE CROSS-EXAMINATION OF LOPEZ
Matt and Hank claim that the trial court erred in limiting the cross-examination of Lopez when Lopez was not permitted to testify that a criminal enterprise conviction carries a mandatory minimum sentence of ten years. They contend this testimony was necessary to show that Lopez reached a favorable plea agreement with the government and therefore his bias. Limitation on the scope of cross-examination is reviewed for abuse of discretion. United States v. Cutler, 676 F.2d 1245, 1248-49 (9th Cir.1982).
In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the trial court had prohibited the defendant from questioning a government witness about the dismissal of a charge against him--being drunk on a highway--after he had agreed to speak with the prosecutor about the murder of which defendant was accused. Id. at 676. The Delaware Supreme Court found that this was error, and the Court agreed, although the Court remanded to consider whether the error was harmless. Id. at 684.
In Van Arsdall, however, the Court noted that the trial court had prohibited all inquiry into the witness' bias. The right of defendants to cross-examine a witness is not absolute. Id. at 679; Dadanian, 818 F.2d at 1449. As in Dadanian, the defendants in this case elicited the facts of Lopez' cooperation, his avoidance of penalties of more than twenty years imprisonment, his prior convictions and the details of cocaine trafficking. As Dadanian noted, once these facts exposing the witness' potential bias are elicited, "[t]he amount of jail time [the witness] faced is at best marginally relevant." Dadanian, 818 F.2d at 1449.
As the trial court recognized, the mandatory nature of a continuing criminal enterprise sentence would not have provided significant additional evidence of bias so much as impermissibly indicating to the jury the sentence that the Zanzucchis would receive if convicted. This was not an abuse of discretion.
IX. RELEVANCE AND PREJUDICE OF OTHER EVIDENCE
Relevant evidence is excluded only if its probative value is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. Evidence of other crimes is admissible when relevant unless the evidence proves only the defendant's criminal disposition. Fed.R.Evid. 404(b). The decision to admit such evidence is committed to the sound discretion of the trial court. United States v. Bailleaux, 685 F.2d 1105, 1112 (9th Cir.1982) (Rule 403); United States v. McKoy, 771 F.2d 1207, 1214 (9th Cir.1985) (Rule 404).
A. Lopez' testimony concerning the burglary of his house.
During trial, Lopez testified that his house was burglarized. Matt and Hank argue that the only purpose of the evidence was to suggest that one of the defendants had done the burglary. They argue it was inadmissible evidence of other crimes in violation of Rule 404(b). However, the record shows that the testimony was introduced to explain why the government had given Lopez substantial expense money about which the defendants had cross-examined Lopez. It was relevant. Moreover, as Matt and Hank concede, there was no suggestion that Matt, Hank or any other defendant was responsible for the burglary. Thus, it cannot be said that this testimony substantially prejudiced Matt or Hank. The court did not abuse its discretion in admitting the evidence.
B. IRS Agent Greer's testimony regarding Matt's tax problems.
Agent Greer testified concerning enforcement proceedings which had been instituted against Matt for failure to pay taxes. Greer testified that Matt had quitclaimed three properties to his father before the IRS could obtain a forfeiture. One of these properties was the Oakmont house.
The amount of property subject to forfeiture is an element of the offense. Fed.R.Crim.P. 7(c)(2) & 31(e). The quitclaim deeds were probative of Matt's interest and whether that interest was sufficient to warrant forfeiture. The circumstances of the transfer were relevant to show that the transfer was a sham which should not affect forfeiture. Because the jury found that the property should not be forfeited, it is difficult to see how Matt was prejudiced by this evidence. Thus, we cannot say that the trial court abused its discretion in admitting this evidence.
Hank joins this argument, but he fails to explain how evidence of Matt's problems with the IRS prejudiced him. Again, without a showing of prejudice, we cannot say that the trial court abused its discretion in admitting the evidence. This kind of check-list advocacy merely detracts from points that might have some merit.
C. The failure to bifurcate forfeiture and guilt.
Matt argues that the court should have bifurcated the issue of forfeiture from the issue of guilt, citing United States v. Sandini, 816 F.2d 869 (3d Cir.1987). In that case, the Third Circuit noted that bifurcation was not constitutionally mandated but, in a bifurcated proceeding, a defendant could exercise his right not to testify in the guilt-determining phase and still protect his property from forfeiture by testifying in the forfeiture phase. Id. at 873-74.
Sandini did not suggest that evidence relevant to forfeiture should be excluded from the guilt-determination phase. Rather, the Sandini court suggested only that allowing the defendant to testify about his property after the jury returns a guilty verdict, would be a "reasonable accommodation." After the defendant testifies about his property, the court suggested, a special verdict could be returned pursuant to Fed.R.Crim.P. 31(e). Id.
Matt, however, sought only to keep out the evidence regarding his Oakmont property. He never suggested that he wanted to testify about the property. Nor does he argue this on appeal. Thus, Sandini is wholly inapposite. Even if Sandini applied, any error would be harmless because the jury did not forfeit the property at issue. Again, this kind of nonsense just runs up attorney fees and makes unnecessary work for the court.
X. RIGHT TO ATTEND A CONFERENCE ON JURY INSTRUCTIONS
Sandoval argues that the district court's refusal to allow him to attend a discussion of jury instructions in the trial judge's chambers constituted error under Fed.R.Crim.P. 43 and the sixth amendment. Clarke joins this argument. The argument fails, in light of this court's recent holding in United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir.1987) ("a hearing outside the presence of the jury concerning the selection of jury instructions is a 'conference or argument upon a question of law' " under Fed.R.Crim.P. 43(c)(3) which does not require the defendant's presence). Accord United States v. Graves, 669 F.2d 964, 972 (5th Cir.1982). Thus, Sandoval and Clarke were not deprived of any rights under Rule 43. Moreover, insofar as the right to be present at trial as guaranteed by Rule 43 is more far-reaching than the right of a defendant to attend his trial as guaranteed by the constitution, Sandoval and Clarke were not deprived of any constitutional rights. See Sherman, 821 F.2d at 1339; United States v. Brown, 571 F.2d 980, 986 (6th Cir.1978).
XI. PROSECUTORIAL MISCONDUCT
Hank and Matt argue that several instances of prosecutorial misconduct, although perhaps not enough to prejudice them by themselves, when considered cumulatively denied them a fair trial. They further attack the Office for the United States Attorney for the District of Arizona, and attempt to show a pattern of misconduct which justifies a new trial.
Matt and Hank point to several instances in which the U.S. Attorney's Office in the District of Arizona has been chastised for prosecutorial misconduct. This court has reversed two convictions from the District of Arizona in the last twenty years because of improper argument. Roberts, 618 F.2d 530; United States v. Segna, 555 F.2d 226 (9th Cir.1977). In two other cases, this court has chastised a prosecutor from the District of Arizona. United States v. McClintock, 748 F.2d 1278 (9th Cir.1984) (discovery abuses), cert. denied, 474 U.S. 822 (1985); United States v. Berry, 627 F.2d 193 (9th Cir.1980) (improper argument), cert. denied, 449 U.S. 1113 (1981). Finally, in United States v. Cox, 633 F.2d 871, 875 n. 1 (9th Cir.1980), cert. denied, 454 U.S. 844 (1981), this court expressed concern about "an inordinate number of appeals involving prosecutorial misconduct by the office," although it found no misconduct in that case.
Among reported decisions there have been only 29 cases charging prosecutorial misconduct out of 20,000 criminal cases brought by this Office in the last two decades. There have been four reported decisions finding misconduct, and none since 1980. While any misconduct on the part of prosecutor is cause for concern, especially when it is so egregious as to require reversal, we cannot say that these cases establish a pattern of misconduct which would require special scrutiny of the Northern Arizona United States Attorney's Office. Diligent advocacy is one thing, groundless attacks upon opposing counsel is another. Mistakes in this area destroy credibility.
Matt and Hank make several more specific charges which we have addressed above. Matt and Hank argue that although each act of governmental misconduct standing alone may be insufficient to require sanctions, their cumulative effect may require the court to exercise its supervisory powers. Berry, 627 F.2d at 200-01. We have reversed on the basis of some of the errors, and we find that no further sanctions are warranted.
While the government clearly made mistakes, these mistakes did not rise to the level of misconduct. This case was very long, and errors should be expected. A defendant is entitled to a fair trial, not a perfect one. Van Arsdall, 475 U.S. at 681. None of the errors was shown to be intentional and, except for the instances in which we found reversible error, see United States v. Chavez, Slip op. --- (9th Cir. March ----, 1988), none prejudiced the defendants.
XII. OTHER POINTS OF ERROR
Matt and Hank make other contentions of error. They argue that the evidence was insufficient to convict them of the criminal enterprise counts. Hank argues that the court erred in its instructions to the jury on the criminal enterprise count by using the word "manager" instead of "other position of management." Because we reversed those convictions on other grounds, we need not address these issues in our published opinion in this case.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
Rule 8(b) states:
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
Fed.R.Crim.P. 14 provides in relevant part that:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
Tim Zanzucchi was acquitted on all charges. Chavez was found not guilty on Count 6. Clarke was found not guilty on Count 22. Matt was acquitted on Count 19. Hank was acquitted on Count 17. Sandoval, however, was convicted on both counts against him
Chavez argues that a defendant is more likely to be prejudiced by prosecutorial misconduct when the government has a weak case against him. See United States v. Hibler, 463 F.2d 455, 458-59, 462 (9th Cir.1972). Since, as he argues, the case against him is weak, the prosecutor's vouching is more likely to have prejudiced his case. However, as Chavez admits, Richardson's testimony did not directly implicate Chavez. This undermines his Hibler argument