UNITED STATES of America, Plaintiff-Appellee, v. Juan Ramon MATTA-BALLESTEROS, Defendant-Appellant.
No. 91-50336.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 4, 1993. Submission Vacated April 7, 1994. Resubmitted June 6, 1994. Decided Dec. 1, 1995.
71 F.3d 754
AFFIRMED in part; REVERSED in part and REMANDED.
NOONAN, Circuit Judge, concurring:
I concur in the opinion and judgment of the court except that I do not believe it appropriate in Part II B1 for the court to speculate as to the existence of a genuine issue as to the appearance of bias and as to the facts Stivers might conceivably prove; I do not believe that Stivers has shown that Rodefer‘s report was the result of any decision by the Board to harass him; in Part IV A2 n. 9, the court has mistakenly expanded Sablan, 856 F.2d at 1327 by prefacing the quote from Sablan with the words “if prior to the assertion of the plaintiff‘s claim;” and under Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992) the plaintiffs in the plural are not entitled to any counsel fees because only Stivers achieved success.
Manuel A. Medrano, John L. Carlton, Assistant United States Attorneys; Los Angeles, CA, and Sean Connelly, Joseph D. Wilson, United States Department of Justice; Washington, DC, for plaintiff-appellee.
Before: BROWNING, POOLE, and JOHN T. NOONAN, Jr., Circuit Judges.
Concurrence by Judge NOONAN.
POOLE, Circuit Judge:
Appellant Juan Ramon Matta-Ballesteros appeals his convictions following jury trial on the following charges: (1) committing a crime of violence in aid of racketeering in violation of
I
Rafael Caro-Quintero, Ernesto Fonseca-Carrillo, Miguel Angel Felix-Gallardo, Ruben Zuno-Arce, Manuel Ibarra, Miguel Aldana and Javier Barba-Hernandez, all Mexican nationals, jointly operated a marijuana and cocaine trafficking enterprise centered in Guadalajara, Mexico.1 The enterprise operated marijuana ranches in various Mexican locations.
Matta-Ballesteros, a Honduran, became involved with the enterprise in 1982 or 1983, and attended meetings where drug trafficking plans were discussed and decided. Felix-Gallardo and Matta-Ballesteros imported large amounts of cocaine into the United States on a number of occasions. At one point during their cocaine trafficking, Matta-Ballesteros and Felix-Gallardo grossed over $5 million a week from this enterprise.
During 1984, the Drug Enforcement Administration (DEA) made several significant seizures of marijuana and cocaine which resulted in substantial losses for the enterprise. At a gathering held after the baptism of Barba-Hernandez’ daughter in Guadalajara
At a meeting held prior to the wedding of Barba-Hernandez’ brother in Guadalajara in October 1984, members of the enterprise, including Matta-Ballesteros, met and discussed the DEA seizures as well as a police report file covering one of the major marijuana seizures at Zacatecas, Mexico. The DEA agent responsible for the seizures was again discussed. The enterprise held yet another meeting after the wedding, in which Zuno-Arce suggested that the DEA agent should be “picked up” when his identity was discovered.
By December 1984, Fonseca-Carrillo had identified the responsible DEA agent as Special Agent Enrique Camarena. Fonseca-Carrillo said that he would “take care of” Camarena. In February 1985, Zuno-Arce, Fonseca-Carrillo, Caro-Quintero and Barba-Hernandez met in Guadalajara and once again discussed picking up the DEA agent, finding out how much he knew, and learning who was cooperating with him.
Camarena disappeared on February 7, 1985 after leaving the DEA office in Guadalajara. Out-of-court statements, audiotapes and physical evidence, including hair, carpet fibers, sheet fabric and rope strands, showed that Camarena had been taken to a house at 881 Lope del Vega in Guadalajara, where he was held, tortured, interrogated and finally killed.
Matta-Ballesteros was seen checking out of a hotel in Guadalajara on February 12, 1985, apparently after learning he was under surveillance. Hairs consistent with Matta-Ballesteros‘s were found in the guest house and bedroom at Lope del Vega, suggesting his presence there sometime after the house had been recarpeted in January 1985.
On April 29, 1985, in Cartagena, Colombia, Matta-Ballesteros was detained by Colombian police on charges unrelated to Camarena‘s kidnapping and murder. The Colombian police took him to Bogata where DEA agents interviewed him. He denied participating in Camarena‘s murder but admitted having some knowledge of it, which he refused to share because he feared he would be killed if he did. The United States unsuccessfully sought Matta-Ballesteros‘s extradition on an unrelated criminal complaint filed in the Southern District of New York and failed to follow through on extradition efforts with regard to a previously dismissed, but newly revived fourteen-year-old charge for escape from federal authorities. Matta-Ballesteros returned to Honduras.
Near dawn on April 5, 1988, Matta-Ballesteros was abducted from his home in Tegucigulpa, Honduras. Aided by Honduran Special Troops, or “Cobras,” four United States Marshals bound his hands, put a black hood over his head, thrust him on the floor of a car operated by a United States Marshal, and drove him to a United States Air Force Base in Honduras. The Marshals then moved him to the United States, via the Dominican Republic. Within twenty-four hours of his armed abduction Matta-Ballesteros was a prisoner in the federal penitentiary at Marion, Illinois. The government does not dispute that he was forcibly abducted from his home in Honduras.
The government does dispute his account of how he was treated by his abductors. Matta-Ballesteros claims that while being transported bound and hooded to the United States Air Force Base he was beaten and burned with a stun gun at the direction of the Marshals. He claims that during his flight he was once again beaten and tortured by a stun gun applied to various parts of his body, including his feet and genitals.
Matta-Ballesteros unsuccessfully petitioned for a writ of habeas corpus. Matta-Ballesteros v. Henman, 896 F.2d 255 (7th Cir.1990), cert. denied, 498 U.S. 878, 111 S.Ct. 209, 112 L.Ed.2d 169 (1990). Subsequently, he was convicted in the Northern District of Florida for various narcotics charges and escape. These convictions were upheld on appeal. United States v. Matta, 937 F.2d 567 (11th Cir.1991).
Following that conviction, Matta-Ballesteros was brought before the Central District of California to face charges that he participated in the conspiracy to kidnap and kill
II
Matta-Ballesteros argues that because of his abduction from Honduras and his being beaten and interrogated during his trip to the United States, the district court was precluded from exercising jurisdiction over him. Specifically, Matta-Ballesteros argues that (a) the extradition treaties between Honduras and the United States prohibit his prosecution, and (b) the shocking nature of his abduction and mistreatment requires dismissal. We review this jurisdictional challenge de novo. United States v. Walczak, 783 F.2d 852, 854 (9th Cir.1986).2
A
Matta-Ballesteros argues that the extradition treaties between Honduras and the United States preclude his prosecution because of the recent Supreme Court ruling that treaties are self-executing and bestow rights upon individuals. United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). However, Alvarez-Machain primarily holds that where the terms of an extradition treaty do not specifically prohibit the forcible abduction of foreign nationals, the treaty does not divest federal courts of jurisdiction over the foreign national. Id. at 664-66, 112 S.Ct. at 2193-95. Alvarez-Machain therefore dictates that, in the absence of express prohibitory terms, a treaty‘s self-executing nature is illusory.
The treaties between the United States and Honduras contain preservations of rights similar to those which Alvarez-Machain held did not sufficiently specify extradition as the only way in which one country may gain custody of a foreign national for purposes of prosecution. Compare 504 U.S. at 665-66, 112 S.Ct. at 2194-95 with 1909 Honduras-United States Extradition Treaty (37 Stat. 1616; 45 Stat. 2489), Art. VIII; 1933 Inter-Americas Extradition Treaty (49 Stat. 3111), Arts. II-IV, XXI. Nothing in the treaties between the United States and Honduras authorizes dismissal of the indictment against Matta-Ballesteros.
B
The Supreme Court has long held that the manner by which a defendant is brought to trial does not affect the government‘s ability to try him. Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952).
Though we may be deeply concerned by the actions of our government, it is clear in light of recent Supreme Court precedent that the circumstances surrounding Matta-
In Toscanino, the defendant alleged that United States agents abducted him from Uruguay, pistol-whipped, bound, blindfolded, brutally tortured, and interrogated him for seventeen days, and finally drugged and brought him to the United States by airplane, all with the knowledge of an Assistant United States Attorney. Id. at 269-70. That court held that if Toscanino‘s allegations were true, his indictment was subject to dismissal based on the federal court‘s supervisory powers over the administration of criminal justice first outlined by the Supreme Court in McNabb v. United States, 318 U.S. 332, 340-41, 63 S.Ct. 608, 612-13, 87 L.Ed. 819 (1943). In holding that the supervisory powers of the court could require dismissal, Toscanino relied in part on Supreme Court decisions addressing other types of outrageous governmental conduct, including Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)3 and United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642–43, 36 L.Ed.2d 366 (1973).4 Toscanino, 500 F.2d at 274-76.
This court has held, however, that we have inherent supervisory powers to order dismissal of prosecutions for only three legitimate reasons: (1) to implement a remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and (3) to deter future illegal conduct. United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir.). See also United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983); United States v. Gatto, 763 F.2d 1040, 1044 (9th Cir.1985). We review dismissal based on the exercise of supervisory powers for an abuse of discretion. United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991).
The circumstances surrounding Matta-Ballesteros‘s abduction, while disturbing to us and conduct we seek in no way to condone, meet none of these criteria. It is particularly troublesome to us that the alleged acts were conducted by United States Marshals, officials who purportedly act in our best interest. Although they are members of the Executive Branch, Marshals serve a very special purpose within the judiciary, because their “primary role and mission [is] to provide for the security and to obey, execute, and enforce, all orders of the United States District Courts, the United States Courts of Appeals, and the Court of International Trade.”
The only way we could exercise our supervisory powers in this particular case is if the defendant could demonstrate governmental misconduct “of the most shocking and outrageous kind,” so as to warrant dismissal. United States v. Valot, 625 F.2d 308, 310 (9th Cir.1980). See also United States v. Fielding, 645 F.2d 719, 723 (9th Cir.1981) and Leiterman v. Rushen, 704 F.2d 442, 443 (9th Cir.1983). Matta-Ballesteros has not. His alleged treatment, even if taken as true, does not meet this rigorous standard, and the acts alleged were not nearly as egregious as those committed in Toscanino.
The district court conducted a limited evidentiary hearing, concluding that Matta-Ballesteros failed to make “‘a strong showing of grossly cruel and unusual barbarities inflicted upon him by persons who can be characterized as paid agents of the United States.’ United States v. Lovato, 520 F.2d 1270, 1271 (9th Cir.) (per curiam), cert. denied, 423 U.S. 985 [96 S.Ct. 392, 46 L.Ed.2d 302] (1975). Defendant‘s allegations of mistreatment, even if taken as true, do not constitute such barbarism as to warrant dismissal of the indictment under the caselaw.” [Excerpts of Record 60] The district court‘s findings are reviewed for clear error. Fielding, 645 F.2d at 724.
During the evidentiary hearing, the court heard testimony from Matta-Ballesteros about the purported torture, and he submitted pictures taken upon his arrival at the federal prison as well as a report on stun guns and the declarations of several eyewitnesses who declared he was shocked with the stun guns. The court also considered testimony or declarations from a psychologist and two physicians who examined Matta-Ballesteros, Dr. Donald Valles and Dr. John Van der Decker, who indicated that the cause of his injuries was inconclusive. Additionally, the court considered the declarations and testimony of Juan Morales and Roberto Escobar, United States Marshals who were present at Matta-Ballesteros‘s capture in Honduras, and who transported him from the Dominican Republic to Marion. They contradicted his testimony, and alleged that he was not tortured and that no stun gun was used on him.
While we may have a suspicion of Matta-Ballesteros‘s inhumane treatment, and the evidence reasonably could support a finding that he was tortured, it could also support the conclusion of the district court. Because the district court‘s account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse it even though we may be convinced that, sitting as the trier of fact, we would have weighed the evidence differently. Employees Int‘l Union v. Fair Political Practices, 955 F.2d 1312, 1317 n. 7 (9th Cir.) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)), cert. denied, 505 U.S. 1230, 112 S.Ct. 3056, 120 L.Ed.2d 922 (1992). We are therefore bound by the district court‘s findings, and hold that its determination regarding the alleged torture was not clearly erroneous.
Thus, much as we may want to dismiss this case through an exercise of our supervisory
III
Matta-Ballesteros argues that the evidence against him was insufficient to support his conviction. In considering a challenge to the sufficiency of the evidence, we decide, after viewing the evidence in the light most favorable to the government, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Aichele, 941 F.2d 761 (9th Cir.1991).
The essential elements of a conspiracy are (1) an agreement to accomplish an illegal objective, (2) the commission of an overt act in furtherance of the conspiracy, and (3) the requisite intent necessary to commit the underlying offense. United States v. Thomas, 887 F.2d 1341, 1347 (9th Cir.1989). An agreement may be inferred from the defendant‘s acts pursuant to the scheme, or other circumstantial evidence, and a defendant‘s proximity to the scene of illicit activity may support an inference when viewed in context with other evidence. Id. at 1347-48. Once the existence of a conspiracy is shown, the government need only prove a slight connection between the defendant and the conspiracy. Aichele, 941 F.2d at 763-64. A defendant‘s knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and from evidence of the codefendants’ actions. Acts which seem otherwise innocent, when viewed in the context of the surrounding circumstances, may justify an inference of complicity. Id.; see also United States v. Sanchez-Mata, 925 F.2d 1166, 1168 (9th Cir.1991).
The evidence showed that Matta-Ballesteros was a member of the Guadalajara cartel and that he participated in some of the meetings with other members of the cartel where Camarena‘s kidnapping was planned.7 The evidence also showed members of the cartel abducted, tortured and murdered Camarena. The testimony of Hector Cervantes-Santos, which the jury believed and which is not inherently incredible, tied Matta-Ballesteros specifically to the crime. Thus, the evidence was sufficient to show that Matta-Ballesteros was involved in a conspiracy targeted at Camarena. Furthermore, because a conspirator is liable for all foreseeable substantive offenses committed in furtherance of the conspiracy, Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946), there was also sufficient evidence to support his conviction on the substantive charges.8
IV
Matta-Ballesteros argues that the district court erred in not granting him a new trial because the jurors knew about his prior convictions during the deliberations on his charges. Where extraneous materials are presented to the jury, the defendant will receive a new trial if we find a reasonable possibility that the material could have affected the verdict. United States v. Maree, 934 F.2d 196, 201 (9th Cir.1991) (citing United States v. Madrid, 842 F.2d 1090, 1093-94 (9th Cir.), cert. denied, 488 U.S. 912, 109 S.Ct. 269, 102 L.Ed.2d 256, 257 (1988)). We review the district court‘s findings as to historical facts relating to the issue of jury misconduct for clear error. United States v. Shirley, 884 F.2d 1130, 1132 (9th Cir.1989).
The district court denied Matta-Ballesteros‘s motion. See United States v. Caro-Quintero, 769 F.Supp. 1564 (C.D.Cal.1991). The court held that the single juror who testified that the jury had access to extraneous information during its deliberation on the charges against Matta-Ballesteros was not credible, based on the contradiction between his testimony during the in camera examination,9 his declaration, and his testimony at the evidentiary hearing. We review the trial court‘s ruling on the credibility of a witness for clear error. United States v. Clawson, 831 F.2d 909, 914 (9th Cir.1987), cert. denied, 488 U.S. 923, 109 S.Ct. 303, 102 L.Ed.2d 323 (1988). Furthermore, “when a trial judge‘s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1984).
This case is no exception. The single juror‘s testimony contradicted the testimony of other jurors as well as his own prior testimony. The juror‘s testimony also was vague as to exactly when he learned of Matta-Ballesteros‘s prior convictions and the substance of what he learned about them before a verdict was reached. This testimony provides no basis for finding that the jury received extraneous information. Therefore, the district court‘s finding that the jury did not have access to extraneous information is not clearly erroneous.
V
Matta-Ballesteros argues that the district court erred in (1) denying his motion to exclude hair comparison evidence as untimely, and (2) admitting expert testimony regarding hair comparison. We review both of these rulings for an abuse of discretion. United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir.1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 978 (1989); United States v. Christophe, 833 F.2d 1296 (9th Cir.1987).
The motion cut-off date in this case was set by the district court pursuant to
Furthermore,
VI
Matta-Ballesteros challenges the district court‘s exclusion of the evidence that he argues requires reversal of his conviction.
A
Matta-Ballesteros argues that the district court erred in excluding as inadmissible hearsay a report prepared by a psychologist who met with Matta-Ballesteros at the Marion prison, and a presentence report prepared by a probation officer. Matta-Ballesteros argues that these documents support his contention that he is illiterate and therefore could not have been seen reading the police reports of the Zacatecas drug seizure as the government‘s main witness, Hector Cervantes-Santos, Barba-Hernandez’ former employee, testified. We review the district court‘s exclusion of evidence under the hearsay rule for an abuse of discretion. United States v. George, 960 F.2d 97, 99-100 (9th Cir.1992).
The district court excluded the psychologist‘s report because it determined that Matta-Ballesteros‘s statement regarding his illiteracy was not made for purposes of medical diagnosis or treatment. The court‘s ruling refers to
The statement in the psychologist‘s report had nothing to do with Matta-Ballesteros‘s diagnosis or treatment. Indeed, Matta-Ballesteros was ordered to see the prison psychologist and did not even believe that he had any reason to see the psychologist. Matta-Ballesteros thus had no special incentive to be truthful. See 4 J. Weinstein & M. Berger, Weinstein‘s Evidence, § 803(4)[02] (1992). Therefore, the district court did not abuse its discretion in excluding the psychologist‘s report under
The hearsay statement in the presentence report is not admissible to show that Matta-Ballesteros may be illiterate. “No firmly rooted exception to the hearsay rule can possibly apply to the Presentence Report.” United States v. Fortier, 911 F.2d 100, 104 (8th Cir.1990), overruled on different grounds, United States v. Wise, 976 F.2d 393 (8th Cir.1992), cert. denied, 507 U.S. 989, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993). The presentence report is not admissible at trial to prove any of the hearsay contained therein.
B
Matta-Ballesteros argues that the district court abused its discretion in excluding authenticated records from the four Guadalajara municipalities regarding the nonexistence of both the marriage of Jorge Barba-Hernandez and the birth of Yuremi Barba-Hernandez, and in excluding Jorge Barba-Hernandez’ Guadalajara death certificate. Matta-Ballesteros argues that these records prove facts inconsistent with Cervantes-Santos‘s testimony that Matta-Ballesteros had attended meetings on the occasion of Jorge Barba-Hernandez’ wedding and Yuremi Barba-Hernandez’ birth.
However, Matta-Ballesteros cannot establish the absence of public records under
VII
Matta-Ballesteros argues that the district court erred in admitting audiotape recordings of Camarena‘s torture and interrogation at Lope del Vega because (1) there was an inadequate showing of authenticity and chain of custody, and (2) the tapes and transcripts were unduly prejudicial under
Matta-Ballesteros incorrectly asserts that the district court failed to comply with the requirements for admitting tape recordings into evidence set forth in United States v. McMillan, 508 F.2d 101, 104 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975).10 The Eighth Circuit has said that “when the facts demonstrate that the recording was found in a defendant‘s possession, it should not be subject to the same requirements we apply when a government agent or informant initiates a conversation knowing it is to be recorded.... [U]nder such circumstances mechanical or wooden application of the McMillan requirements is [not] necessary.” United States v. O‘Connell, 841 F.2d 1408, 1420 (8th Cir.1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989).
The audiotapes were obtained from one of Matta-Ballesteros‘s codefendants. Under such circumstances, we have held that tapes are sufficiently authenticated under
The district court also did not abuse its discretion despite the defects in chain of custody. The prosecution must introduce sufficient proof so that a reasonable juror could find that tapes are in substantially the same condition as when they were seized, and may admit the tapes if there is a reasonable probability the tapes have not been changed in important respects. United States v. Harrington, 923 F.2d 1371 (9th Cir.), cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991) (citing Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960)). Furthermore, a defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced. United States v. Robinson, 967 F.2d 287, 292 (9th Cir.1992) (citing United States v. Candoli, 870 F.2d 496, 509 (9th Cir.1989)). The evidence presented by the prosecution is sufficient to meet this burden, and there is arguably no defect in the chain of custody since there is evidence tracing the tapes from Matta-Ballesteros‘s codefendant‘s possession to trial.
The probative value of the tapes was not outweighed by their prejudicial nature. The tapes were submitted as evidence not only to show what was said but also to rebut the defendants’ assertion that Camarena‘s injuries could have occurred after his death, and to show the intent and motive of Camarena‘s kidnappers. These legitimate purposes, along with the district court‘s limiting instruction, show that the court did not abuse its discretion in determining that the tapes were not unduly prejudicial despite their gruesome content. We give “wide latitude to the trial judge in determining the admissibility of evidence because he is in the best position to assess the impact and effect of evidence based upon what he perceives from the live proceedings of the trial, while we can review only a cold record.” United States v. Ford, 632 F.2d 1354, 1377 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981). The district court properly admitted the tapes.
VIII
Matta-Ballesteros argues that the district court erred in evaluating the effect of pretrial identification procedures and in determining that Cervantes-Santos‘s in-court identification was not impermissibly tainted. We review the constitutionality of pretrial identification procedures de novo. United States v. Love, 746 F.2d 477, 478 (9th Cir.1984); see also United States v. Nash, 946 F.2d 679, 681 (9th Cir.1991). To determine whether an identification procedure is so impermissibly tainted as to give rise to a substantial likelihood of mistaken identification and thereby a violation of due process, we review the totality of the circumstances. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).
Cervantes-Santos had an opportunity to observe Matta-Ballesteros at the two meetings and over approximately a one day period in October 1984. In January 1990, Cervantes-Santos was shown a collection of 97 photographs of various suspects, including Matta-Ballesteros. Prior to testifying, Cervantes-Santos was shown photographs of Matta-Ballesteros and other Camarena defendants. However, Cervantes-Santos was never told that any person in any photograph was Matta-Ballesteros.
The pretrial procedure was not impermissibly suggestive, and therefore did not violate due process. See United States v. Bagley, 772 F.2d 482 (9th Cir.1985), cert. denied, 475 U.S. 1023, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986). There is no record in this case that Cervantes-Santos was told or led to believe that any person in any of the pictures that he was shown prior to his in-court identification was Matta-Ballesteros. While Matta-Ballesteros‘s picture was not shown among a more conventional photo array, where similar looking individuals or people who are not suspects are also shown, there is no basis for concluding that the procedure here was impermissibly suggestive.
In any event, the totality of the circumstances suggests that the in-court identification was reliable. Id. The circumstances to be considered are (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the defendant; (4) the level of certainty demonstrated by the witness at confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972). Cervantes-Santos had a great deal more time to view Matta-Ballesteros than many witnesses have to view a defendant, and spent much of that time in the same room with him. Cervantes-Santos was also able to
IX
Matta-Ballesteros argues that the district court erred in quashing his subpoena requesting discovery on the United States government‘s alleged authorization of the racketeering enterprise alleged in the indictment pursuant to
Matta-Ballesteros and other defendants attempted to assert a defense of public authority. See
The court‘s determination that there was no evidence of a connection between the defendants’ activities and the government, and that the subpoena was not likely to lead to the discovery of relevant evidence, was not clearly erroneous. There was no showing that any relationship between Felix-Gallardo, the CIA, and the Nicaraguan Contras amounted to United States government approval of the narcotics enterprise alleged in the indictment. Indeed, the evidence at trial concerning the DEA‘s aggressive enforcement of the United States’ laws against narcotics trafficking showed exactly the opposite.12 A defendant is not entitled to government documents relating to alleged CIA involvement in his criminal activity where no sufficient showing of potential relevance has been made under
X
Matta-Ballesteros argues that the district court erred in denying his motion for severance and that joinder in this case was improper and prejudicial under
The gist of Matta-Ballesteros‘s argument is that he was joined and tried along with counts charging only his codefendants, whom he contends were engaged in an altogether different racketeering enterprise based on
These arguments are without merit. The codefendants’ charges bore a relationship to one another. Because all of the defendants, including Matta-Ballesteros, were charged with conspiring to commit and committing violent acts in furtherance of drug enterprises having similar memberships and objectives, Matta-Ballesteros was not prejudiced by joinder. “[T]he term ‘transactions’ has a flexible meaning” and there can be a “logical relationship between the transactions greater than the mere factual similarity of events.” United States v. Felix-Gutierrez, 940 F.2d 1200, 1208 (9th Cir.1991), cert. denied, 508 U.S. 906, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993) (citing Ford, 632 F.2d at 1371-72). Additionally, the fact that more evidence was introduced against his codefendants is insufficient to show that joinder was improper. Polizzi, 801 F.2d at 1554.
Furthermore, there was no prejudice from the joinder because the jury was able to compartmentalize the evidence on the various counts against each defendant. See Felix-Gutierrez, 940 F.2d at 1210. The district court instructed the jury several times during trial that evidence was not admitted against one or more codefendants, and gave a general limiting instruction to the jury before deliberations. These instructions militate against Matta-Ballesteros‘s prejudice claim. “Judicial economy justifies reliance on the jury to follow the instructions of the court that segregate the evidence and limit the applicability of the evidence to each defendant.” United States v. Vaccaro, 816 F.2d 443, 448 (9th Cir.), cert. denied, 484 U.S. 928, 108 S.Ct. 295, 98 L.Ed.2d 255 (1987). The district court did not abuse its discretion in trying Matta-Ballesteros as he was charged.
XI
Matta-Ballesteros argues that the district court erred in instructing the jury regarding his liability under
There is no merit to Matta-Ballesteros‘s argument. Count Four of the indictment charged that Matta-Ballesteros “did aid, abet, counsel, induce, procure, cause and otherwise willfully participate” in a violation of
Matta-Ballesteros also argues that, due to the instruction, there is no way of determining whether he was properly sentenced. This issue is of no moment. Matta-Ballesteros‘s contention that he would be subject to a lesser sentence if the jury convicted him of conspiracy under
None of the alleged errors committed by the district court afford Matta-Ballesteros any relief. The judgment of the district court is therefore AFFIRMED.
NOONAN, Circuit Judge, concurring:
This case has been pending in this court for nearly two years. The long delay in decision does not reflect inattention or negligence but the great uncertainty the court has experienced in dealing with the situation where our jurisdiction was brought about by the kidnapping of the defendant from Honduras, a kidnapping performed by United States Marshals.
What This Case Is Not. This case does not involve the kidnapping by a private citizen of a defendant residing in a foreign country and wanted for an offense against the statute of a particular state of the United States and the subsequent placing of the kidnapped person on trial in the state‘s court. Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886).
This case does not involve the kidnapping of a defendant from one state of the United States by police officers of another one of the states, and his removal for trial to the officers’ state. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952).
This case does not involve the removal of the head of state of a foreign country by the military forces of the United States, acting at the direction of the President as Commander-in-Chief in an action found to be “military war,” and the subsequent federal trial of the person removed. United States v. Noriega, 746 F.Supp. 1506, 1537 (S.D.Fla.1990).
This case does not turn on the alleged violation of a treaty between the United States and the foreign country from which the defendant was removed to undergo trial in a federal court. United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992).
This case does not turn on an alleged violation of international customary law. United States v. Alvarez-Machain, 971 F.2d 310 (9th Cir.1992).
This case does not turn on a protest by the sovereign of the country from which the defendant was abducted for trial in federal court; for there was no such protest. Matta-Ballesteros v. Henman, 896 F.2d 255, 259-260 (7th Cir.1990).
This case does not turn on the Fourth Amendment rights of the abducted defendant. Id. at 262.
This case does not turn on the due process rights of the abducted defendant as in United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), a case qualified by United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975).
This case is not to be decided by stray dicta from the above cases; for what a court does not have before it a court does not authoritatively address. Emanations and intimations of the views of the opinion writer no doubt can be gathered from the dicta. They are not the holding of the court. They
What The Case Is About. This case begins with the kidnapping at dawn, April 5, 1988, of Matta from his home in Tegucigulpa, Honduras. According to the affidavit of Juan J. Donato Morales, a United States Marshal, he and three other members of the United States Marshals Service were near Matta‘s residence. At about 6:00 a.m., six or seven Honduran officers grabbed Matta, wrestled him to the ground, and brought him to the car driven by Marshal Morales. The Honduran officers handcuffed Matta, put a hood over his head, and thrust him on the floor of the rear part of the car. Matta at this point was still struggling to escape. In the back seat were one Honduran officer and one United States Marshal; in front were another Honduran officer and Marshal Morales. Morales drove the car to an air base in Honduras. From there Matta was transported by air to the Dominican Republic. According to the testimony of United States Marshal Roberto Escobar, he was alerted by the Marshals’ Service that Matta had been apprehended. He proceeded to the airport in the Dominican Republic with three other members of the Marshals’ Service, met the plane from Honduras, took Matta into custody, and thereafter flew with him to United States territory. Within twenty-four hours of his armed abduction Matta was in the federal penitentiary at Marion, Illinois. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 (7th Cir.1990).
That this act of kidnapping occurred is not disputed by the government. There is dispute as to how Matta was treated by his kidnappers and that treatment is not considered further here. Kidnapping in itself is a violent attack upon a human person—a sudden invasion of personal security, a brutal deprivation of personal liberty. Kidnapping in itself is a cruel act, and the cruelty is magnified when the victim‘s home is the place where the violent assault upon his liberty is made. Kidnapping committed in a foreign country becomes an offense against federal law when the victim is transported by the kidnappers into the United States. United States v. Garcia, 854 F.2d 340 (9th Cir.1988). The kidnapping continues as long as the victim is not released by the abductors. Id. at 343.
At the birth of our republic we submitted to the “opinions of mankind” and “a candid world” our reasons why Great Britain had become destructive of the ends for which government was necessary. Among our list of complaints was that Americans were “taken Captive on the high seas” and forcibly conscripted, and that others were transported “beyond Seas to be tried for pretended offenses.” Declaration of Independence in 1 The Founder‘s Constitution (eds. Philip B. Kurland & Ralph Lerner) at 9-10.
If confirmation were wanted of the common view that humankind has of kidnapping it is furnished by Article 9 of the Universal Declaration of Human Rights which affirms that no one “shall be subjected to arbitrary arrest, detention or exile.” G.A.Res. 217A(III), 3(1), U.N. GAOR Resolutions at 71, U.N.Doc. A/810 (1948). United Nations Security Council Resolution 579 (1985) lumps “acts of abduction” with “acts of hostage-taking” as “manifestations of international terrorism” and “[c]ondemns unequivocally all acts of hostage-taking and abduction.” S.C.Res. 579 (1985), U.N. SCOR, 40th Year, Resolutions and Decisions at 24, U.N.Doc. S/INF/41 (1986).
The motive of the kidnappers—here no doubt well-meaning in their officiousness—does not qualify the violence of their conduct nor its impact on the person whom they kidnap. That the abductors were law enforcement officers of the United States, rather than some fanatic band, doubles the horror of their activity. If agents of the mightiest power on earth are unrestrained from kidnapping by legal authority—or rather, in obedience to higher authority in the Executive Department, see themselves constrained to kidnap—the freedom of individuals throughout the world is at the mercy of a decision made by an official of the United States Department of Justice.
It is true that Israel abducted Adolf Eichmann to stand trial in Israel. Even that case with its extraordinary features met with the condemnation of the Security Council of the United Nations. S.C.Res. 138 (1960), 15
We are then confronted with a kidnapping, and we as judges are asked to be part of the kidnapping. We are asked to participate in two ways. First, the acts of the United States Marshals were directed to bringing Matta within the jurisdiction of the courts of the United States so that he might be tried for federal crimes and in particular for the crime of which he stands convicted in the Central District of California. The acts of the Marshals were not personal acts of revenge. Their purpose was to assure Matta‘s presence in the federal courts. Without the participation of the federal courts the kidnapping was purposeless. The federal courts are inextricably tied to the kidnapping because federal trial was the reason for abducting him.
If federal agents had boarded a foreign ship on the high seas and in an act of piracy removed Matta from the ship to bring him to federal trial in Los Angeles, we would not have wanted a federal judge to be a party to the piracy by conducting the trial. No more do we want federal judges to be parties to kidnapping, to be cooperators and collaborators in the cruel violence by standing ready to receive the kidnappers as they turn over their prey to their intended recipients. In the Noriega case, where the military character of Noriega‘s removal made judicial review impracticable, Judge Hoeveler wisely observed that otherwise the court would not be “helpless in the face of inhumane conduct shocking to the conscience.” United States v. Noriega, 746 F.Supp. 1506, 1536 (S.D.Fla. 1990). He invoked the famous words of Justice Brandeis, which, uttered in dissent, have had a power that few majority opinions have achieved. They still speak eloquently here:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (dissent), overruled by Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).
This court has inherent supervisory powers to dismiss prosecutions in order to deter illegal conduct. See United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983). The “illegality” deterred by exercise of our supervisory power need not be related to a constitutional or statutory violation.
[T]he scope of our reviewing power over convictions brought here from the federal courts is not confined to ascertainment of Constitutional validity. Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence. Such standards are not satisfied merely by observance of those minimal historic safeguards for securing trial by reason which are summarized as “due process of law” and below which we reach what is really trial by force.
McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943). In
The cases on which the majority relies do not address the exercise of our supervisory powers. United States v. Valot, 625 F.2d 308 (9th Cir.1980) dealt with an alleged abduction by DEA agents and spoke in the due process terms of Toscanino. Id. at 308-309. In United States v. Fielding, 645 F.2d 719 (9th Cir.1981) there was “no showing whatsoever that the United States participated in any of that conduct [the alleged torture and kidnapping in Peru].” Id. at 724. Leiterman v. Rushen, 704 F.2d 442 (9th Cir.1983) is even further off the mark, applying Toscanino due process criteria to the conduct of local police officers. Toscanino itself did not involve the conduct of United States Marshals, but a member of the police in Montevideo, Uruguay, allegedly paid by the United States. United States v. Toscanino, 500 F.2d at 269. No precedent stands in the way of our use of our supervisory powers here.
We must, of course, exercise these powers over our business, not someone else‘s. United States v. Simpson, 927 F.2d 1088, 1091 (9th Cir.1991). We must exercise it for a recognized purpose—here, to deter future illegal conduct by the marshals. Id. The United States Marshals service is “a bureau within the Department of Justice under the authority and direction of the Attorney General.”
A decision of another federal court has broken the confinement caused by the abduction. After he was brought involuntarily to the United States, Matta was tried, convicted, and sentenced for various drug offenses; his conviction was affirmed in 1991. United States v. Matta, 937 F.2d 567 (11th Cir.1991). Matta‘s continued presence in the Central District of California is the result of that conviction.
At the time of this earlier conviction the United States was not a party to the Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment or Punishment, ratified in 1990, 136 Cong.Rec. S17491 (Oct. 27, 1990) and operative thirty days after its deposit by the President with the United Nations on October 21, 1994. Multilateral Treaties Deposited With The Secretary-General, UN Doc. No. 571 Leg/SER.E/13, IV.9 (1995). The relevance of the Treaty has not been argued in this court. The federal courts in the Eleventh Circuit were not asked to exercise their supervisory authority over the United States Marshals by dismissing the indictment; so this argument was waived. Matta was lawfully tried, convicted and imprisoned. He stands before us not as the victim of an abduction (which he once was) but as a lawfully-held prisoner. Accordingly, we need not dismiss the case.
POOLE
CIRCUIT JUDGE
Notes
Later Supreme Court cases illustrate that the Toscanino court was not prescient. The Supreme Court has consistently reaffirmed the Ker-Frisbie doctrine, most recently in Alvarez-Machain. Additionally, the Court has held that a defendant‘s body is not a suppressible fruit, and the illegality of a defendant‘s detention cannot deprive the government of the opportunity to prove his guilt. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975); United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980). Thus, the court should only consider dismissing the indictment based upon its supervisory powers.