United States v. Juan Rodrigo Gamez-Orduno, Jose Martinez-Carra, Jesus Martinez-Villa

oc the law change in (2) intervening an remand (3) on evidence

curred; (4) changed different; other

substantially in (5) exist; manifest or

circumstances Unit result. would otherwise

justice 1111, 1114 Cuddy, 147 v.

ed States only . contest Cir.1998) Lummi Muckle- factor, arguing

the second change intervening constituted shoot law. III-A, Judge in Section

As discussed did order summary judgment

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violate Thus, Boldt. Judge before record her discre- not abuse did Rothstein

Judge case. of the the law applying

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We are de of Juan Strait either the

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accustomed however, we area, geography did intend Boldt Judge conclude Judge affirm We Inlet. Admiralty include part, of dismissal order

Rothstein’s part. init

reverse RE- AND PART IN

AFFIRMED PART. IN

VERSED America, STATES

UNITED

Plaintiff-Appellee, GAMEZ-ORDUÑO, Jose Rodrigo

Juan

Martinez-Carra, Martinez- Jesus Defendants-Appellants.

Villa, 99-10445, 99-10443, 99-10048.

Nos. Appeals, Court States

Ninth Circuit. 6, 2000 July Submitted

Argued 14, 2000 Dec.

Filed Arizona, Tucson, Bowman, A.

Leslie Gamez-Ordufio; En- defendant-appellant Arizona, for Gonzales, Nogales, R. rique Martinez-Villa; Hec- defendant-appellant Arizona, for de- Tucson, Figueroa, M. tor Martinezr-Carra. fendant-appellant Miskell, Assistant L. Robert Arizona, Tucson, Attorney, States plaintiff-appellee. THOMAS, and NOONAN,

Before: BERZON, Judges. Circuit BERZON; Partial Judge Opinion by Judge Partial Dissent Concurrence NOONAN OVERVIEW Judge: BERZON, Circuit near encounter an arose This case between border Arizona-Mexico Patrol Border several appellants three arrest, con- appellants’ leading agents, marijuana traf- sentencing for viction offenses. other ficking and Patrol Border February of along seven with appellants, found agents pounds men, approximately other a trail- handguns, three marijuana, and Following their Arivaea, Arizona. near er indict- returned jury arrest, grand others appellants charging with intent possess conspiracy with distribute marijuana1 possession alleged ernment’s breach of an immunity intent to distribute marijuana.2 The in- agreement governing the free talk. Final- dictment also charged appellant Martinez- ly, Gamez-Orduño appeals the district Villa with being a possession felon in of a court’s calculation for sentencing purposes firearm3 and with using and carrying a of the quantity marijuana attributable to during firearm relation to a drug him. We reverse the district ruling court’s trafficking crime.4 on the suppression motion and the Gamez-

Several later, months the government Orduño sentencing calculation, affirm the filed informations asserting remaining district court rulings, and re- were subject to punishment enhanced on mand.

the drug charges due to prior drug convic- later, tions. Still grand the jury returned BACKGROUND a superseding against indictment appel- lants, charges adding against appellants On the morning of February 22, 1998, Martinez-Carra and Gamez-Orduño alleg- Border agents Patrol found the tracks of a ing use and carrying of a firearm during a pack of horses heading northward near the drug trafficking crime and being felons in Mexican border. Following tracks, the the possession firearms, of against and all ap- agents two discovered locations where the pellants for illegal re-entry deporta- after horses’ riders had dismounted, eaten and tion.5 After appellants entered conditional rested. At one of the rest stops, guilty pleas, the district court sentenced agents found a torn scrap vinyl. The each appellant to concurrent terms of im- agents eventually followed the tracks di- prisonment for 120 months on each count rectly to the front door of a trailer, where eight and years of supervised release they found fresh horse droppings on the thereafter. patio and a piece of vinyl tarp that All three appellants appeal now the dis- matched the scrap they had discovered on trict court’s denial of their motions to sup- the trail. agents The arrived at the trailer press evidence discovered in what they at around 2:00 p.m. allege was an illegal search of the trailer. The agents heard voices Gamez-Orduño coming and from Martinez-Carra ap- the trailer. peal Through denial of their screen door motions to dismiss agent saw a man superseding trying to indictment hide. Con- based on a claim of cerned about agents’ prosecutorial safety, vindictiveness, agent one opened grounding their the unlatched door. vindictiveness Inside claim on trailer, both the agents superseding men, indictment found ten and the one of earlier whom was sentence-enhancing to trying informations. hide shower, Gamez-Orduño discovered Martinez-Carra also Martinez-Villa sleeping on appeal the a fully-loaded district court’s denial handgun. of their The Border Pa- motion to dismiss the trol agents indictment or found other- 399.26 kilograms (ap- wise sanction proximately because the 880 pounds) of marijuana, and government failed to disclose two report handguns wrapped in some clothes. proffer a session (the with Martinez-Villa addition to guns and drugs, talk”), “free while Martinez-Villa appeals agents seized two horses and a mule from the district court’s denial of his motion to outside the trailer and a heavy-duty scale dismiss the indictment based on the gov- All inside.6 ten of the men found § 1. 21 U.S.C. 846. 5. 8 § U.S.C. 1326. 841(a)(1). 2. 21 § U.S.C. ' 6. Some of background these facts are taken from the

3. Report ("PSR”). Presentence § U.S.C. 922(g). On remand, course, the district court is not 4. 924(c). § 18 U.S.C. recitation, bound but is free to make then, he was when look- her versation on eventually indicted trailer livestock; that one of her for some transport to related charges prior of his extent was the conversation marijuana. Carrillo; and Ann Mary relationship with the November testimony at Appellants’ relationship at all with prior no he had to how hearing as suppression at stayed Martinez-Villa Carrillo. Oscar On as follows: was the trailer they got February night ranch the the Carrillo February I tired testified, “because 22, he ar- other men Martinez-Carra, along with stay able to me a break gave not party are who the trailer rested there.” awith desert lost this appeal, “Os- A named marijuana. man “load” about Mar- questions government’s them, transported them car” located smuggling enter- role in tinez-Villa’s truck, pickup bed lying down suppression revealed it was prise, key from used Oscar in Arivaca. a ranch previously undis- based hearing, were igni- the truck’s also had key ring that free talk summarizing the report closed located gate unlock the it key on to Martinez-Villa. session with ranch, drove the entrance after report disclosed court ordered then trailer. He the gate to the through camera, that the noting it in reviewing keyawith the to trailer the door unlocked govern- the directly contradicted report the inside ring, key reached same from the Mary neither position that previous ment’s light on flipped the looking, without trailer in- son was nor her Oscar Ann Carrillo in. smugglers switch, the and invited any or had trafficking drug the volved in Ann Mary by one owned trailer and that appellants, to the connection mother, to appeared and Carrillo, Oscar’s in the trailer. trespassers on Oscar, who lived home. be someone’s found, de- report Indeed, court smug- provided the property, his mother’s involvement significant Carrillos’ tailed the place bags and food, sleeping with glers ranch. their drug operation in the food, he get to left Before Oscar sleep. to nondis- a material report court deemed not and trailer stay in the men to told the Maryland, 373 Brady v. violating closure spent All then ten at all.” “go to out 215 1194, L.Ed.2d 83, 83 S.Ct. be- in the trailer. night to (1963), required and allow authority to had that Oscar lieved nature of the serious Because disclose it. of Oscar’s because him into trailer the dis- appellants, against charges of in- his and premises familiarity grant not to reluctantly decided trict court trailer. stay in the to the men to struction disclosure ordering beyond remedy any Mar- and Initially, both Gamez-Orduño ap- hearing permit to continuing the they were testified tinez-Villa to consider opportunity pellants Tucson, where ride to awaiting trailer respond. how to determine report On cross-exami- work. to find they hoped however, admitted nation, Martinez-Villa DISCUSSION house his approached had been that he to Mexico, and offered $500 Nogales, in Challenge Search “Standing” to I. marijuana of group guide a lost find and Appellants] [All Seizure relat- He then to the trailer. backpackers determine did The district horseback, found Mexico on he left ed that of search the warrantless whether them guided backpackers, the Fourth under reasonable trailer was Mary Ann Carrillo trailer; knew that he ap- it found because Amendment at a formerly worked he had because Amendment Fourth lacked pellants con- had one and had ranch neighboring suppress. motion developed ord evidentiary rec- findings on the based factual is, 91, 96, 98, 1684, “standing”—that appellants’ own U.S. 110 S.Ct. 109 L.Ed.2d (1990); 4, rights Fourth Amendment were not violat- 85 96 n. id. at (“We challenge conclusion, conclude, Appellants go ed. need no further than to that, do, overnight guests maintaining as as we over- Olson’s status as an Carrillos, expecta- sufficient night guest enough had a is alone to show' that privacy expectation the trailer be entitled he had an privacy protection. recognize to Fourth We society prepared Amendment home that reasonable.”) added). agree. (emphasis as As the explained: Court in Olson A. Fourth Protection Amendment Of To overnight guest hold that an has a Overnight Guests legitimate expectation privacy in his merely recognizes host’s home ev- pro

The Fourth Amendment eryday expectations privacy that we right people vides that to be “[t]he all Staying overnight share. in anoth- houses, persons, secure papers, er’s longstanding home is a cus- social effects, against unreasonable searches tom that recognized serves functions seizures, shall not violated” U.S. Const, by society.... valuable think that [W]e amend. IV. Because the Fourth society recognizes houseguest has protects “people, places,” Amendment a legitimate expectation privacy his States, Katz see v. United 389 U.S. host’s home. (1967), L.Ed.2d 576 person claiming a Fourth Amendment vio overnight guest’s From the perspec- must, matter, tive, lation initial demon he seeks shelter home another’s “legitimate strate a expectation privacy” precisely it provides because him with place the thing searched or seized. privacy, place a pos- where he and his 143, Illinois, 128, v. Rakas 439 U.S. 99 by anyone sessions will not disturbed (1978). 421, S.Ct. 58 L.Ed.2d A per 387 but his host and those his host allows expectation privacy son’s of is deemed le inside. if gitimate society it is that pre “one is 98-99, Id. at 110 S.Ct. 1684. ” Katz, pared to recognize as ‘reasonable.’ presence An individual whose on 361, (Harlan, J., 389 U.S. at 507 88 S.Ct. another’s is premises purely in commercial Rakas, concurring); see also 439 at U.S. nature, hand, legiti on the other has no 143-44, 99 (concluding S.Ct. 421 that an mate of expectation privacy in that loca expectation if it is reasonable derives from Carter, tion. See v. Minnesota U.S. 525 “a source outside of the Fourth Amend 83, 90, 469, 119 S.Ct. 142 L.Ed.2d 373 ment, either to concepts reference of (1998). Carter, the Court held that two or personal property real law or to under drug dealers not legitimate did have a standings recognized permit-, that are expectation privacy of in an apartment, by society”).7

ted already up drug manufacturing, set for Whether or he can not show that occupied indices the defendants only for two- (such residency keys premises of to the only pur and-one-half hours and for the ability or the go to come and pose resale, admit or of packaging drugs for for others), exclude overnight guest an in they an “paid” use of which an the lessee other’s home has a expectation eighth 86, reasonable of an ounce of cocaine. Id. at 91, privacy purposes of Fourth Amend 119 they S.Ct. Because 469. Olson, standing. transaction,” Minnesota v. present 495 a solely “for business Although 7. courts analytically standing continue discuss whether not one of in the Article legitimate expecta criminal defendant has purely III sense but rather one of Fourth privacy tion ing,” under rubric of “stand Rakas, Amendment doctrine. See at 439 U.S. see, Armenta, e.g., United States v. 69 138-40, 99 S.Ct. 421. 304, (9th Cir.1995), F.3d 308 the issue is

459 469, Moreover, testified, appellants 90, defendants television. 119 id. at S.Ct. not expectation dispute, does that legitimate had no that ease slept night appellants trailer the The contrasted situa privacy. Court in Jones v. the Border Patrol’s arrival. We preceding that the defendant tion with 259, States, 257, therefore affirm district court’s factual U.S. 80 S.Ct. 362 Armenta, 725, (1960), slept findings. United States v. who “had 4 L.Ed.2d 697 ” (9th Cir.1995) ‘maybe night,’ (holding and 69 F.3d 307 apartment] [in the findings that district court’s factual on legitimate expectation have a who did 469; 89-90, standing Fourth Amendment are re- S.Ct. issue privacy. error). (“Thus only an viewable clear see also id. may in a claim the overnight guest home appellants its Despite Amendment, Fourth but

protection of the stayed overnight in the trailer with the merely present with the con one who is permission, Carrillos’ district court saw not.”).8 may sent the householder situation as similar to that of appellants’ “purely Carter Court concluded that Stressing the defendants Carter. en commercial nature the transaction appellants came the trailer in the course here, relatively period short gaged in activities, the drug smuggling of their dis premises, and lack of of time on the they were there “for trict court held de any previous connection between [the is, to purpose, commercial rest purely householder,” and the made fendants] drugs, transport bringing in the course of akin to that of defendants’ situation more drugs,” could establish and thus merely “legitimately someone who was standing. This hold Fourth Amendment overnight premises” than that of novo, ing, reviewable de see United States 93, 119 469. guest. Id. Sarkisian, 197 Cir. 1999),was erroneous. Application B. Carter and appellants The record shows that to this Case Olson trailer, guests overnight then, pivotal question, food, for rest were there whether the situation of the Carter, “simply ... to do business.” overnight was to that of the case akin Resting 469. over S.Ct. or, instead, as the district guests in Olson made without night a home available held, Fourth Amend analogous court for is charge occupant an identifiable by to that of the “standing” purposes true activity. And this is no commercial district court defendants Carter. The guests away are why the matter appellants] that “each of were [the found shelter, no matter home and in need backpackers staying the residence for relationship between host whether the of at permission and rest” with the food or a guests is a social business Carrillo, Mary possibly least Oscar one. fully sup is Ann as well. That conclusion holding to the con- Ga- The district court’s ported by example, evidence. For court’s trary turned on the that Oscar Carrillo mez-Orduño testified ... guests, social “weren’t provided appellants sleeping bags appellants acquaintances of the owners was friends or equipped and that the trailer food stove, water, and reflected the under- premises,” and a refrigerator, with a standing premises have guest for in order to overnight 8. status is sufficient While LaFave, Wayne R. Search protection, may it not be another.” Amendment Fourth (cit- 11.3, (3d recently Supp.2000) ed. leading § at 15 necessary. has As a treatise Seizure concurrence, commented, Kennedy's Justice opinions Justice in Carter the several judgment, Breyer's up majority concurrence [that] add to a "different ... Ginsburg, position Stevens and actually the dissent of Justices that a social embraced Souter). overnight guest guest would not have that, Carter, standing under pur- a social innately private personal nature of the ac- pose an overnight stay is a necessary tivities which one overnight seeks shel- precondition of forming legitimate expec- ter: tation of privacy. But Carter sug- neither From overnight guest’s perspective, gests that the Fourth Amendment’s re- he seeks shelter in pre- another’s home gard for overnight guests depends on cisely because it provides pri- him with whether the purely visit is social in nature vacy, place where he posses- and his nor undermines Olson’s explicit holding sions will not be by anyone disturbed that “status as an overnight guest is alone but his host and those his host allows enough to show guest] [the had an inside. We are at our most vulnerable expectation privacy in the home that when we are asleep, because we cannot society prepared is recognize as reason- monitor our safety own security Olson, able.” 96-97, 495 U.S. at 110 of our belongings. It is for this reason 1684. that, although may we spend day all public places, when we sleep cannot Indeed, there is why no reason the na- ture, our own home we seek out pri- another of the relationship between host and place vate sleep, whether it be a hotel guest should the overnight affect guest’s room or the home of a Society friend. expectation of privacy. A businessman expects at least as much privacy in these stays who at the home of a business ac- places inas a telephone booth—a tempo- quaintance when he comes to town for no rarily private place whose momentary other purpose than to conclude a deal is occupant’s expectations of freedom from still an overnight guest, not engaged in intrusion are recognized as reason- “purely commercial” activity while at the .... able home, and has an expectation of privacy (citation omitted) while Id. there. added). (emphasis id. 110 S.Ct. 1684 (noting that stay “we in others’ homes The trailer the appellants stayed in was when we travel to strange city for busi- up set as a dwelling and, place, the district ness or pleasure”). found, the appellants using were it for their private, personal needs, not, as in The dissent accepts this proposition but Carter, as a location for packaging drugs maintains that this case is different from or otherwise engaging in their criminal hypothesized one because the relation- activity. Whether ship between the appellants and the Car- likely to continue their smuggling rillos had activities no “suggestion friendly hospi- day, next or tality.” Post, stay admonished to at' 466. doubtftil, It inside detection, to avoid is as though, irrelevant as that Rob Olson’s hosts in Minne- whether Rob Olson likely sota v. “leave Olson were motivated “friendly town bus” the day next arrest, to avoid hospitality” they when allowed him to or was “found ... hiding closet,” in a spend night the on the floor of their home presumably also to avoid detection. after he drove get-away the car in an 93, 94, U.S. at 110 S.Ct. 1684. In both armed robbery, a fact they which appar- eases, pertinent the fact for purposes ently knew, and then lied to the police judging the privacy expectation is ap- that about whether Olson was in the house or pellants were engaging in the necessary, not. 93-94, 1, 495 U.S. at 97 n. 110 S.Ct. intimate activities of daily life stay- 1684. while Nor does suggest Olson that ing in a dwelling provided by relevant someone focus is on the motivation of the else, activities ordinarily conducted in se- hosts in an permitting overnight stay. cure, enclosed spaces Rather, and which Olson, our soci- understandably, views the ety regards private. expectation “[f|rom of privacy question overnight guest’s perspective,” 495 U.S. at Moreover, say to the appellants that 99, 1684, and focuses trailer, “[i]n the it, as outside they were merchandise,” Alleged Brady [Gamez- II. Violation carriers of forbidden they Martinez-Carra] only expectation that Orduño that “[t]he if they to be arrested have had was could ar- and Martinez-Carra 466, discovered,” not at is to post, were government’s failure to dis- gue that the staying distinguish them from individuals government’s of the free report close house trailers— their own houses—or talk before session with Martinez-Villa several-day in a engaged for rest while due suppression hearing violated their case, activity. In criminal either course of process rights. Before Martinez-Villa protect Fourth Amendment does suppression hearing, testified at the arrest, whether his the criminal government argued, had in its briefs dwelling provided by own home or orally suppression hearing, ap- at that another, govern- does assure that the but pellants lacked Fourth Amendment stand- limi- comply must with constitutional trespassers were because coming private living into a tations before with no connection to the Carrillos. trailer space. government’s The cross-examination of Martinez-Villa, however, led counsel contrary, argues to the government suspect—cor- appellants the other two 304, Armenta, 69 F.3d at maintaining had unre- rectly—that government an Ar holding. the district court’s supports source of information about vealed menia, however, suggest that ac does during before and smugglers’ activities guests may in a residence overnight tual stay Upon inquiry, the trailer. at expectation privacy. a reasonable lack court discovered this was district Armenia, merely In we affirmed a case, ordered the indeed case had not appellant con- report, to turn over the free talk fact over that he was in established hearing give appel- tinued the in order to host, guest noting of an identifiable night report deter- lants time to absorb vastly [was] “situation that the defendant’s respond. how mine ‘overnight guests’ from that of different pri legitimate expectations do have evi who of material suppression 308; accused, Id. at vacy their hosts’ homes.” helpful to the whether dence (determining n. 3 see also id. suppress, trial on a violates motion that Armenta’s co- was no evidence proba there if reasonable process due there owned, rented, authori that, or had conspirator dis bility had the evidence been ty premises or to invite Amien- closed, to use the would proceeding the result of the so). contrast, Brady, ta do In different. 373 U.S. have been 215; had an identifi appellants 1194, found that here 10 L.Ed.2d Unit host, Carillo, fact, Barton, that “in able Oscar v. 995 F.2d 933-34 ed States (9th Cir.1993). trailer] [appellants] process [in Such a due viola permission cured, however, by of the may Carrillos.” belated evidence, dis long so disclosure of short, findings district court’s “ ‘at time when disclosure occurs closure that, law, matter of fact establish as a ” the accused.’ Unit would be value to overnight guests of Oscar Span, 970 F.2d ed States Carillo, and, such, legitimate ex- as had a Cir.1992) Gor States v. (quoting United privacy in trailer while pectation of Cir.1988)). (9th 1397, don, 1403 844 F.2d food and We staying there “for rest.” recognized that court ruling district court’s district reverse the therefore in that it report talk was material free suppress on the motion to and remand so they appellants’ assertion appellants may supported contest the Border as of present guests the trailer had been at and seizure on substantive Patrol’s search Carillo, dis- to thereby served grounds. Oscar Fourth Amendment 462 trial, trespass-based of governments plea proceed offer a to

prove the By withholding the standing prosecutor vindictively filed argument. informations making representa- factual report alleging they subject while to in- it, government tions inconsistent creased prior sentences because of their by [appel- process “depriving violated due drug claim Appellants convictions. also a de- through deliberate liberty lants] prosecutor vindictively sought ... jury ception [which is] of court indictment superseding adding additional rudimentary with the de- inconsistent charges response to their motions to of a justice obtaining mands of as is the rejected court suppress. ap- by Brady, like result intimidation.” 373 pellants’ vindictiveness claims.9 86, 83 S.Ct. 1194. The district U.S. held properly therefore prosecutor pro A violates due prosecutor’s was “a viola- conduct serious charges cess when he seeks additional process due appellants’ rights.

tion” solely punish exercising defendant for court, statutory finding, right. constitutional See despite The district 357, 363, appellants’ request Hayes, v. 434 denied sanction Bordenkircher U.S. (1978). 663, the in- by dismissing either 54 604 98 L.Ed.2d Vin count, conspiracy dictment are, however, or the dictiveness claims evaluated so action ... [inappropriate “drastic an differently charges when the additional are did, under circumstances.” The court pretrial during proceedings, particu added however, continuance, grant two-month larly when plea negotiations ongoing, are affording appellants ample prepare time to they than when are added or after during suppression hearing. anew for the Goodwin, trial. v. See United States 457 368, 380-81, 2485, 73 continuance, Because of the disclosure (1982); L.Ed.2d 74 United States v. Galle ultimately “occurred a time when it 1164, (9th gos-Curiel, 681 F.2d Cir. Span, value to accused.” [was] 1982). Although “prosecutorial conduct Indeed, F.2d 583. the district court’s that would not have occurred but for hos findings essentially adopted of fact free tility or a report’s punitive talk animus version events in towards the determin- appellants’ defendant because he has his surrounding pres- the facts exercised specific legal rights” violates process ence trailer. Under these circum- due stances, government’s pretrial setting could in the it actions does at other stages, 1169, not have Gallegos-Curiel, affected outcome of the hear- 681 F.2d at ing, appellants’ process rights pretrial plea due context of negotiations adequately protected. See United presumed will not simply vindictiveness (9th Woodley, States v. 9 F.3d charge fact that a more severe Cir.1993). affirm on, from, We therefore the district followed or even resulted sanction, court’s further refusal dis- right. defendant’s exercise of a id. at conspira- missal the indictment or of the 1168. count,

cy government’s conduct. pre The reason that we do [All III. Prosecutorial Vindictiveness sume pretrial plea vindictiveness Appellants] bargaining situation flows from courts’ Appellants they sanctioning plea claim that after negotiations indicat- as a means reject government’s ed that would resolving Supreme criminal cases. The novo, error, 9. The standard of review a claim of vindic such a de clear claim: or abuse of prosecution open question tive is still appellants’ discretion. Because claims of expressly Ninth open This court left Circuit. has prosecutorial any fail vindictiveness under (as recently as June see United standards, these we have no to re- occasion Frega, States Cir. solve the of issue. standard review 1999)) question governs the of what standard

463 that, Court, court, prior appellants’ filing to recognized that ord reveals this have often, prosecu- plea negotia- suppress, as a their motions to the will of prosecutors tactic, charges dur- increased indicated letter her intention to threaten tor negotiations, indictment, plea course of as superseding the the well as seek later, make forthcoming, is guilty plea doing if no to in willingness refrain from so her that Recognizing threat. good on that on exchange guilty plea conspira- for a the meaning- prosecutorial conduct is Thus, such cy charge. the fact that the su- more charging fully distinguishable on perseding closely indictment followed reducing the strictly the outset and then at that would appellants’ pur- indication plea negotiations, charges of as result to suppress, sue motions without threatening that courts have concluded the more, no presumption raises of vindictive- charges severe filing and then more Noushfar, 78 F.3d at 1446. ness. See outgrowth plea negotiations of does Moreover, timing superseding the of the Bordenkircher, process. See violate due explained by the adequately indictment 663; 363-64, 98 434 at U.S. in delays plea negotiation pro- the inherent Noushfar, 78 F.3d States two after the hearing cess. At months Cir.1996). letter, plea prosecutor’s second offer Here, prosecutor’s actions district prosecutor indicated sentence-enhancing informa- filing in- superseding that she would seek in seeking superseding tions and trial; at same dictment before that hear- plea place during ongoing took dictment it that ing, negotiations was disclosed on government After negotiations. plea ongoing offer were still at prior with appellants’ of records it learned defendant, at one ade- point with least original offer on June plea drew its filing the belated of the quately explaining later, days of 1998. Ten indictment, which all superseding covered also revised a letter that plea fered a (as original did the indict- appellants three informations appellants notified ment). day. filed the next informa- would be record, short, our cases leave this appellants’ prior con tions were based on appellants’ contention that we no room for victions, no prosecutor had which either from may presume vindictiveness knowledge original time the indict in- prosecutor’s explicit linkage charges filed. increased was “When appellants’ charges creased refusal prosecu- are routine course filed Bordenkircher, plead guilty, see continuing a result of torial review 363-64, fact or from the no investigation there is realistic likelihood indictment filed superseding was abuse, therefore no prosecutorial shortly appellants after filed their motions prosecution arises appearance vindictive Noushfar, suppress, see merely was prosecutor’s because the action more, allegations (holding that without right exercised.” taken after defense was “charges additional were filed because Gallegos-Curiel, F.2d at 1169. suppress evi- the defendants had moved to indictment, superseding As for the ... to create [are] dence insufficient appellants ask us to infer vindictiveness vindictiveness”). presumption government sought from the fact that judgment point of the court on only indictment after second any under standard review. correct suppress filed their motions to indicat proceed to trial. ed their intention Quantity Marijuana Calculation IV. con Again, place these events took Sentencing [Gamez-Orduño] negotiations, text of and the increased plea challenges the dis- next charges subject themselves that, sentencing ruling court’s The rec- trict negotiations parties: between purposes, responsible marijuana all the for he was for countable the full amount of particular, in the marijuana the trailer. seized trailer. In found al- though there is evidence record that pled guilty conspiracy Gamez-Orduño may suggest that appellants “coordinatefd] possess marijuana with intent to distrib- importation by walking efforts across it, in violation ute of 21 U.S.C. together the border for mutual assistance 841(b)(1)(B) §§ and 846. district lB1.3(a)(l)(B) § protection,” U.S.S.G. court determined that the offenses to 2(c)(8), cmt. n. any PSR does make pled guilty which Gamez-Orduño involved finding. Nor PSR such does the state that marijuana, kilograms over 100 and that marijuana smuggling in excess of 800 had con- previously Gamez-Orduño been pounds was a reasonably foreseeable out- Therefore, drug felony. victed of a Ga- joint come of Gamez-Orduño’s efforts with statutory faced a minimum mez-Orduño his co-defendants. years. sentence of ten U.S.C. 841(b)(1)(B). § Even though the PSR’s quantity which drugs for Gamez- determining quantity was only Orduño accountable amounted marijuana which for Gamez-Orduño was “conelusory statements,” United States v. responsible sentencing purposes, for the Becerra, (9th Cir.1993), 992 F.2d required district court was [the] “assess simply adopted the district court the “facts respon defendant’s individual ... level of [PSR], forth in as set as to the ac sibility drugs for the amount of involved in countability of each for defendant the total by determining, [the] offense in accord quantity drugs present,” ... Guidelines, with [Sentencing] accepted and on basis the PSR’s cal amount that the defendant could reason of the By culation base offense level. do ably foresee ... would be involved so, For, district court erred. while guilty.” offense of which he was United sentencing adopt “the court may the factu Nunez-Carreon, States v. 47 F.3d findings al report,” of the presentence (9th Cir.1995). Where, here, the defen court “may adopt district ... coneluso- dant is with charged “jointly undertaken ry unsupported statements the facts or activity,” criminal U.S.S.G. Becerra, 966; the Guidelines.” 992 F.2d at lB1.3(a)(l)(B), § a “defendant is accounta Navarro, accord States v. 979 F.2d ble for quantities all contraband (9th Cir.1992). 786, 788 and, which directly he involved It improper was therefore to hold Ga- jointly case of a activity, undertaken all responsible mez-Orduño full reasonably quantities foreseeable of con marijuana amount in the trailer without traband that were within of the scope an explicit finding what as to amount he criminal activity jointly he under reasonably could foresee “would be in- 1; § took.” U.S.S.G. 1B1.3 cmt. n. see volved in the which [pled] offense of he also v. Palafox-Mazon, United States Nunez-Carreon, guilty.” 47 F.3d at 999. 1182, 1186 Cir.2000). We remand to the to make appropriate findings question, on this The PSR’s calculation for Gamez- to reconsider the appropriate offense level Orduño’s merely says base offense level those lB1.3(a)(l)(B), findings. based on “[p]er § the defendant accountable for the kilograms 399.26 Immunity Agreement Breach V. marijuana guideline seized. The for this [Martinez-Villa] 841(a)(1) §§ violation of 21 U.S.C. and 846 2D1.1(c)(7).” Thus, §is PSR at 5. Martinez-Villa contends that PSR appropriate guideline cited the immunity agree breached the jointly undertaken activity, criminal but ment it reached with him governing the why did not 11,1998 state was ac- August talk session free he had on

465 is not 2 if Martinez-Villa paragraph in he Specifically, government. the with candid,” an additional not as the “truthful breached government the that claims even when applicable requirement him notice it cross-examined when agreement 1, gov- allow otherwise December hearing agreement held on the would motions the Accordingly, the talk. existence of the free 1998, it disclosed use when ernment novo, him giving de the issue report considering talk without free of the 1461, Dudden, 1467 v. 65 notice. States prior govern- that the Cir.1995), we conclude by the claims are belied these Both of 5 paragraph required under ment was 2, itself, paragraph particular in agreement that intend- notice it Martinez-Villa give provides: which sup- during the his statements to use ed (2) provided as otherwise Except did district court hearing. pression herein, three, paragraphs five four no determining there not err in any case and above-captioned the agreement. immunity violation brought against may be prosecution office, government your client CONCLUSION case-in- in its as evidence will offer sen- any with or in connection ruling appel- court’s The district chief purpose tencing proceeding assert their standing to lacked lants sentence, appropriate determining reversed, is claims Amendment Fourth by your client made any statements sentencing decision court’s is the district meeting. Gamez-Orduño, appellant respect with added). pro- for further motions case is remanded At the and the (emphasis 1 SER and, if suppress infor- the motion ceedings used government hearing, sentence. necessary, to formulate on Gamez-Orduño’s free talk mation from judgment of respects, of Mar- cross-examination In all other its questions for violate para- did not is affirmed. use court Such tinezr-Villa. 2, part it was neither

graph PART, REVERSED IN AFFIRMED nor connec- case-in-chief government’s FOR PART, REMANDED AND IN sentencing. WITH CONSISTENT PROCEEDINGS however, argues, Martinez-Villa THIS OPINION talk free of the disclosure government’s paragraph violated prior notice without concurring NOONAN, Judge, Circuit pro- paragraph That agreement. dissenting: vides that: of the opinion I concur con- ever should government [I]f ... holding that Gamez-Ordu- to its except as knowingly has client your clude that pro- claim the may companions ño his govern- from the information withheld Amendment. Fourth of the tection completely been or otherwise not Amend- candid, government the Fourth The extension truthful reasonably forti- any your overnight client visitors may against use ment to any sentencing) secure (including right persons purpose fies the information other extension embraces dwellings. made or statements during client home- who are the by you your provided overnight visitors those Olson, so con- meeting. If the Minnesota guests. owner’s making cludes, notify before you 109 L.Ed.2d will it he or other such statements any (1990). testified use ar- and seven others information.... and Martinez-Carra the bed down on “lying trailer added). rived Paragraph (emphasis SER by a driven truck a pick-up in the back” however, sensibly understood as most way That is not not know. man he did enumerated prohibitions to the exception guests customarily arrive. Once at the could have had was to be arrested if they trailer, backpackers were not told “to were discovered. That expectation, which Instead, make themselves at home.” they was also expectation of our society, were instructed not to about move and was realized when the Border Patrol ar- “not to go out at all.” A person under rived.

such restrictive orders does qualify as guest in any fairly sense of that specific

term, except guest obsolete sense of

meaning “stranger.” backpackers

These business

when they stopped overnight at the trailer

controlled by them confederates. The

term or “houseguest overnight guest,” America, UNITED suggestion STATES of of friendly hospitality,

does not fit them. Neither Oscar nor his Plaintiff-Appellee, absent mother treated these men per- sons with special regard guests Ronald CARLSON, S. Defendant- customarily receive. No “longstanding so- Appellant. cial custom” supports putting aup crowd men, at most known as mules in the No. 99-10525. criminal business conducted their hosts. United States Court Appeals, No recognized “functions as valuable by Ninth Circuit. society” performed by giving the drugs earners safe house they carried Argued and Submitted Nov. their drugs. Filed Dec. Nor w'ere the defendants like a business- man in town to do a deal put who is up

overnight by an associate. In such a case

there is an element of sociability in the

accommodation offered and accepted. The

guest could stayed hotel; have in a it is a

bit of hospitality to take him her into a

home. hospitality Here was not the aim. provided trailer the necessities of the criminal trip and rest so that —food

refreshed conspirators could continue on to

market their wares.

The district court did not err in its

factual were in travelers

the trailer purely “for pur- commercial

pose.” The district court did err in its

legal they conclusion legiti- had no

mate expectation privacy recognized by

society. The business of these men was to

carry marijuana into the States;

that they paused in their journey gain

strength did not mean that they gave up trailer, task. In the it, as outside

they were the carriers forbidden mer-

chandise. only expectation

Case Details

Case Name: United States v. Juan Rodrigo Gamez-Orduno, Jose Martinez-Carra, Jesus Martinez-Villa

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 14, 2000

Citation: 235 F.3d 453

Docket Number: 99-10443, 99-10445, 99-10048

Court Abbreviation: 9th Cir.