United States v. Lucero Alberto Escalante

TO CHALLENGE CASSIDY’S VI. America, STATES of THE INDICTMENT UNITED Plaintiff-Appellee, for Cassidy argues Appellant prosecu appeal time on first exculpatory evidence present tor’s failure ESCALANTE, Alberto Lucero informer government aas his status Defendant-Appellant. dismissal of the jury requires grand 74-1075. No. A showing him.7 against indictment necessary before we of Appeals, is error United fundamental Unit below. not raised issues Circuit. Ninth will consider (9th 492 F.2d 178 Cir. Murray, ed States nom., sub Roberts v. 1973), cert. denied States,

United (1974). See 52(b). Fed.R.Crim.P. has been shown to error exist.

No such has not demonstrated that he by the challenged prosecuto prejudiced He has failed to show conduct. that his

rial actually exculpates him. as an informer

role his reliance on in cases consequence,

aAs perjured testimony rele use

volving element in an indictment to a material

vant Basurto, States v. See misplaced. (9th 1974). Cir. We can no exculpation than we can ma

more assume Moreover, recognize

teriality. wide prosecution which exer

discretion grand jury proceedings.

cise in Co., Y. & v. Hata (9th F.2d 508 1976).

Cir.

Except upon for the convictions Count

which are in reversed, each instance

Stradley’s upon conviction Count all convictions are

other affirmed.

Stradley was sentenced Count 21 to years,

two on Count years, five years,

on Count 28 to four all sentences to concurrently.

run Stradley’s conviction

upon Count is set aside upon the

government’s agreement, on a petition for

rehearing, depended upon Count 22

and falls with the conviction Count 22. part;

Affirmed in part; reversed in entry

remanded for of a modified sen-

tence in No. United States v. Stradley.

Walter 12(f). Cassidy cause. dismiss an indictment must be Fed.R.Crim.P. failed to 7. Motions they pretrial trial are waived. Fed.R. ground indictment; made before motion to include this his see, g., (f); e. v. Unit 12(b)(2), Mitchell Crim.P. failure alone is dismiss cert. ed denied, F.2d 230 he did not because receive a tran- excusable grand jury proceedings script the relevant may, however, Nevertheless, through midway trial court de the trial. until motion, Fed.R.Crim.P. excuse for fer determination his failure to no similar has grant good during 12(e), relief from the waiver trial. his motion renew

971 Sanchez decided, 9, and before May 1974, this court announced its when 500 960 aff'd, 916, 422 (9th U.S. 95 S.Ct. 641 (1975). 2569, 45 L.Ed.2d That such issue, is not are unconstitutional at in specifically so declared they for 422 previ- and S.Ct. Bowen.1 held us in by been so ously what extent essentially to issue retroactively to be should Bowen. our announcement case The facts of the are not in dispute. At 1:05 on approximately morning of Escalante, pro se. Alberto Lucero agents Border Patrol at the Knoll, Ragen, Prank J. Federal P. John immigration San Clemente checkpoint on Inc., Diego, Cal., submitted Defenders, San Interstate Route approximately 66 miles defendant-appellant. for on border, briefs stopped from the Mexican a sedan appellant driven after by agent one Terry Knoepp, Atty., J. U. S. James W. noticed spare a in the back tire seat Atty., Diego, Cal., Asst. U. S. San vehicle. Meyers, Questioned as to his rehearing, citizenship, appellant for petition plaintiff- for a replied that he was United Peterson, Stephen W. citizen. appellee; Asst. U. S. to open He was then asked Cal., the trunk Atty., Diego, San on the com- brief. based partment, upon the agent’s suspicion that the vehicle was carrying illegal aliens. 222 pounds revealed of marijua- search na. The Government does not claim that BROWNING, ELY, HUFSTED- Before there was cause for the search.2 WRIGHT, TRASK, LER, CHOY, GOOD- SNEED, WALLACE, KENNEDY, WIN, suppress moved the marijua- ANDERSON, Judges. Circuit na ground and on the it was evidence violation the fourth amend- CHOY, Judge: ment, and that motion was denied. He presented to us on rehear- by then trial jury proceeded waived and ing en banc is whether Almeida-Sanchez v. trial upon stipulated facts. Appellant was States, of possessing convicted marijuana with in- (1973), requires suppres- tent to distribute it violation of 21 U.S.C. sion evidence obtained searches of 841(a)(1) and was sentenced § to three permanent vehicles at traffic check- years’ custody by followed special parole from the points removed border or its func- term years. of two by tional made Border Patrol consent or probable officers without cause, The precedents this surrounding case are date that after Almeida-Sanchez, the Su- complicated. below, portion 1. As discussed our deci- the rear seat adequate constitutes an ground sion Bowen was later disavowed supporting suspicion” a “reasonable for a affirming judgment. search, Wright, see United States v. 95 S.Ct. 2569. Cir.), denied, cert. (1973). 38 L.Ed.2d 53 There is no contrary, phrases it issue Quite issue here as to parties. consent raised stopped as: case “Whether Appellant’s Brief at 9-14. See illegal Schneckloth v. searched for aliens Bustamonte, Immigration checkpoints.” Ap- cause pellee’s (emphasis added). at 1 Brief For a presence spare of a tire in appellant contends that a vehicle unconstitutional preme all such roving patrol looking unit by a proba- not on consent or aliens illegal In Ortiz stated: being car’s simply ble persuaded that the differ- We are vicinity of the border. general in the located patrols roving between ences Bowen, following we year, justify dispensing checkpoints in this case consideration, that Almeida-San- en banc safeguards required we in Al- to searches at fixed well as applied chez We therefore follow meida-Sanchez. that but also Almeida-Sanchez checkpoints, that and hold at traffic decision that thus retroactively, applied removed the border and in a officers may that evidence its functional ruling private vehicles without con- Bound not search excluded. should not be cause. sent or ap- that Almeida-Sanchez Bowen’s checkpoint directly to fixed at plied at 2588. 422 U.S. S.Ct. post-Almeida-Sanchez with a faced we Contrary appellant, to believe that the panel originally that heard this search, the language in Ortiz Supreme Court's neither Later, conviction. appellant’s reversed case previ- at any that the Court time indicates however, vacated that searches, on checkpoint had ruled nor ously stating: holding, Bowen that implies Almeida-Sanchez held even invalid. checkpoint searches Ortiz does not Appeals correctly theAs Almeida-Sanchez that decided the state case that did not the Supreme but that Court "fol- question, search, it should have a 1971 to apply and, principle Almeida-Sanchez lows” considering whether our refrained time, the first “holds” that Almeida- to applied that to applies traffic re- Sanchez checkpoints. at its from the border and functional moved 422 U.S. 920- Bowen v. True, Mr. Justice Powell not- equivalents. 2569, 2573, 45 95 S.Ct. majority that the Court ed in his Hence, being controlling far from Almeida- time follow would at “reaching this court’s out authority, [in Sanchez; suggest nowhere did but ap- to decide Bowen ] itself established searches in a case checkpoint plied of searches at illegality fixed check- decision of the issue” require did Justice thought Had Mr. Powell points. at 2573. at 95 S.Ct. error. Id. had been decided in the issue Sanchez, he have readily could said so. In- Bowen, day that it issued On the stead, he stated the Court would its own announced determination the Court decision,” and then he “holds” “follow checkpoint fixed vehicle in Ortiz was unlawful. such search consent or under fourth amend- improper supported, is also interpretation This argues that, though our ment. believe, language used Mr. by the Jus- effect in longer to that Bowen no writing for the statement Powell tice day makes clear that Almeida- Ortiz filed the same as Ortiz: applies, authority controlling for in- is the Sanchez in United v. today hold Or- checkpoint fixed searches. validating ante, 2585, 45 tiz, the Fourth Amend- if rule does not Thus even Almeida-Sanchez, ment, interpreted in checkpoint pre-Almeida-Sanchez extend at searching cars traffic check- searches, Almeida-Sanchez itself is not forbids since proba- absence of consent in the points retroactive, States, 422 Bowen v. United ble cause. 2569, 45 Peltier, (1975); (emphasis 95 S.Ct. at 2571 court, 45 L.Ed.2d 374 added). To this Court’s mean one size thing: can above Almeida-Sanchez itself only con- language hold that prin- did not its pursuant such searches conducted cerned check- to searches That ciples roving patrols. holding did not affect so hold. Ortiz did but It points, is therefore checkpoint searches. clear Almeida-Sanchez, nor, for that that neither principle Almeida-San- Given decision, matter, other in Ortiz to been held since chez has Government, court searches, judges, district or circuit arises checkpoint notice that judges adequate from searches conducted check- evidence court whether 21, 1973, before our opinion prohibited.3 searches were 9, 1974, should be sup- Bowen announced a Not until Peltier, pressed. doctrine as to new constitutional 2313, 45 531, 95 searches, and broadened the ex- Court observed: the (1975), rule exclusionary (as isting Almeida-San- exclusionary of the rule is purpose If done roving as to previously pa- chez police conduct unlawful then evi- deter guidelines any there trols), were for arrest- a search should be dence follow. are ing officers We thus con- it can be said that the only if suppressed retroactivity question awith which fronted had knowledge, officer enforcement law one to the which the Supreme is similar with charged knowl- properly or in Peltier. Because the Court confronted was unconstitution- the search edge, seized evidence here rea- Amendment. the Fourth al under faith, sonably, good and without knowl- 2320. 95 S.Ct. at Id. at unconstitutional, was the search edge that herein, we to the dissent believe Contrary evidence from fixed we hold that check- to this court’s decision prior clear it is without consent or point probable searches holding was no which there to our holding cause conducted agencies adequate notice law enforcement Bowen on need not be sup- fixed unconstitutionality of check- of the pressed. probable without conducted searches point conclude We therefore conviction The of Jus- consent. cause or is, be, AFFIRMED. and agencies state law enforcement

tice and aware were HUFSTEDLER, Judge, Circuit impermissible. constitutionally BROWNING, ELY GOODWIN, and whom claims, par- “The Government was a dissent join, dissenting: Judges, the point of cases in which was dozens ty to retroactivity issue is presented by But No Infra at 975. dissent made.” any held, (1975) one case v. Ortiz claim that or United States does 45 L.Ed.2d 623. that such were un- implied, even sharp own division v. United States Our constitutional. in Bowen —seven six—reflects (1973) issue 413 U.S. and the applied of the lack of closeness invalidate searches implication prior to the checkpoints clear of any in Bowen itself. We empha- the border or announcement its functional removed recently, filed on the Most United States v. Martinez- note another day Ortiz and the Court Fuerte, de- apply the same clined to stan- (1976), stops the Court held that routine roving patrol variation dard to another questioning could be made at reason for brief of United States ably without in located Brignoni-Ponce, suspicion particular dividualized vehi the Court held that a illegal aliens. cle contains stop roving patrol a motorist could near the As it inquiry brief into his for a residential border precedent certainly for these a relevant deci- lesser standard rea- status sions, serve it did not to dictate the result. suspicion. sonable 1974) officers F.2d 7. As by patrol border Rodriguez made cause, and opinion: consent stated in the date that made after and search took stop place “Since majori- came down.1 21,1973, the date on which the startling reaches the in this ty opinion conclusion Almei- unprecedented States, supra, the non-retroac- v. United limited given prospective bewill da-Sanchez decision as to fix of that tivity our court. by application . . . need not alien (498 us concern omitted].” [citations no new constitutional announced 7-8.) existing “broaden” an did not It doctrine. (See rule. exclusionary not firmly rejected if we had Even 531, 537, 95 S.Ct. Peltier attempts earlier to limit the Government’s All 374.) that Ortiz did 2313, 45 L.Ed.2d Almeida-Sanchez, impact ma- future searches of why checkpoint explain was to unacceptable. conclusion is opinion’s jority invalidated had been this kind prospec- cannot limit the appeals A court Sanchez. a constitutional rule laid application tive majori- Court. If the down between the check- difference accepted, the Supreme ty’s view were the Government made argument authority as the final arbiter of Court’s and the one it makes here lost in Ortiz issues would be seriously constitutional argument justify seeks to present that its is eroded, destroyed. if not Almeida-Sanchez Almeida-Sanchez for a from exception an that were conducted searches invalidated it sought time than in Ortiz. period lesser and the same admin- very the statute under in- except checkpoints Ortiz, it tried In upon which the regulations istrative Here it definitely relies, and, now to the extent Government from the Almeida-Sanchez escape seeks to judicial was “continuous approv- there to the date that we decision date of conducted, thus the continui- searches Cir., v. al” of 9th United States decided when Almeida-Sanchez 9, snapped 960, May 1974. ty down. came in Court Ortiz rebuffed the Supreme meaning language of the Court’s We attempt. had earlier re- Government’s Peltier, suppressed should be only “evidence Although Bowen. contention jected the the law enforcement premature,2 the can be said Bowen dictum if it our may properly or be rely sup- knowledge, on Bowen .to cannot had officer knowledge, Bowen itself the search refused. exception charged an with port the Fourth a similar contention our under rejected was unconstitutional Peltier, v. Juarez- States v. su- (United in United panel opinion Amendment” prospective every entitled squarely effect in court that Almeida-Sanchez in- held 1. Ortiz checkpoint these searches that oc- validated the land. per- June 1973: “We are not curred after majority of our court held that the In roving pa- that the differences between suaded apply not to searches that did Almeida-Sanchez justify dispensing trols and traffic 21, 1973, and, dictum, June before occurred safeguards required the this case with invalidated check- that Almeida-Sanchez stated Almeida-Sanchez. We therefore follow that searches, without consent point conducted or that at and hold decision June 1973. The Su- probable the border or its removed from functional nonrectroactivity the preme affirmed Court not officers search v. in Bowen probable without consent cause.” 95 S.Ct. 45 L.Ed.2d (1975) 422 U.S. (Emphasis added. 422 U.S. at 95 S.Ct. at us that we also reminded 641. The Court 2588.) the whether reached not have interpretation majority’s of Ortiz drains to fixed Moreover, meaning the case. the involved the search had oc- because searches every majority Supreme does not have to decide Court curred before application decision on a constitu- was not of a former that Almeida-Sanchez had concluded principle an earlier decision is before tional retroactive. ed. 2320) Notwithstanding is not these opportunities U.S. pra, Court has Supreme difficult to believe very failed to so indicate. But it clear. of a retrospectivity means opportunities of these it- presented One upon can turn Court Supreme v. United in Bowen self particular searching of a state subjective 2569, 45 degree to which mind officer’s as Ortiz. Involved in day the same decided reading sophisticated bemay point check was a fixed search not Bowen did, applicability If it opinions. Court cause. The Supreme based in cases involv- decisions we, Circuit, the Ninth cor- conflicting hopelessly be would ing “that rectly are troublesome They unpredictable. a 1971 search.” sugges- No did obliged to deal when we are enough in the Bowen appears tion states of differing judges’ minds with point check validate would subject. complex on this cause made subsequent 21, 1973, 30,1975, to June knowledge of a law extent To the and Bowen both decid- the date conducting a search has officer enforcement suggestion such would have re- Any ed. retrospectivity problem, on a bearing Ortiz because the reconciliation quired knowledge imputable is that knowledge occurred on in that case November law enforcement officer hypothetical to a part. which he is a A system within officer must at enforcement law opportunity federal to suggest Another chargeable” with the “properly occurring between the least dates of law enforcement federal and Ortiz were valid arose knowledge of including of Justice. Martinez-Fuerte, agencies, (C v. United States (1972) 405 Giglio f. 150, 154, 92 S.Ct. that check stops Warden, Maryland Penitentiary Barbee adhered to were valid 842, 846.) The 1964) 331 indication that no was Ortiz much very of Justice subsequent to searches inapplicable Almeida-Sanchez, if not be aware, after searches were proba fore, that Thus, cannot avoid the firm belief that I roving searches. The way of going bly has selected June Supreme Court party to dozens of cases date. being critical This as its was made. Under these in which case, the date on which this court I view Government, circumstances, acting is in no patrol agents, these border through viz. May (9th Cir. reliance any good faith claim position does not mean This that issues irrelevant. checkpoint searches. of these validity Bowen could not be by our distin- presented those I prior decision re- guished reaffirm I would then and remain they could thought versing the conviction. Court, however, mind. did, thought deciding as it other- (dissenting): SNEED, Judge If the view controls. date of Their wise. Court has had am- I believe to be made 9, 1974 is memorable the indicate that opportunities ple should do it. was not to be searches at fixed check retroactively to occur- not based

points to June 1973 but subsequent

ring 1975, the date was decid-

Case Details

Case Name: United States v. Lucero Alberto Escalante

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 31, 1977

Citation: 554 F.2d 970

Docket Number: 74-1075

Court Abbreviation: 9th Cir.