United States v. Jose Muniz-Jaquez ( 2013 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 12-50056
    Plaintiff-Appellee,
    D.C. No.
    v.                         3:10-cr-02637-
    JAH-1
    JOSE AUGUSTINE MUNIZ-
    JAQUEZ,
    Defendant-Appellant.              OPINION
    Appeal from the United States District Court
    for the Southern District of California
    John A. Houston, District Judge, Presiding
    Argued and Submitted
    February 12, 2013—Pasadena, California
    Filed June 10, 2013
    Before: Alfred T. Goodwin, Andrew J. Kleinfeld,
    and Barry G. Silverman, Circuit Judges.
    Opinion by Judge Goodwin
    2              UNITED STATES V. MUNIZ-JAQUEZ
    SUMMARY*
    Criminal Law
    Vacating an illegal reentry conviction and remanding, the
    panel held that the district court abused its discretion under
    Fed. R. Crim. P. 16 by failing to order production of Border
    Patrol dispatch tapes.
    The panel observed that defense’s counsel’s seeking the
    tapes to potentially further an official restraint defense, as
    well as for possible use in impeaching the agent who testified
    that he called for backup over his service radio immediately
    after spotting the defendant, was not a fishing expedition.
    The panel also observed that the district court had no basis to
    conclude, without listening to the tapes, that the defendant’s
    showing of materiality was speculative.
    COUNSEL
    Devin Burstein, Federal Public Defenders of San Diego, Inc.,
    San Diego, California, for Defendant-Appellant.
    Blair C. Perez (argued), Assistant United States Attorney,
    Laura E. Duffy, United States Attorney, Bruce Castetter,
    Chief, Appellate Section Criminal Division, United States
    Attorney’s Office, San Diego, California, for Plaintiff-
    Appellee.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. MUNIZ-JAQUEZ                   3
    OPINION
    GOODWIN, Senior Circuit Judge:
    Jose Augustine Muniz-Jaquez appeals his conviction for
    being a deported alien found in the United States. He assigns
    error to the district court’s failure to order production of
    certain U.S. Border Patrol dispatch tapes. Because the district
    court erred in excluding potentially exculpatory evidence, we
    vacate the conviction and remand.
    I. BACKGROUND
    On April 28, 2010, U.S. Border Patrol Agent Derrick
    Woodford observed Muniz-Jaquez and four others running
    north near Copper Canyon, three miles east of Otay Mesa,
    California, clearly within the United States. Prior to trial,
    defense counsel filed a timely discovery motion requesting all
    arrest reports, notes, and dispatch tapes. The government
    produced some materials, but no dispatch tapes.
    During trial, Agent Woodford testified that Copper
    Canyon begins nearly at the U.S./Mexico border and extends
    roughly a mile north of the border. He testified that he drove
    along a road running adjacent to the border fence that then
    curved north, crossed two bridges, and curved back south to
    the fence. He testified that, as he came around the initial
    curve, he observed five individuals north of the second
    bridge, roughly fifty yards from him, walking north. On
    cross-examination, Agent Woodford testified that he did not
    see Muniz-Jaquez walking north from the fence, but rather
    spotted him north of the second bridge. However, after
    reviewing his written report of the incident, he also testified
    that he had written that he observed five people “running
    4            UNITED STATES V. MUNIZ-JAQUEZ
    north from the immediate border area.” He further stated that
    immediately after spotting the individuals, he called for
    backup over his service radio, which would have been tape-
    recorded.
    During recess, the prosecutor, who had not previously
    known of the tapes, learned that they existed, but asserted
    they were not discoverable. Defense counsel conceded, but
    preserved for appeal, that the tapes were not covered by the
    Jencks Act. Defense counsel then argued that any tapes were
    discoverable under Federal Rule of Criminal Procedure 16
    and Brady v. Maryland, 
    373 U.S. 83
     (1963). Defense counsel
    argued that the tapes were relevant to presenting an official-
    restraint defense: Muniz-Jaquez might have been observed
    from the moment of entry until arrest. Federal law proscribes
    a deported alien’s entry, attempted entry, or being found in
    the United States. 
    8 U.S.C. § 1326
    (a). Muniz-Jaquez was
    indicted only for being found in the United States after his
    previous deportation and removal. Despite the seemingly
    plain language, however, “physical presence is not enough”
    to violate the statute. United States v. Pacheco-Medina,
    
    212 F.3d 1162
    , 1163 (9th Cir. 2000).
    In order to constitute “entry,” an alien must be free from
    official restraint. 
    Id. at 1164
    . Official restraint includes
    surveillance, regardless of the alien’s awareness. 
    Id.
     “The
    doctrine is premised on the theory that the alien is in the
    government’s constructive custody at the time of physical
    entry. By contrast, when an alien is able to exercise his free
    will subsequent to physical entry, he is not under official
    restraint.” 
    Id. at 1165
     (quoting United States v. Aguilar,
    
    883 F.2d 662
    , 683 (9th Cir. 1989)). This doctrine extends to
    the offense of being found in the United States, because the
    concept of entry is “embedded in the ‘found in’ offense.” 
    Id.
    UNITED STATES V. MUNIZ-JAQUEZ                   5
    at 1166. “[I]t logically follows that an entry, as defined
    legally, is required before a person is ‘found in’ the United
    States.” 
    Id.
    Counsel also argued that the recording could impeach
    Agent Woodford. Without listening to the tapes, the district
    court repeatedly questioned their exculpatory or material
    quality, characterizing arguments in favor of production as
    speculative. The court noted the lack of any other challenge
    to the agent’s testimony, as well as the “spotty” nature of the
    tapes which it had not reviewed, and seemed to conclude that
    the defense had untimely requested the tapes in the middle of
    trial.
    Prior to trial, the prosecutor presumed that the tapes no
    longer existed, and defense counsel also presumed, from past
    experience, that any tapes had been erased. The district court
    stated that defense counsel would be aware that these tapes
    should be available in the future and could bring motions
    earlier next time. Declaring the motion untimely and leading
    to inappropriate delay, the court said counsel had failed to
    establish that the tapes would be either material or
    exculpatory and denied the motion.
    We also note that the government conceded at oral
    argument that it would have produced the tapes prior to trial
    had it been aware of their existence.
    Following the conclusion of the bench trial, the district
    court found Muniz-Jaquez guilty of being a deported alien
    found in the United States. The court sentenced him to
    seventy months’ incarceration.
    6            UNITED STATES V. MUNIZ-JAQUEZ
    II. DISCUSSION
    Muniz-Jaquez does not make a Brady argument before us,
    though upon remand any exculpatory evidence must of course
    be disclosed. He concedes the Jencks Act does not apply,
    United States v. Bobadilla-Lopez, 
    954 F.2d 519
    , 522–23 (9th
    Cir. 1992), preserving the issue only for potential en banc
    review. The only issue remaining on appeal is the district
    court’s ruling under Rule 16. We reverse.
    Discovery rulings are reviewed for abuse of discretion,
    looking “to whether the district court reaches a result that is
    illogical [or] implausible.” United States v. Stever, 
    603 F.3d 747
    , 752 (9th Cir. 2010). Rule 16 “grants criminal
    defendants a broad right to discovery,” 
    id.,
     requiring
    disclosure of all documents “material to preparing the
    defense,” Fed. R. Crim. P. 16(a)(1)(E)(i). Rule 16 is thus
    broader than Brady. Information that is not exculpatory or
    impeaching may still be relevant to developing a possible
    defense. See United States v. Doe, 
    705 F.3d 1134
    , 1151 (9th
    Cir. 2013) (“Even if the documents [requested under Rule 16]
    caused [defendant] to completely abandon [his] entrapment
    defense and take an entirely different path, the documents
    would still have been ‘material to preparing the defense’
    under Rule 16(a)(1)(E)(i).”). Even inculpatory evidence may
    be relevant. A defendant who knows that the government has
    evidence that renders his planned defense useless can alter his
    trial strategy. Or he can seek a plea agreement instead of
    going to trial. As the Supreme Court recently noted,
    “criminal justice today is for the most part a system of pleas,
    not a system of trials.” Lafler v. Cooper, 
    132 S. Ct. 1376
    ,
    1388 (2012).
    UNITED STATES V. MUNIZ-JAQUEZ                     7
    “A defendant must make a threshold showing of
    materiality, which requires a presentation of facts which
    would tend to show that the Government is in possession of
    information helpful to the defense.” Stever, 
    603 F.3d at 752
    (quotation marks omitted). “Rule 16 permits discovery that
    is ‘relevant to the development of a possible defense.’”
    United States v. Mandel, 
    914 F.2d 1215
    , 1219 (9th Cir. 1990).
    “[G]eneral description[s] of the information sought [or]
    conclusory allegations of materiality” are insufficient. 
    Id.
    The district court concluded, without listening to the
    tapes, that Muniz-Jaquez’s showing of materiality was
    speculative. This court has held a defendant was entitled to
    discovery of drug dog certification materials because they
    “were crucial to [the defendant’s] ability to assess the dog’s
    reliability, a very important issue in his defense, and to
    conduct an effective cross-examination of the dog’s handler.”
    United States v. Cedano-Arellano, 
    332 F.3d 568
    , 571 (9th
    Cir. 2003). The handler had testified to the dog’s certification
    and “much-better-than-passing score” in the tests, and the
    court concluded there was “no reason why the certification
    documents, the production of which had been requested and
    about which the handler testified, should not have been
    disclosed.” 
    Id.
     (emphasis added).
    Here, Agent Woodford testified as to his location, and
    Muniz-Jaquez’s location at first sighting. Importantly, he
    also testified that he called for backup immediately upon
    sighting the defendant. Further, the agent’s report listed
    Muniz-Jaquez’s location as the immediate border area.
    Defense counsel here made clear that he sought the tapes to
    potentially further an official restraint defense, as well as for
    possible use in impeaching the agent. This was not a fishing
    expedition. As in Cedano-Arellano, the tapes could have
    8            UNITED STATES V. MUNIZ-JAQUEZ
    been crucial to Muniz-Jaquez’s ability to assess the reliability
    of Agent Woodford’s testimony and to cross-examine him
    effectively, both important issues in his defense. Moreover,
    given Agent Woodford’s testimony that he immediately
    called for backup, the tapes were clearly relevant to the
    defendant’s location and the official restraint defense.
    In rejecting the materiality showing, the district court
    referred to the “spotty” nature of the tapes. Problematically,
    it did so without listening to them. The district court also
    improperly relied on Agent Woodford’s supposed credibility
    and the lack of any challenge to his testimony. In doing so,
    the district court assumed the point in dispute. Without
    access to the tapes, Muniz-Jaquez had little material with
    which to challenge the agent’s testimony. The district court
    had no basis for finding the defendant’s showing of
    materiality to be speculative.
    The district court also appeared motivated to deny the
    motion because it occurred in the midst of trial. To the extent
    the district court based denial of the motion on the lateness of
    the request, that consideration was not relevant here because
    the lateness resulted from the government’s failure to disclose
    the tapes’ existence at the appropriate time. Timeliness and
    materiality are two different concepts and each has its place
    in the exercise of discretion. Particularly where, as here, both
    attorneys were apparently surprised to find the tapes still
    existed. Defense counsel cannot be faulted for failing to
    renew the request where, among other things, the prosecutor
    failed to realize the tapes still existed, and the government
    failed to disclose them in the first instance. The defense was
    certainly not dilatory.
    UNITED STATES V. MUNIZ-JAQUEZ               9
    III. CONCLUSION
    In sum, the district court abused its discretion in
    excluding the tapes. We therefore remand for production of
    the recordings, any motions the production may generate,
    including any motion for a new trial, and such subsequent
    determinations as may be appropriate. Stever, 
    603 F.3d at 754
     (Rule 16 error may require “remand for a determination
    whether the Government’s documents in fact contain, or
    would have led to, information that might have altered the
    verdict”).
    REVERSED AND REMANDED with instructions.