United States v. Jesus Lopez-Trujillo

FILED
NOT FOR PUBLICATION NOV 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30169
Plaintiff - Appellee, D.C. No. 2:13-CR-06049-EFS-3
v.
MEMORANDUM*
JESUS LOPEZ-TRUJILLO,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted on the briefs October 16, 2015 **
Seattle, Washington
Before: FLETCHER and GOULD, Circuit Judges, and EZRA, District Judge.***
Jesus Lopez-Trujillo (“Appellant”) appeals his conviction for conspiracy to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
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distribute methamphetamine and possession of methamphetamine with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
Appellant first contends that the district court erred by failing to sua sponte
require the government to grant use immunity to defense witness Manuel
Sandoval-Valdivia (“Sandoval-Valdivia”). Appellant did not ask the government
to grant use immunity to Sandoval-Valdivia, and did not request that the district
court compel such immunity. Where a defendant does not ask the district court to
compel use immunity, whether the district court should have done so sua sponte is
reviewed for plain error. United States v. Olano, 507 U.S. 725, 730–36 (1993).
The record is clear that Sandoval-Valdivia’s decision to assert his right
against self-incrimination was based on the advice of his counsel, and there is no
evidence that the government engaged in any conduct that could be said to
“amount to something akin to prosecutorial misconduct.” United States v. Straub,
538 F.3d 1147, 1157 (9th Cir. 2008). The record is also clear that the failure to
grant immunity to Sandoval-Valdivia did not “so distort[] the fact-finding process
that the defendant was denied his due process right to a fundamentally fair trial.”
Id. at 1162. Sandoval-Valdivia’s proffered testimony was consistent with the
testimony of government witness Juan Trinidad-Magdaleno (“Trinidad-
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Magdaleno”), and would have done nothing to rebut Trinidad-Magdaleno’s
testimony regarding Appellant’s role in the conspiracy prior to the date on which
they were arrested. The district court therefore did not plainly err by failing to
compel use immunity for Sandoval-Valdivia sua sponte.
Appellant further argues that the district court erred in failing to hold an
evidentiary hearing to explore Sandoval-Valdivia’s proffered testimony. A district
court’s failure to conduct such a hearing is reviewed for plain error. United States
v. Flores-Blanco, 623 F.3d 912, 918 n.2 (9th Cir. 2010). A district court is not
required to conduct an evidentiary hearing to determine whether to compel use
immunity for a defense witness, see id. at 917–18 (affirming district court’s refusal
to compel immunity following defense counsel’s proffer of witness’s testimony);
United States v. Duran, 189 F.3d 1071, 1087–88 (9th Cir. 1999) (same), and
Appellant did not request that the district court conduct such a hearing. Given that
a district court need not always conduct an evidentiary hearing even when the issue
of compelled immunity has been raised before the court, the district court did not
plainly err by failing to conduct an evidentiary hearing where Appellant had
neither raised the issue of immunity nor requested an evidentiary hearing.
Appellant next contends that the district court abused its discretion in
declining to issue a missing-witness jury instruction. The district court correctly
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found that a missing-witness instruction was inappropriate because Sandoval-
Valdivia was not “peculiarly within the power of the other party” and because
there was no “natural and reasonable” inference that Sandoval-Valdivia would
have given testimony unfavorable to the government. See United States v. Leal-
Del Carmen, 697 F.3d 964, 974 (9th Cir. 2012). Sandoval-Valdivia’s
unavailability as a witness was the result of his invocation of his Fifth Amendment
privilege against self-incrimination, and he was therefore unavailable to both
Appellant and the government. United States v. Brutzman, 731 F.2d 1449,
1453–54 (9th Cir. 1984), questioned on other grounds by United States v.
Charmley, 764 F.2d 675, 677 n.1 (9th Cir. 1985). Additionally, the testimony
proffered by defense counsel was consistent with the relevant testimony given by
Trinidad-Magdaleno, and the factual basis in Sandoval-Valdivia’s plea agreement
implicates Appellant in the charged drug transaction. Sandoval-Valdivia’s plea
colloquy, in which he pled guilty to conspiring with Appellant and Trinidad-
Magdaleno, similarly implicates Appellant. The district court was well within its
discretion in declining to give a missing-witness instruction.
Appellant finally contends that his attorney’s failure to request that the
government grant use immunity to Sandoval-Valdivia constitutes ineffective
assistance of counsel. The factual record currently before the court is not
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sufficiently developed to permit determination of this issue on direct appeal. See
United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). The court therefore
declines to consider Appellant’s ineffective assistance claim on direct appeal.
AFFIRMED.
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