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U.S. v. Espinoza

United States Court of Appeals, Ninth Circuit
Aug 13, 2003
71 F. App'x 759 (9th Cir. 2003)

Opinion


71 Fed.Appx. 759 (9th Cir. 2003) UNITED STATES of America, Plaintiff-Appellee, v. Yor Eduardo ESPINOZA, Defendant-Appellant. D.C. CR-01-01445-MJL. No. 02-50474. United States Court of Appeals, Ninth Circuit. August 13, 2003

Argued and Submitted August 5, 2003.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Southern District of California, M. James Lorenz, District Judge, Presiding.

Before KOZINSKI and T.G. NELSON, Circuit Judges, and RESTANI, Judge.

The Honorable Jane A. Restani, United States Court of International Trade, sitting by designation.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Yor Eduardo Espinoza appeals his jury conviction of importation of marijuana (21 U.S.C. §§ 952, 960) and possession of marijuana (21 U.S.C. § 841(a)(1)).

Defendant has a fundamental right to compulsory process, but the trial judge also has discretion in running his courtroom. Perry v. Rushen, 713 F.2d 1447, 1450-51 (9th Cir.1983) (citing Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ("Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.")).

We find here that the court abused its discretion. Counsel was not required to foresee that a subpoenaed witness would not appear and should have been permitted a brief amount of time after the witness failed to appear to present proof of service of the subpoena upon the witness. The possibility that the witness might exercise his right not to incriminate himself under the Fifth Amendment does not trump defendant's right to compulsory process with regard to a percipient witness.

We do not reach the other issues raised by defendant as the judgment of conviction herein is vacated.

REVERSED and REMANDED.


Summaries of

U.S. v. Espinoza

United States Court of Appeals, Ninth Circuit
Aug 13, 2003
71 F. App'x 759 (9th Cir. 2003)
Case details for

U.S. v. Espinoza

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Yor Eduardo ESPINOZA…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 13, 2003

Citations

71 F. App'x 759 (9th Cir. 2003)