Opinion
No. 05-50410, No. 05-50493.
July 6, 2007.
Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding, D.C. No. CR-01-03177-1-TJW.
Before: FISHER, CLIFTON and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Mark Stephen Forrester and Dennis Louis Alba challenge their convictions and sentences for crimes relating to the operation of a large Ecstasy laboratory in Escondido, California. Some of their claims are addressed in a separate, concurrently filed published opinion. Because we reverse Forrester's conviction and sentence on Sixth Amendment grounds in the published opinion, we consider his other claims only to the extent that Alba has joined in them.
First, the district court did not err in declining to order the production of the government's applications to monitor the to/from addresses in Alba's e-mail messages, the Internet Protocol addresses of the websites he visited and the volume of data transmitted to or from his account. Alba gives no reason why the computer surveillance applications were discoverable. In any case, Fed.R.Crim.P. 16(a)(1)(E)(i) was inapplicable because the applications were not "material to the preparation of the defense against the Government's case in chief." United States v. Armstrong, 517 U.S. 456, 463 (1996); see also id. at 462 ("sword" claims "challenging the prosecution's conduct of the case" not covered by Rule 16).
Second, the district court did not err in declining to order the production of government surveillance notes and witness interview reports. These documents were neither discoverable "statements" under the Jencks Act, 18 U.S.C. § 3500, because they were not signed or otherwise adopted by witnesses, nor recordings or verbatim transcriptions of interviews. See United States v. Boshell, 952 F.2d 1101, 1104-05 (9th Cir. 1991) (interview reports not Jencks Act material); United States v. Bernard, 623 F.2d 551, 558 (9th Cir. 1979) (same for surveillance notes). The district court also properly reviewed the documents in camera before declining to order their production.
Third, the prosecution did not engage in improper vouching during closing argument. The first statement that Alba challenges neither contained personal assurances of any witness' veracity nor explicitly referred to information not presented to the jury. See United States v. Daas, 198 F.3d 1167, 1178 (9th Cir. 1999). The statement is best understood in context as a summation of the prosecutor's immediately preceding remarks about the conduct of the government's investigation. The second challenged statement actually brought to light negative information about a government witness, namely that he was a convicted drug trafficker, and hence was not vouching.
Fourth, there was sufficient evidence to convict Alba on the continuing criminal enterprise charge because the government did prove, as required by the statute, that he supervised at least five people. Alba himself said in his post-arrest statement that he supervised five people. Moreover, Chavez, whom Alba now claims he did not supervise, explicitly identified Alba as his "boss" at the Ecstasy laboratory. It is immaterial that Forrester, not Alba, generally communicated with Chavez because of his better Spanish. See United States v. Otis, 127 F.3d 829, 834 (9th Cir. 1997).
Fifth, there was no Fifth or Sixth Amendment violation when Alba's sentence was enhanced on the basis of facts (his prior convictions) that were not found by the grand jury. Alba's Sixth Amendment argument is explicitly foreclosed by Supreme Court and circuit precedent. See United States v. Booker, 543 U.S. 220, 244 (2005) ("Any fact (other than a prior conviction) . . . must be admitted by the defendant or proved to a jury beyond a reasonable doubt.") (emphasis added); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir. 2005). Similarly, we held in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir. 2001), that the Fifth Amendment is not violated when a defendant's sentence is enhanced on the basis of prior convictions "even though he [does] not admit to having committed them, and even though the government neither alleged them in the indictment nor proved them at trial beyond a reasonable doubt."
Sixth, the district court did not abuse its discretion in denying Alba's request to subpoena recordings of phone conversations between cooperating co-defendants and their attorneys. The district court gave several cogent reasons for its denial: there was an inadequate showing that the recordings would reveal any improper government activity, the issue of the co-defendants' deals with the government had been fully explored at trial and the subpoena request was overly broad and untimely. We need not decide whether the district court correctly found that the phone conversations were privileged. Even if they were not privileged, the court did not abuse its discretion in denying Alba's subpoena request because the other reasons the court gave for its denial were legitimate and persuasive.
Finally, we agree with both parties that Alba cannot validly be convicted of both engaging in a continuing criminal enterprise and the predicate offense of conspiracy to manufacture and distribute Ecstasy. See United States v. Medina, 940 F.2d 1247, 1253 (9th Cir. 1991). We therefore vacate Alba's conviction and sentence for the predicate conspiracy offense, thus leaving Alba's prison term unaffected but reducing his supervised release term from six to five years. There is no reason to remand to the district court, as Alba asks us to do, because we are already granting Alba the relief that he seeks, namely the vacation of the conviction carrying the higher sentence.
Forrester's conviction and sentence are REVERSED. Alba's convictions and sentences are AFFIRMED IN PART AND REVERSED IN PART.