United States v. Holler ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-50129
Plaintiff-Appellee, D.C. No.
v.  CR-01-00018-
PETER JAMES HOLLER, VAP-3
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
December 9, 2004—Pasadena, California
Filed June 13, 2005
Before: Stephen Reinhardt, Cynthia Holcomb Hall, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Hall
6929
6932 UNITED STATES v. HOLLER
COUNSEL
Diane E. Berley, West Hills, California, for the defendant-
appellant.
Thomas P. O’Brien and Elizabeth M. Fishman, Assistant
United States Attorneys, Los Angeles, California, for the
plaintiff-appellee.
OPINION
HALL, Senior Circuit Judge:
Defendant Peter James Holler appeals his convictions for
conspiracy to possess cocaine with the intent to distribute and
attempted possession of cocaine with the intent to distribute,
in violation of 21 U.S.C. §§ 846 and 841(a)(1). We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)
and affirm in part.
I. BACKGROUND
This case arises out of a “reverse sting” operation in which
defendant Peter James Holler conspired with co-defendants
Nelson Palacio and Gustavo Estrada to purchase a large
amount of cocaine from a confidential informant (“CI”) work-
ing with the Drug Enforcement Administration (“DEA”).
In January of 2001, the CI informed DEA agent Travis
Lavigne that he knew of someone who wanted to purchase
large amounts of cocaine in Los Angeles, California. On Feb-
UNITED STATES v. HOLLER 6933
ruary 2, 2001, the CI told Agent Lavigne that he had received
a telephone call from a man named Chepe (co-defendant Pala-
cio), who said he was coming to Los Angeles. Three days
later, with Agent Lavigne’s permission, the CI picked up
Palacio from the airport and drove him to a hotel in Torrance,
California. Later that day, the CI returned to the hotel where
Palacio was staying to discuss the deal. Palacio told the CI
that his client was arriving soon and that the client was pre-
pared to purchase 100 kilograms of cocaine.
The next day, the CI returned to the hotel and met Palacio’s
partner, co-defendant Estrada. Palacio and Estrada told the CI
that they had a client coming in from Canada, and that the cli-
ent wanted to check out the cocaine before purchasing it. The
CI told Palacio and Estrada that he had 1,200 kilograms of
cocaine for sale.
On February 7, 2001, while the CI was wearing a wire,
Estrada told the CI that the client would be arriving that night.
That night, the CI received a call from Palacio telling him that
the client had arrived, and setting up a meeting for the follow-
ing morning.
The next morning, when the CI arrived at the hotel, Palacio
and Estrada introduced him to defendant Peter James Holler.
The CI then drove Estrada and Holler to a storage facility in
Riverside, California, where they were met by undercover
Deputy Sheriff Gregory Parra. In what is known as a “flash,”
Deputy Parra and the CI showed Holler and Estrada the
cocaine. Holler put on a pair of rubber gloves and cut and
sampled several individually packaged kilograms of cocaine.
He then resealed the samples with duct tape. At trial, the gov-
ernment introduced pictures of Holler and Estrada sampling
the cocaine at the storage facility. Within 15 or 20 minutes of
arriving at the storage facility, Holler, Estrada and the CI left
and headed back to the hotel.
6934 UNITED STATES v. HOLLER
Later that night, Palacio called the CI to discuss the price
of the cocaine. The CI told Palacio that he would sell the
cocaine for $13,000 per kilogram.
The next day, February 9, 2001, the CI again met with
defendant Holler. At the meeting, Holler gave the CI a sample
of cocaine to demonstrate the type of high quality cocaine he
was looking to purchase. Subsequent testing by the DEA
established that the sample was 5.4 grams of 94% pure
cocaine. In a recorded conversation, Holler and the CI then
negotiated the purchase of 50 kilograms of cocaine.
CI: How much (unintelligible) you gonna
need?
Holler: Well, I bought 20 of these [referring to
a one-kilogram brick of cocaine] last
night, okay, now I got more money
coming into town today, so what, what
I’m thinking, probably I’m gonna pay
for about 30 or 40 cash, okay?
CI: Okay.
Holler: And then, so if I buy 30 cash then I’m
gonna want to take 15 credit, okay?
CI: I’ll give you 20 credit.
Holler: Twenty credit? Okay.
The next day, the CI returned to Palacio’s hotel room
where Holler laid packages of money on the bed. Holler put
the money in a bag and gave the bag to Palacio, telling the CI
that there was $220,000 for a partial payment for the cocaine.
According to the CI, after Holler left the room, Palacio took
$40,000 and told the CI not to say anything to Estrada.
UNITED STATES v. HOLLER 6935
Two days later, on February 12, 2001, the CI spoke with
Palacio, who indicated that Holler was ready and that he
wanted to see more of the cocaine. The CI informed him that
if he wanted to see more of the merchandise, he had to come
up with the rest of the money.
Holler, Estrada, Palacio and the CI met later that night in
the lobby of the Hilton hotel in Ontario, California, to com-
plete the transaction. When Holler arrived, the CI told him to
get the money. Holler left briefly and returned with a rolling
suitcase containing approximately $130,000, which he gave to
the CI. The CI said he would go drop off the money in his car,
fill the suitcase with cocaine, and would then return it to Hol-
ler. Once the CI left, DEA agents arrested Holler, Estrada and
Palacio. Also seized from Holler’s vehicle after the arrest
were two drug ledgers indicating types and prices of mari-
juana.
II. DISCUSSION
A. Jurisdiction
[1] Holler argues that the district court lacked jurisdiction
under 21 U.S.C. §§ 841(a) and 846 because Holler never had
possession of the cocaine and had no intent to distribute in the
United States. Section 841(a) provides that, “it shall be
unlawful for any person knowingly or intentionally . . . (1) to
. . . possess with intent to . . . distribute, . . . a controlled sub-
stance.” 21 U.S.C. § 841(a). Section 846 provides that, “[a]ny
person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same penal-
ties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.” 21 U.S.C.
§ 846. Whether a district court has jurisdiction is reviewed de
novo. United States v. Penna, 319 F.3d 509, 511 (9th Cir.
2003).
[2] Holler cites cases from the First and Fifth Circuits hold-
ing that courts lack jurisdiction where the defendant was
6936 UNITED STATES v. HOLLER
found with contraband on the high seas but never intended to
distribute that contraband in the United States. See United
States v. Hayes, 653 F.2d 8, 15 (1st Cir. 1981) (holding that
“21 U.S.C. § 841(a) . . . does not apply to American vessels
on the high seas unless the ‘intent to distribute’ is an intent to
distribute in the United States”); see also United States v.
Baker, 609 F.2d 134 (5th Cir. 1980).
However, these cases deal with defendants who were
apprehended outside of the United States. In Baker and
Hayes, the fact that the defendants intended to distribute con-
traband in the United States was only relevant insofar as it
supplied a jurisdictional nexus that might have otherwise been
lacking. See United States v. Muench, 694 F.2d 28, 33 (9th
Cir. 1982) (discussing the extraterritorial jurisdiction in Hayes
and Baker).
[3] This case, on the other hand, does not involve extraterri-
torial jurisdiction. Holler was arrested in Ontario, California,
for conspiracy to possess cocaine with the intent to distribute
and attempted possession of cocaine with the intent to distrib-
ute. Where, as here, the criminal acts are committed in the
United States, the fact that the defendant intends to distribute
contraband outside of the United States does not divest this
court of jurisdiction. United States v. Gomez-Tostado, 597
F.2d 170, 172-173 (9th Cir. 1979).
[4] In Gomez-Tostado, the defendant was stopped in San
Diego, California, en route to Mexico with five kilograms of
heroin in his car. On appeal to the Ninth Circuit, Gomez-
Tostado argued that the district court lacked jurisdiction under
21 U.S.C. § 841(a) because he intended to distribute the her-
oin in a foreign country. Id. at 172. The court rejected Gomez-
Tostado’s argument, holding that “we find nothing in the leg-
islative history or language of section 841(a)(1) that suggests
any congressional intent to limit the applicability of the stat-
ute to defendants whose intended distribution point is in this
country.” Id.
UNITED STATES v. HOLLER 6937
[5] Holler argues that Gomez-Tostado is inapplicable
because the defendant in that case actually possessed contra-
band, whereas Holler was never in possession of the govern-
ment supplied cocaine. However, Holler was convicted of
conspiracy to possess cocaine and attempted possession of
cocaine, and neither of these statutes require actual posses-
sion.
[6] Accordingly, we conclude that the district court had
jurisdiction.
B. Outrageous Government Conduct
Holler argues that the district court erred by not dismissing
his indictment for outrageous government conduct because
(1) the CI had a history of misconduct as an informant and the
DEA was aware of the prior misconduct, (2) the CI engaged
in misconduct in this case, including the theft of drug money,
and (3) the government ratified the CI’s behavior. A claim
that the indictment should be dismissed because the govern-
ment’s conduct was so outrageous as to violate due process is
reviewed de novo. United States v. Gurolla, 333 F.3d 944,
950 (9th Cir. 2003). The evidence is viewed in the light most
favorable to the government and findings of fact underlying
the dismissal are reviewed under a clearly erroneous standard.
Id.; see also United States v. Barrera-Moreno, 951 F.2d 1089,
1091 (9th Cir. 1991).
[7] “Outrageous government conduct is not a defense, but
rather a claim that government conduct in securing an indict-
ment was so shocking to due process values that the indict-
ment must be dismissed.” United States v. Montoya, 45 F.3d
1286, 1300 (9th Cir. 1995). To meet this high standard, the
“governmental conduct must be so grossly shocking and so
outrageous as to violate the universal sense of justice.”
Barrera-Moreno, 951 F.2d at 1092 (quotations omitted).
Here, the CI’s conduct was neither attributable to the govern-
ment, nor was it “so excessive, flagrant, scandalous, intolera-
6938 UNITED STATES v. HOLLER
ble, and offensive as to violate due process.” United States v.
Edmonds, 103 F.3d 822, 825 (9th Cir. 1996) (quotations omit-
ted). Moreover, as we noted in United States v. Simpson, 813
F.2d 1462, 1470 (9th Cir. 1987), “[i]t is unrealistic to expect
law enforcement officers to ferret out criminals without the
help of unsavory characters.”
[8] Accordingly, we find that the misconduct complained
of in this case, even if proved, does not rise to the level
required to establish outrageous government conduct.
C. Right to Present a Defense, and Brady Error
Holler argues that he was denied his right to present a
defense under Davis v. Alaska, 415 U.S. 308 (1974), because
the district court failed to enforce its order to produce the CI’s
IRS tax records. Without these records, he argues, the defense
was deprived of the opportunity to impeach the CI’s credibil-
ity. Holler also argues that the failure to produce the CI’s tax
records was a Brady error, requiring reversal.
We review de novo whether a limitation on cross examina-
tion violated the defendant’s right of confrontation. United
States v. Bensimon, 172 F.3d 1121, 1128 (9th Cir. 1999).
“The district court, however, has considerable discretion in
restricting cross-examination, and this court will find error
only when that discretion has been abused.” Id. Alleged
Brady violations are reviewed de novo. United States v. Dan-
ielson, 325 F.3d 1054, 1074 (9th Cir. 2003).
[9] A limitation on cross examination “does not violate the
Confrontation Clause unless it limits relevant testimony and
prejudices the defendant, and denies the jury sufficient infor-
mation to appraise the biases and motivations of the witness.”
Bensimon, 172 F.3d at 1128 (quotations and citations omit-
ted). A Brady violation has three components: (1) the evi-
dence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; (2) the
UNITED STATES v. HOLLER 6939
evidence must have been suppressed by the State, either will-
fully or inadvertently; and (3) prejudice must have ensued.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). “[S]trictly
speaking, there is never a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable proba-
bility that the suppressed evidence would have produced a
different verdict.” Id. at 281.
[10] Holler’s claims fail because the jury was presented
with sufficient evidence to appraise the motivations of the CI,
and any error in the lack of the CI’s IRS records was not prej-
udicial. Given the other impeaching evidence introduced
regarding the CI and the substantial evidence against Holler,
including photographs of him testing the cocaine, recordings
of purchase negotiations and the payment of over $350,000
towards the purchase of cocaine, any error with respect to the
lack of the IRS records was harmless. See United States v.
Miguel, 111 F.3d 666, 671 (9th Cir. 1997) (holding that the
court must “determine whether the error was harmless in light
of the importance of the witness’s testimony in the entire
case, the extent of cross-examination otherwise permitted, and
the overall strength of the prosecution’s case”).
D. Prior Act Evidence
Over Holler’s objection, the district court admitted evi-
dence of three prior illegal drug transactions involving Holler.
The district court’s decision to admit evidence pursuant to
Federal Rules of Evidence 403 and 404(b) is reviewed for
abuse of discretion. United States v. Rubio-Villareal, 927 F.2d
1495, 1502 (9th Cir. 1991), vacated in part and remanded on
other grounds, 967 F.2d 294 (9th Cir. 1992) (en banc). The
issue of whether the evidence falls within the scope of Rule
404(b) is reviewed de novo. Id.; see also United States v.
Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993).
[11] According to the four-part test applied in this circuit,
prior act evidence is admissible if (1) it proves a material ele-
6940 UNITED STATES v. HOLLER
ment of the charged offense; (2) the prior act is not too remote
in time; (3) the evidence is sufficient to support a finding that
the defendant committed the act; and (4) in cases where
knowledge and intent are at issue, the act is similar to the
offense charged. United States v. Vizcarra-Martinez, 66 F.3d
1006, 1013 (9th Cir. 1995). Additionally, Federal Rule of Evi-
dence 403 requires the district court to balance the probative
value of the evidence against its prejudicial effect. Arambula-
Ruiz, 987 F.2d at 604.
[12] To knowingly and intentionally possess contraband
with the intent to distribute is a specific intent offense. See 21
U.S.C. § 841(a)(1). As the court held in Arambula-Ruiz,
defendant’s prior conviction for possession of contraband
with the intent to distribute is relevant to a material element
of conspiracy to possess contraband with the intent to distrib-
ute and attempted possession of contraband with the intent to
distribute, “because it tends to show knowledge.” Arambula-
Ruiz, 987 F.2d at 603; see United States v. Schmidt, 947 F.2d
362, 367 (9th Cir. 1991) (knowledge of the objective of the
conspiracy is an material element of any conspiracy convic-
tion).
[13] Additionally, any error with respect to the admission
of prior act evidence was harmless for two reasons. First, the
judge gave a limiting instruction. See, e.g., United States v.
Santa-Cruz, 48 F.3d 1118 (9th Cir. 1995); Arambula-Ruiz,
987 F.2d at 604. Second, there was an abundance of substan-
tial and direct evidence against Holler, including photographs
of him testing the cocaine, recordings of purchase negotia-
tions and the payment of over $350,000 towards the purchase
of cocaine.
[14] Accordingly, we conclude that the district court did
not abuse its discretion by allowing evidence of prior cocaine
trafficking involving the defendant.
UNITED STATES v. HOLLER 6941
E. Sentencing Challenges
[15] Because Holler did not challenge his sentence on Sixth
Amendment grounds in the district court, we grant a limited
remand pursuant to United States v. Ameline, No. 02-30326,
slip op. at 6368-71 (9th Cir. June 1, 2005) (en banc).
AFFIRMED IN PART AND REMANDED.