United States v. Colette , 397 F. App'x 292 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-30127
Plaintiff - Appellee, D.C. No. CR-05-00042-RRB
v.
MEMORANDUM *
JASON SCOTT COLETTE,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-30371
Plaintiff - Appellee, D.C. No. CR-05-00042-f-RRB
v.
JASON SCOTT COLETTE,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 08-30392
Plaintiff - Appellee, D.C. No. 4:05-cr-00042-RRB
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JASON SCOTT COLETTE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted July 28, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Defendant-Appellant Jason Colette appeals his jury convictions for
possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B), and distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). He also appeals from the administrative forfeiture of a jet ski and trailer,
and the criminal forfeiture of $38,848 in cash, following a jury trial. He raises
numerous issues on appeal, none of which have merit. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
The most serious issue is whether we must reverse because the government
violated the Jencks Act, 18 U.S.C. § 3500, by failing to timely produce (1) an
audio tape of a police interview with a confidential informant; (2) the grand jury
testimony of a federal agent; and (3) the handwritten notes the agent took during a
different interview with the informant. The government did not violate the Jencks
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Act when it failed to produce the audio tape of the informant’s police interview
during the criminal trial, because the tape was in the exclusive possession of state
authorities. See 18 U.S.C. § 3500(b) (requiring the government to produce any
statement of a witness “in the possession of the United States”); Beavers v. United
States, 351 F.2d 507, 509 (9th Cir. 1965) (Jencks Act did not apply to a recording
that was in the possession of state authorities).
The district court found no violation with respect to the grand jury
testimony, but the government now concedes its failure to supply Colette with the
agent’s grand jury testimony violated the Jencks Act. See 18 U.S.C. § 3500(b),
(e)(3). The government’s failure to turn over the agent’s notes of his interview
with the informant violated the Act as well. See United States v. Andersson, 813
F.2d 1450, 1459 (9th Cir. 1987) (“[U]nder the Jencks Act, an agent’s original
interview notes with the suspect or potential witness must be preserved or
produced.”).
The district court should have stricken the agent’s testimony from the record
of the criminal trial as a sanction for the government’s Jencks Act violations. See
18 U.S.C. § 3500(d); United States v. Cardenas-Mendoza, 579 F.3d 1024, 1031
(9th Cir. 2009). The court’s failure to do so, however, could not have made a
difference in the case and was therefore harmless. The agent’s testimony played
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only a limited role in Colette’s criminal trial and was primarily geared toward
proving the elements of the two firearm possession offenses of which Colette was
acquitted. To the extent his testimony related to drug trafficking crimes, there was
substantial evidence of Colette’s guilt independent of the agent’s testimony. See
Cardenas-Mendoza, 579 F.3d at 1032-33.
The government did not violate its obligations under Brady v. Maryland,
373 U.S. 83 (1963), when it failed to timely disclose to the defense the audio
recording of the first interview of the informant and the agent’s notes from the later
interview with the informant. These materials had little impeachment value, and
there is no reasonable probability they would have affected the result had the
government timely produced them. See United States v. Bagley, 473 U.S. 667, 682
(1985).
The district court properly denied Colette’s motions for a Franks hearing.
Colette did not make any showing that the purported misrepresentations or
omissions by the state trooper during the warrant hearing before the state
magistrate were made deliberately or with reckless disregard for the truth. See
Franks v. Delaware, 438 U.S. 154, 155-56 (1978); United States v. Stanert, 762
F.2d 775, 780-81 (9th Cir. 1985). Had the state trooper corrected the alleged
misrepresentations and supplied the omitted facts, the magistrate still would have
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found probable cause for the issuance of the search warrant. See Franks, 438 U.S.
at 156; United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992).
The district court did not abuse its discretion in limiting cross examination.
The names of other drug dealers the informant used were not relevant, the
information’s probative value was outweighed by the informant’s substantial
interest in his own safety and the avoidance of self-incrimination, and the
limitation did not deprive the jury of sufficient information to assess the
informant’s credibility in light of the numerous other ways he was impeached. See
United States v. Larson, 495 F.3d 1094, 1103 (9th Cir. 2007) (en banc). The
confidential informant refused to answer questions related to his other sources of
drugs, and even if the refusal could be viewed as an invocation of his Fifth
Amendment rights, exclusion of his testimony was not warranted because the
answer to those questions affected only collateral matters. See Denham v. Deeds,
954 F.2d 1501, 1503 (9th Cir. 1992).
Before the administrative forfeiture of the jet ski and trailer, the DEA sent
notices of the seizure of this property by certified mail to Colette’s home address,
his jail address, and his attorney. These notices were “reasonably calculated under
all the circumstances” to apprise Colette of the pendency of the property’s
forfeiture. See Dusenbery v. United States, 534 U.S. 161, 168-73 (2002). The
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record further demonstrates that Colette and his attorney received these notices.
There is no basis for setting aside the administrative forfeiture of these items of
property under 18 U.S.C. § 983(e)(1), and there was no due process violation.
The district court also properly forfeited the $38,848 in cash. The evidence
was sufficient to establish that Colette used, or intended to use, the cash “in any
manner or part” to commit or facilitate his possession of cocaine with intent to
distribute. See 21 U.S.C. § 853(a)(2). The court did not abuse its discretion in
refusing to give Colette’s proffered instruction on criminal forfeiture; it related to a
“proceeds” theory of forfeiture on which the government did not rely during the
forfeiture trial.
AFFIRMED.
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