U.S. v. Ross

372 F.3d 1097

UNITED STATES of America, Plaintiff-Appellee, v. Ricky D. ROSS, Defendant-Appellant.

No. 02-50226.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2003.

Filed June 21, 2004.

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Frank J. Ragen and Julie A. Blair, San Diego, CA, for the defendant-appellant.

Carol C. Lam, United States Attorney; Roger W. Haines, Jr., Assistant United States Attorney, Chief of Appellate Section, Criminal Division; Mark R. Rehe, Assistant United States Attorney, San Diego, CA, for the United States.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-95-0353-MLH.

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

RESTANI, Judge:

INTRODUCTION

Defendant Ricky D. Ross was convicted of drug trafficking offenses in 1996. After his first appeal and extensive post-remand proceedings, he now appeals from the district court's denial of his motions to dismiss the indictment or order a new trial, arguing that government misconduct prejudiced his entrapment defense. He also appeals from the district court's post-remand sentencing order, alleging several errors. We affirm the district court's denial of his motions because he was not prejudiced by the government's behavior, including its failure to disclose that a key informant was rewarded with illegally-obtained permanent resident status. We also affirm the sentencing order as a proper exercise of the district court's discretion.

FACTS

Ross was arrested along with codefendants Leroy Brown and Curtis James in a reverse drug sting on March 2, 1995. The codefendants provided roughly $170,000 in cash to undercover Drug Enforcement Agency Special Agent Pedro Pena and were in turn allowed to take possession of a Chevy Blazer containing 100 kilograms of cocaine. Appearing with Agent Pena at the deal was undercover informant Oscar Danilo Blandon, a convicted drug trafficker who received significant benefits from the government in return for his cooperation in the arrest and prosecution of the codefendants.

On May 4, 1995, Ross filed a motion with the district court requesting disclosure of impeaching information regarding the confidential informant, later revealed to be Blandon. On June 5, 1995, the district court ordered the government to provide exculpatory testimony regarding Blandon to the defense as soon as possible but no later than July 29, 1995. In response, the government provided Blandon's Alien file ("A-File") to the district court for in camera review. The court then turned selected documents over to the defense. United States v. Brown, 163 F.3d 608, 1998 WL 650266, at *1 (9th Cir.1998) (unpublished table decision) ("Ross I"). The government did not disclose, however, the specific circumstances surrounding Immigration and Naturalization Service Agent Robert Tellez's procurement of permanent resident status for Blandon, which would have revealed that Tellez violated the law in processing Blandon's file.

Blandon testified as a key government witness at Ross's March 1996 jury trial. The district court instructed the jury to accept Blandon's testimony only with "great caution" and to consider it in light of the substantial benefits he received from the government in return for his cooperation. Mem. Op. (S.D.Cal. Mar. 20, 2002) ("Mem.Op."). Nevertheless, Ross was convicted of conspiracy to possess cocaine with intent to distribute under 21 U.S.C. §§ 846 and 841(a)(1), possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and criminal forfeiture under 21 U.S.C. § 843(a). The district court denied Ross's first new trial motion, which alleged due process violations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and outrageous government conduct. Mem. Op. & Order (S.D.Cal. Nov. 21, 1996).

Ross appealed his conviction and sentence. He argued in part that the government violated its Brady obligations in failing to disclose parts of Blandon's INS A-file along with information depicting Blandon as a notorious drug dealer. He also alleged the government acted outrageously by targeting him for prosecution and by using Blandon, whom Ross linked to the CIA, in that effort. In Ross I, we rejected these and other contentions but did find that the district court erred in sentencing Ross under the federal three strikes law. 1998 WL 650266, at *1-*2. We remanded Ross's case to the district court for resentencing on the basis of one predicate offense. Id. at *2.

After oral argument but before we issued our decision in Ross I, the Justice Department's Inspector General issued a public report on his investigation into allegations that the CIA was protecting the drug trafficking activities of Nicaraguan Contra rebels in the United States. See Office of the Inspector General, U.S. Dep't of Justice, The CIA-Contra-Crack Cocaine Controversy: A Review of the Justice Department's Investigations and Prosecutions (Dec.1997) (released to the public July 22, 1998) ("OIG Report"). The OIG Report responded to a series of stories in the San Jose Mercury News that raised questions as to why Blandon, a Nicaraguan citizen who fled his country when the Sandinistas took power, had received such a lenient sentence for his drug trafficking activities, while Ross had been sentenced initially to a life term by the district court. As part of its inquiry, the OIG Report examined the circumstances surrounding the issuance of a green card to Blandon.

Blandon entered the United States in June 1979 and applied for political asylum in February 1980. The INS granted him asylum in 1985, but did not document that action until 1988. In September of that year, Blandon applied for legal permanent resident ("LPR") status.¹ The application form required him to list any criminal activities or convictions, but Blandon, not surprisingly, chose not to disclose his active involvement in the narcotics trade. Mem. Op. at 4. Although Blandon would plead to a drug trafficking offense in 1992,² he did not have a criminal record at the time of his initial application for LPR status. Consequently, the INS received no disqualifying information during the standard FBI criminal background check.³ Mem. Op. at 4-5.

Blandon received a green card in October 1994 despite his felony drug trafficking conviction. The OIG Report concluded that the issuance of Blandon's green card was without legal authority and, therefore, improper. OIG Report at 93. This unlawful adjustment of his resident status resulted from the intervention of INS Agent Tellez. Mem. Op. at 13-14; OIG Report at 93. Tellez intervened on behalf of the OCDETF in 1994 so that Blandon could travel internationally in connection with his activities as an undercover informant.⁴ Mem. Op. at 12-13. Although lawful procedural alternatives existed to allow Blandon to remain in the United States, if not travel abroad,⁵ Tellez addressed Blandon's need for travel documentation by helping him obtain the green card. Id. at 13-14; OIG Report at 93. Neither the district court nor the OIG Report found evidence that any government agent directed Tellez to obtain a green card or otherwise violate U.S. immigration law in arranging for safe international travel for Blandon. Mem. Op. 13; OIG Report at 95. Having apparently acted on his own, Tellez was demoted through INS disciplinary procedures. Mem. Op. at 17. The Justice Department determined that his conduct was not prosecutable as a criminal matter. OIG Report at 95 n.26.

Tellez's improprieties were eventually brought to the attention of the U.S. Attorney's Office for the Southern District of California ("USAO"), which prosecuted Ross. In November 1997, several months before oral argument in Ross I, the OIG provided a draft of its report to the USAO. OIG Report, Executive Summary at 3. On December 8, 1997, the USAO and other agencies objected to release of the report on the grounds that it would endanger Blandon in his ongoing undercover work and hamper a DEA investigation. Id. These concerns ultimately delayed the report's release until July 22, 1998, though its contents remained unchanged from December 17, 1997. Id., Executive Summary at 2. In the meantime, the USAO argued Ross I before us on April 7, 1998, without informing us that a member of the OCDETF likely illegally obtained a green card for Blandon.

After the sentencing issue had been remanded to the district court, Ross seized upon the OIG Report and moved for (1) dismissal of the indictment or a new trial based on Brady violations, as well as (2) dismissal for outrageous government conduct pursuant to the court's supervisory powers. To support his Brady claims, Ross argued that he was prejudiced by his inability to fully expose to the jury the benefits Blandon received in exchange for his role in the case against Ross. Ross centered his outrageous government conduct claim on the illegal manner in which INS Agent Tellez obtained Blandon's permanent resident status and the prosecution's failure to disclose this information.

In response, the district court conducted lengthy evidentiary hearings. At the conclusion of the hearings, the district court denied Ross's motions. The court concluded that none of the facts uncovered by the hearings — including the illegal manner in which Tellez procured Blandon's permanent resident status — would have altered the jury's guilty verdict or enabled Ross to establish an entrapment defense. Mem. Op. at 23. Because the court found Ross was not prejudiced by the government's behavior, it also declined to exercise its supervisory powers. Id. at 28. The district court later re-sentenced Ross to 240 months in prison and six years supervised release according to United States Sentencing Guidelines. Sentencing Order (S.D.Cal. May 3, 2002). Ross appeals.

DISCUSSION

I. ...