United States v. Ruben Zuno-Arce

Citation: 44 F.3d 1420Docket: 03-57038

Court: Court of Appeals for the Ninth Circuit; February 13, 1995; Federal Appellate Court

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Ruben Zuno-Arce was convicted of conspiracy to kidnap, torture, interrogate, and murder DEA Agent Enrique Camarena-Salazar, alongside other related charges, as part of the Guadalajara Narcotics Cartel's operations. The case arose following Camarena's successful seizures of narcotics, which led to his violent kidnapping in February 1985, subsequent two-day torture, and murder by cartel members seeking information about their activities. 

In his appeal, Zuno-Arce alleged prosecutorial misconduct, claiming false evidence was presented, and sought dismissal of the indictment or a new trial. However, he did not raise this issue during the trial, limiting the appeal's review to plain error. Zuno-Arce had two trials; the first resulted in a conviction, but a new trial was granted due to improper prosecutorial comments. The key witnesses in the second trial were Godoy and Lopez, whose testimonies regarding Zuno-Arce's involvement in cartel meetings conflicted with prior witness Cervantes. 

The appellate court upheld the district court's decision to deny Zuno-Arce's motion for a new trial, finding that the discrepancies in witness testimony were for the jury to resolve. The jury could reasonably believe Godoy and Lopez' accounts, and Zuno-Arce's attorneys effectively cross-examined these witnesses regarding their memories, which allowed the jury to assess their credibility. The court affirmed that credibility determinations are the jury's responsibility and the district court acted within its discretion.

The claim of prosecutorial misconduct hinges on whether the prosecutor knowingly presented false evidence, which could warrant a new trial or dismissal. Zuno-Arce has not substantiated his assertion of misconduct, as he relies solely on inconsistencies in witness testimonies between two trials. These discrepancies do not conclusively demonstrate that the prosecutor was aware of any falsehoods. The argument overlooks the reality that variations in testimony can result from errors in memory rather than intentional deception. The court emphasizes that the prosecutor's knowledge of witness credibility is limited to what is presented in court. Zuno-Arce failed to provide sufficient evidence of misconduct, and such claims only merit a retrial if they materially compromise the trial’s fairness. Under a plain error review, due to the failure to raise this issue earlier, the court finds no grounds for vacating the district judge's denial of a new trial.

Regarding the RICO violations, Zuno-Arce contends that the prosecution did not demonstrate he was a member of the cartel or acted to maintain his position within it. He cites the lack of knowledge from various witnesses about his involvement, including a DEA agent who did not recognize his voice in intercepted communications. However, testimony from Godoy indicates that Zuno-Arce participated in cartel meetings where he suggested kidnapping and killing DEA Agent Camarena, directly implicating him in the cartel's violent activities.

Zuno-Arce was implicated in a cartel operation based on direct evidence indicating his involvement. He referred to the cartel as 'us' and was present during a conversation where Rafael Caro-Quintero demanded information about the DEA. Zuno-Arce attempted to pacify Caro-Quintero, suggesting that the governor was already gathering necessary information, which implied his significant role within the cartel. A jury could reasonably conclude he was a member based on this evidence, which was viewed favorably for the prosecution.

Zuno-Arce contested the sufficiency of evidence against him, citing witnesses who did not mention him and a radio operator's failure to identify his voice. However, this only suggested that rational jurors could infer his innocence, not that the evidence was insufficient to support a conviction.

Additionally, Zuno-Arce owned a property where DEA Agent Camarena was tortured. He sold the house shortly before the kidnapping, which the government argued was a sham transaction to distance him from the crime. Zuno-Arce sought permission to take depositions of four witnesses in Mexico to prove the sale was legitimate. However, the district judge denied this request, determining Zuno-Arce failed to show the witnesses' unavailability, the relevance of their testimony, and justification for the late request. The court noted Zuno-Arce's attorney provided an affidavit claiming that a Mexican real estate agent would testify to the legitimacy of the sale, but none of the witnesses were willing to testify in the U.S. due to fear from prior arrests related to the case.

The affidavit indicates that the nephews of Mr. Zuno-Arce have declined to discuss his case, refusing to travel to the United States to testify or assist in his defense, including refusing to meet with defense counsel. Another potential witness, unrelated to the house sale, also declined to travel to provide testimony that could impeach Godoy's claims regarding meeting details. None of the witnesses expressed willingness to testify at a deposition, and their refusal to cooperate was firmly stated. Despite this, the district judge determined that such evidence was peripheral, as Godoy had already been heavily impeached independently, and ruled that exceptional circumstances did not exist to justify taking depositions under Rule 15(a) of the Federal Rules of Criminal Procedure.

Zuno-Arce claimed a Brady violation, alleging the government withheld exculpatory interviews from the DEA and FBI until after the evidence was closed. To establish a Brady violation, a defendant must demonstrate that material exculpatory evidence was withheld, and such evidence must be significant enough to potentially alter the trial's outcome. The court reviews the denial of a new trial for alleged Brady violations de novo. The interviews in question involved a former Mexican police agent discussing the Camarena murder; notably, Zuno-Arce's name was not mentioned in either interview.

Zuno-Arce argued that the reports were exculpatory because they named others present during the murder, implying his absence. However, this inference was deemed too weak to constitute exculpatory evidence. The district judge's reliance on United States v. Bryan was deemed appropriate, establishing that not all witness statements that do not implicate a defendant should be classified as exculpatory.

The district judge noted that the torture occurred over two days, and the witness statements did not definitively indicate whether Zuno-Arce was present during that time. The judge reasoned that Zuno-Arce could be held criminally responsible for planning the murder even if he was not physically present. The 1991 DEA interview was deemed non-exculpatory, thus negating any Brady violation. In contrast, the FBI's 1992 interview was considered exculpatory because it suggested that Camarena's torture was motivated by personal reasons, conflicting with the government's theory centered on his interference with drug operations. This alternate motive could weaken the case against Zuno-Arce. Despite the potential exculpatory nature of the FBI statement, the court acknowledged the uncertainty regarding its impact. 

Prosecutors received the exculpatory report on December 10 but failed to share it with the defense promptly, which raised the judge's suspicion about the timing, particularly as it was submitted under seal only after the acquittal judgment for Dr. Alvarez. The judge expressed concern that the information might not have surfaced without the acquittal, suggesting possible misconduct regarding the withholding of evidence.

Concerns were raised regarding the prosecution's handling of evidence in the case against Zuno-Arce, particularly involving a co-defendant physician accused of complicity in torture. Notably, the government prosecuted a different physician than the one referenced in an FBI statement from September 9, 1992. After the prosecution rested its case, it filed statements under seal without providing them to the defense, which occurred just before the court granted a motion for judgment of acquittal for the doctor. The timing of the sealed filing was critical, as it limited the defense's ability to make informed decisions about witness testimony and strategy. 

Even if the prosecution did not intentionally withhold evidence, the responsibility for disclosing exculpatory materials falls on the government as a whole. The practice of withholding evidence could potentially violate the Brady doctrine, which protects a defendant's right to access exculpatory evidence. Prosecutors cannot claim ignorance of materials held by investigative agencies involved in the case, as they are considered to have access to all relevant documents within federal agencies. 

The late disclosure of materials led the defense to seek a mistrial, which was denied, although the judge allowed for post-trial motions. The defense subsequently moved for a new trial, raising the issue of whether earlier access to the withheld materials could have changed the trial's outcome. The court needed to evaluate if the nondisclosure created a reasonable probability that the verdict would have differed if the evidence had been timely provided.

Judge Rafeedie evaluated the evidence in accordance with the standard established in Bagley, assessing whether there was a reasonable probability that the outcome would have been different if certain evidence had been disclosed to the defense. A "reasonable probability" is defined as one that undermines confidence in the trial's outcome. In the related case of Hendricks, alibi evidence deemed improbable by other evidence did not meet this threshold. Similarly, Judge Rafeedie found no reasonable likelihood that the outcome would have changed had the DEA interview evidence been disclosed to the defendant.

In denying the motion for a new trial, the judge highlighted that, despite the court's effort to provide the defendant with discovery, no new evidence had been presented by the defense that could alter the case's outcome. The defendant failed to demonstrate how the withheld evidence would have impacted his trial, relying largely on speculation. Judge Rafeedie’s analysis was thorough, concluding that the defense could not substantiate its claims with the DEA agent's statement regarding third-party assertions about the motivations behind a crime.

The defense had not utilized the reports to generate admissible evidence in the months following the discovery. Notably, the defense had prior access to the names of potential witnesses, and the judge determined that the failure to disclose additional information did not adversely affect the case. Regarding potential witnesses who could attest to the defendant’s absence during the alleged torture, the judge deemed it highly unlikely that such testimony could be obtained, and even if it were, it would likely be cumulative and not impactful.

The defense sought to demonstrate the significance of late-disclosed evidence by filing a motion for reconsideration, which included an affidavit from a Guadalajara restaurant proprietor. This affidavit claimed that on the day of his kidnapping, Agent Camarena had lunch with Sara Cosio and was notably affectionate towards her. However, the district judge dismissed the argument that this evidence could have reasonably altered the trial's outcome, citing the existence of a graphic torture tape recorded during Camarena's interrogation. The judge concluded that even if a competent witness testified regarding the alleged relationship with Sara Cosio, it was highly improbable that jurors would disregard the detailed evidence of the two-day torture, which focused solely on extracting information from Camarena about his associates and drug-related activities. The judge emphasized the improbability that jurors would accept that Camarena's kidnapping and murder stemmed from revenge related to his involvement with Cosio, given the overwhelming evidence presented at trial.

Godoy and Lopez testified that the motive behind Camarena's kidnapping was his knowledge of cartel activities, supported by tape recordings of his torture and interrogation. These recordings indicated that the cartel sought information on DEA knowledge, and Camarena was not questioned about a third party, Sara Cosio. The district judge concluded that the tapes established the kidnapping motive, ruling that any testimony challenging this finding could not undermine the verdict. He assessed whether evidence disclosure could have altered the trial's outcome, determining it could not. Additionally, Macias-Barajas, who testified in the first trial about government pressure to testify against Zuno-Arce, did not testify in the second trial. Zuno-Arce's request to read Macias-Barajas's transcript was denied as irrelevant, and the judge's decision was deemed not an abuse of discretion since the inference of pressure on Godoy and Lopez from Macias-Barajas was too weak. The ruling was affirmed.