United States v. Valmer

CLIFTON, Circuit Judge,

dissenting:

An entrapment defense is usually tough to sell to a jury, particularly when the defendant has sold drugs to an undercover detective on seven separate occasions, and when the defendant doesn’t know the last name of the person who allegedly had so much influence over him so as to be able to get him to commit a crime he was not predisposed to commit. That was the predicament of defendant Randy Valmer in this case, and so Valmer may well have deserved the guilty verdict he received.

Valmer is still entitled to defend himself by arguing entrapment, though, and in this case it appears to me both that he was denied relevant information to which he was entitled and that the Government took unfair advantage of that during its closing argument. I thus respectfully dissent.

The heart of my disagreement with the majority centers on its appraisal of the second of the three factors we identified in United States v. Gonzalo Beltran, 915 F.2d 487, 489 (9th Cir.1990), for deciding whether to disclose information regarding a confidential informant (“Cl”): “the relationship between the defendant’s asserted defense and the likely testimony of the informant.” When Valmer first sought information about the Cl through a motion to compel, it may have been appropriate for the magistrate judge to deny the motion, because at that point the relevance of the Cl’s identity was not particularly clear. But by the time of trial, Valmer had settled on an entrapment defense. At trial, the detective involved testified that he did not know what sort of relationship the Cl had with Valmer, and Valmer took the stand to explain the inducements the Cl had offered him. At this point, when the *726 issue was once again raised, the relevance of the information was unmistakable, and the apparent reliance on the prior denial by the magistrate judge was erroneous. 8

Although the Government and the majority focus on the Cl’s absence from the six transactions for which Valmer was charged, by that point during the trial it was clear that Valmer’s defense theory related not to what happened during the six transactions, but to the alleged inducements by the Cl that came before, which, according to Valmer, led him to engage in the charged conduct. True, the cases where divulging Cl information has been deemed necessary involved informants who were witnesses to the alleged illegal transaction, see Roviaro v. United States, 353 U.S. 53 , 77 S.Ct. 623 , 1 L.Ed.2d 639 (1957); United States v. Miramon, 443 F.2d 361 (9th Cir.1971); Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir.1968), but this issue cannot be resolved by such a mechanical rule, Roviaro, 353 U.S. at 62 , 77 S.Ct. 623 (“We believe that no fixed rule with respect to disclosure is justifiable.”). As is made clear by the analysis used in these cases, the question is not simply whether the Cl was present at the transactions the Government elected to charge, but whether the informant’s testimony might be critically helpful to the defense in some way. See also United States v. Staufer, 38 F.3d 1103, 1109 (9th Cir.1994); Gonzalo Beltran, 915 F.2d at 489 ; United States v. Sai Keung Wong, 886 F.2d 252, 256-57 (9th Cir.1989). Because Valmer’s entrapment theory was premised on pre-transaction inducement, not on disputing what transpired during the charged transactions, the focus of the disclosure inquiry also shifted: the question became the extent to which the Cl could help the defense shed light on those earlier events.

Analyzing Valmer’s ability to make out each component of his entrapment defense makes it clear that information on the Cl was “relevant and helpful to the defense ... [and was] essential to a fair determination of a cause,” Roviaro, 353 U.S. at 60-61 , 77 S.Ct. 623 . As to inducement, the withholding of all information regarding the Cl left Valmer with only one way to get his story into the trial: through his own testimony. In taking this route, Valmer exposed himself to attacks on his credibility. The Government argued to the jury that they should not believe the “word of [a] convicted felon, an admitted drug addict, an admitted liar____[The defense] said on several occasions, the drug dealers don’t trust him, but [the defense] wants you to accept his word. I said there’s nothing that’s been demonstrated that warrants accepting what he said.” Without any information on the Cl, Valmer’s main avenue for corroborating his testimony as to the Cl’s behavior was foreclosed. See Miramon, 443 F.2d at 362 *727 (“Had [the informant] been known and testified, he might have corroborated [the defendant’s] story, at least in part.”).

But it is not the weakness of Valmer’s case on inducement that fully illustrates the extent to which the Government’s noncooperation undermined his defense — on inducement, Valmer at least had his own testimony. On the government agent requirement, Valmer had nothing. “Only a government official or agent can entrap a defendant.” United States v. Gurolla, 333 F.3d 944 , 954 n. 15 (9th Cir.2003). Yet, because Valmer did not have independent knowledge of the relationship between the Cl and the government, he didn’t have a version of those facts to present; he had nothing more to say on agency, an essential part of his defense, beyond noting the applicability of the title of “confidential informant.”

The vulnerability this gap created in Valmer’s defense was demonstrated by the argument made by the Government in closing that Valmer could not prove entrapment because he could not prove that the Cl, “James,” was a government agent. First, the Government affirmatively asserted in its initial closing argument that James was not a government agent. In the rebuttal portion of closing argument, the prosecutor went further:

[Defense counsel] also mentions James, where is James, the confidential informant. Well, of course, as the evidence [has] demonstrated, James was not involved in these drug buys. And importantly, he’s not a government agent. We know nothing about him. There’s nothing to support he was an agent. And in fact, the instructions [say] ... it is not enough for someone [to have] previously acted or been paid as an informant by the other state or federal agencies. We don’t know the status. We don’t know if he’s an agent or not, that’s the whole point. [He] couldn’t have been entrapped by James, we don’t know anything about James. And he definitely wasn’t involved in any of the six drug deals.

This argument highlights the gaping hole in Valmer’s entrapment defense, but it was hardly Valmer’s fault that he didn’t better inform the jury, because the Government had decided to keep Valmer in the dark.

The Government’s closing statements not only pointed out how critical James might have been to Valmer’s defense, but also compounded the problem. The majority describes the Government’s closing argument as being closer to the line than we like to see. I think that argument went well over the line.

The prosecutor’s initial affirmative statement that James was not a government agent at least leaned over the line, because there wasn’t evidence before the court to support that argument. Having refused to disclose anything about James (besides acknowledging that he had been a confidential informant, which supported Valmer’s argument), the only evidence the prosecutor cited in making this argument was that the undercover detective testified that James had nothing to do with the six charged drug deals. That was a legitimate basis for arguing that the Cl’s role was limited and that Valmer was predisposed to commit the offense because he did it when James wasn’t around. But the fact that he wasn’t there for the last six deals did not mean that he hadn’t acted for the Government to set up the first deal or by playing any other role. There was simply no evidence to support the Government’s argument on this point. Since jurors would reasonably assume that the prosecutor would know whether or not someone was a government agent, by making this assertion the prosecutor appeared to be *728 arguing from outside the record and engaging in a form of vouching.

The prosecutor’s rebuttal comment pushed much too far over the line. It simply wasn’t true, as the prosecutor argued, that “we don’t know anything about James.” The Government knew more about him. Indeed, the reason the defendant, the court, and the jury couldn’t know anything more about him was because the Government had refused to provide any more information about James or his relationship with the authorities.

It is unnecessary to decide whether these statements alone would entitle Valmer to relief, however. The statements reveal the emphasis the prosecutor placed on the government agent issue, which convinces me, even if a plain error standard is applied, 9 that Valmer was erroneously denied an opportunity to make out his defense. It may well be that James could not have offered any support for Valmer’s entrapment defense, but given that there was not even an in camera review of that question, the current conviction should not stand. Cf. Sai Keung Wong, 886 F.2d at 255-57, 256 (upholding a denial of Cl disclosure since, assuming that the defendants had made the necessary threshold showing to reach this stage, review of the evidence produced in camera gave “no indication that the informant could have provided any testimony that would have helped the defense”). I would reverse the conviction and remand for a new trial, keeping in mind that on remand, the district court may elect to conduct an in camera review of any evidence James might have to offer the defense. 10

I respectfully dissent.

. The issue arose mid-trial in an oblique manner, coming to the fore when the Government’s hearsay objection, during Valmer’s testimony, evolved into a claim that the defense was attempting to re-litigate the Cl information disclosure issue. During the sidebar, the Government pressed the position that the previous denial was a final ruling that could not be reconsidered, even though the district court’s previous denial was “without prejudice if ... through either their witnesses or through your witnesses, ... you have some predicate to show [the court] that [the Cl] was an inducing agent and therefore we need to know the background of [the Cl].” Instead of correcting the Government’s mistake, the defense proceeded on this erroneous premise and responded to the district court’s suggestion — that the defense’s line of questioning was foreclosed by law of the case — by trying to distinguish its current questioning from its previous disclosure request. Although the parties’ confusion, in which the defense acquiesced, clouded the issue, the Cl’s relevance to Valmer’s defense was clear by this juncture.

. As noted above, although the issue arose mid-trial, the defense failed, in the midst of the confusion surrounding the prejudice of the district court’s previous ruling, to directly request information about the Cl at a time when the need for that information became apparent. See Fed.R.Crim.P. 52(b); United States v. Recio, 371 F.3d 1093, 1099-1100 (9th Cir.2004).

. Although on this record the district court erred in preventing the defense from obtaining any information about the Cl, such an in camera review may bring additional revelations as to how much — or how little — help James could provide. Such information would impact the ultimate resolution of the court’s weighing of the public interest in protecting CIs against Valmer’s ability to defend himself, see Gonzalo Beltran, 915 F.2d at 488 .