United States v. Fabian Monge

MEMORANDUM

1. Defendants Fabian Monge and Frank Lopez contend federal prosecutors violated the Jencks Act, 18 U.S.C. § 3500 , by failing to produce the Sierra Vista Police Department’s recording of Belen Romero’s interview. We need not resolve that issue because we conclude that, even if we credit defendants’ argument, any violation that occurred was harmless. Romero’s testimony had no impact on the case against Lopez, whom she did not even mention. Her testimony equally clearly had no effect on the first three counts of which Monge was convicted, as those convictions rested primarily on the testimony of Monge’s other drivers. As to count four (which charged Monge with possession with intent to distribute on the day Romero was arrested with 272 pounds of marijuana), independent evidence of Monge’s guilt — including the marijuana in the car, the route Romero drove, and other drivers’ testimony that Romero worked for Monge — is strong enough to sustain the conviction beyond a reasonable doubt. See United States v. Cardenas-Mendoza, 579 F.3d 1024, 1032-33 (9th Cir.2009).

2. Defendants also argue that the jury should have been instructed that it could draw an adverse inference from…