United States v. Pablo Trejo-Zambrano, United States of America v. Jesus Fierro-Soza, United States of America v. Frank Fierro-Soza

582 F.2d 460 3 Fed. R. Evid. Serv. 344 UNITED STATES of America, Plaintiff-Appellee, v. Pablo TREJO-ZAMBRANO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jesus FIERRO-SOZA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frank FIERRO-SOZA, Defendant-Appellant. Nos. 77-2990, 77-3024 and 77-3182. United States Court of Appeals, Ninth Circuit. May 26, 1978. Rehearing Denied in No. 77-2990 July 21, 1978. Rehearing and Rehearing En Banc Denied in No. 77-3024 Aug. 18, 1978. 1 John J. Cleary (argued), Fed. Defenders of San Diego, Inc., San Diego, Cal., David P. Curnow (argued), San Diego, Cal., Anthony S. Deutsch, San Diego, Cal., for defendant-appellant. 2 Stephen W. Peterson, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee. 3 Appeal from the United States District Court for the Southern District of California. 4 Before TRASK and KENNEDY, Circuit Judges, and SOLOMON, * District judge. 5 SOLOMON, District Judge. 6 Pablo Trejo-Zambrano and Jesus and Frank Fierro-Soza, the appellants, were each convicted of possession of marijuana with intent to distribute and of conspiracy. We affirm. 7 Appellants were jointly indicted.…

Pablo Trejo-Zambrano and Jesus and Frank Fierro-Soza, the appellants, were each convicted of possession of marijuana with intent to distribute and of conspiracy. We affirm.

Appellants were jointly indicted. They filed motions to suppress the evidence (79 pounds of marijuana found in the “load” car driven by Jesus Fierro-Soza) asserting that the DEA agents: (1) did not have probable cause to search the load car and (2) failed to obtain a warrant for the search.

After a hearing, the trial court denied the motions. The Fierro-Soza brothers agreed to a court trial. They stipulated that the court could consider the evidence adduced at the suppression hearing to determine their guilt or innocence, but they preserved for appeal their objections to the admissibility of the evidence. The court found both guilty.

Pablo Trejo-Zambrano (Trejo) was tried by a jury. The jury found him guilty. With the Fierro-Soza brothers, Trejo contends that the trial court erred when it refused to suppress the evidence. In addition, Trejo contends the trial court erred when it: (1) refused to compel Jesus to testify on behalf of Trejo, (2) excluded from evidence Jesus’ incriminating affidavit, (3)…

concurring in part and dissenting in part:

I concur in the court’s opinion as to all matters except its conclusion that the Government had no responsibility to advise the court that appellant Trejo-Zambrano’s prior conviction as a youth offender had been set aside pursuant to 18 U.S.C. § 5021 (b).

Federal Rule of Evidence 609(c) provides that: “Evidence of a conviction is not admissible [for impeachment purposes] if (1) the conviction has been the subject of a certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year . . . The Federal Youth Corrections Act puts prosecution and defense alike on notice that a conviction is automatically set aside where one who has been sentenced as a youth offender is unconditionally discharged before expiration of the maximum sentence imposed on him or before expiration of the maximum period of probation initially fixed by the court. 18 U.S.C. § 5021 .

Moreover, the record clearly indicates that the prosecutor was fully aware of the nature of the…