
USCA1 Opinion

	




          February 10, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1366                                                UNITED STATES,                                      Appellee,                                          v.                                     JUAN BRACHE,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ___________________               Francis X. Mackey on brief for appellant.               _________________               Sheldon  Whitehouse, United  States Attorney,  and Zechariah               ___________________                                _________          Chafee, Assistant United States Attorney, on brief for appellee.           ______                                  __________________                                  __________________                 Per Curiam.   Juan Brache appeals  from his  convictions                 __________            for  possession of a firearm after having been convicted of a            crime  punishable by  imprisonment for  a term  exceeding one            year, see 18 U.S.C.    922(g)(1); possession of cocaine  with                  ___            intent to distribute it,  see 21 U.S.C.   841(a)(1);  and use                                      ___            of  a firearm during a federal drug trafficking crime, see 18                                                                   ___            U.S.C.   924(c)(1).  We affirm.                                          I.                 On several occasions in April 1993, narcotics detectives            from the  Providence  Police  Department  drove  by  a  house            located at 154 Stanwood Street, and observed Brache, known to            them as "CUBA," seated by the second-story, front window.  On            April 28, 1993, a team of five detectives made an  entry into            the house.  Detective Drohan proceeded first.  He entered the            basement from the  back of the  house and positioned  himself            there by the base of a chimney.  The rest of the team arrived            in unmarked police cars, approached the house from the front,            entered a side door, walked up the stairs to the second-floor            apartment, and  entered the  kitchen.   As  Detective  Drohan            heard  the other detectives walk up the stairs, he observed a            Monarch cigarette pack and a pistol fall to the  floor at the            base of the chimney.   The cigarette pack contained  numerous            small bags of cocaine.  The pistol was loaded.                   Detective  Gannon,  who   entered  the  kitchen   first,            testified that he saw two people there, an "older" male and a            "heavy  set" female.  He  immediately looked to  the left and            saw Brache  approaching the  kitchen  from the  living  room.                                         -2-            Shortly after grabbing Brache and placing him in the kitchen,            Detective  Gannon heard  Detective Drohan  radio that  he had            found  "something."   Detective Gannon  went into  the living            room where he saw a space heater with a pipe that entered the            wall.  He slid the  pipe aside and dropped an ashtray  down a            vent in the wall.  The  ashtray landed in the same place that            the  cigarette  pack and  pistol  had landed.    According to            Detective Gannon, there was no one else in the living room.                   Shortly after the experiment with the ashtray, Detective            Drohan came up to the second-floor  apartment.  He recognized            the  "heavy set"  female in  the kitchen  as Dawn  LaCroix, a            prostitute.  The "older" man  in the kitchen was intoxicated.            Detective  Drohan  recognized  him  as someone  he  had  seen            before, "hanging"  in front  of the  liquor store  on Elmwood            Avenue.   Detective  Drohan noticed  that Brache  was smoking            Monarch cigarettes  and seized  several empty packs  from the            living  room.  While the detectives were present, a number of            customers knocked on the second-floor door, asked for "CUBA,"            and requested one or two bags of cocaine.                   There  was no  fingerprint  evidence  linking Brache  to            either the pistol or cigarette packs.  The parties stipulated            that  Brache had a prior conviction for a crime punishable by            imprisonment  for  a term  exceeding  one  year.   They  also            stipulated that if the  government proved beyond a reasonable            doubt  that Brache possessed cocaine  on April 28, 1993, then                                         -3-            Brache  did  so knowingly  and  intentionally,  and with  the            intent to distribute it.                 The defense strategy was to  raise a doubt about whether            the  defendant was the only person who could have dropped the            cocaine  and pistol  down the  vent.   Towards this  end, the            defense called  Detective Soto, who had  also participated in            the raid, as a witness.  Based on Detective Soto's testimony,            the jury  could have found that there were up to six or seven            persons in  the apartment when the narcotics team entered it,            including several  Hispanic males.  Richard  Slowe, a private            investigator hired  by the defense, testified  that the house            at 154 Stanwood Street  has three floors.  He  also testified            that  when he visited the site, someone appeared to be living            on the third floor.                                         II.                 Brache raises two  issues on appeal.   First, he  argues            that the district court erred in refusing to allow him to ask            a  prospective juror on voir dire whether the juror felt that            police officers might  ever stretch the  truth.1  Second,  he            argues that  the government's failure to  disclose, until the            first day of trial,  the presence of the elderly  drunken man                                            ____________________            1.  The  question  defense counsel  posed to  the prospective            juror  was:  "Do you  think that when  police officers arrest            somebody sometimes, and they write out their reports and they            come to  testify in  court.   Do  you think  they would  ever            stretch the truth?"  The government objected to the question,            and the district court sustained the objection.                                           -4-            in  the second-floor  apartment,  violated his  right to  the            production  of exculpatory evidence  under Brady v. Maryland,                                                       _____    ________            373 U.S. 83 (1963).   Under the circumstances, Brache argues,            the district court erred in denying his motion for a mistrial            or for a continuance.  We find no error.                 Where law  enforcement officers  are key  witnesses, the            trial  court must  permit  inquiry  into whether  prospective            jurors would  give  greater credence  to the  testimony of  a            government  agent.  United States v. Anagnos, 853 F.2d 1, 3-4                                _____________    _______            (1st Cir. 1988);  United States  v. Pappas, 639  F.2d 1,  4-5                              _____________     ______            (1st Cir. 1980), cert. denied, 451 U.S. 913 (1981).  However,                             ____________            the  phrasing of  the  inquiry is  up to  the judge.   United                                                                   ______            States v. Victoria-Peguero, 920 F.2d 77, 84 (1st Cir.  1990),            ______    ________________            cert. denied, 500 U.S. 932 (1991).   In the instant case, the            ____________            district court  permitted the attorneys to  ask the questions            on  voir  dire.    Defense  counsel  took  advantage  of  the            opportunity  by  asking  prospective  jurors  questions about            their   experiences  with  police  officers.    Although  the            district  court  did  not permit  defense  counsel  to ask  a            prospective juror  whether he  thought police  officers would            ever stretch  the truth,  the court informed  defense counsel            that he  could ask  jurors  "whether they're  more likely  to            believe  a  police  officer  simply  because  he's  a  police            officer, as  opposed  to  a  lay person."    Defense  counsel            responded by pursuing a different line of inquiry.  Under the                                         -5-            circumstances, Brache cannot  complain that he was  precluded            from asking questions  designed to weed out jurors  with pro-            government bias.                    We  also find no Brady violation.  Brady and its progeny                                  _____             _____            prohibit the government from suppressing exculpatory evidence            which is "material either to guilt or to punishment."  Brady,                                                                   _____            373 U.S. at 87.  However, suppression can occur only when the            government  withholds information  unknown to  the defendant.            See Giles v.  Maryland, 386  U.S. 66, 96  (1967) (White,  J.,            ___ _____     ________            concurring)  (observing that  "any allegation  of suppression            boils down to an assessment of  what the State knows at trial            in comparison to the knowledge  held by the defense"); United                                                                   ______            States v. Dupuy, 760 F.2d 1492, 1501 n.5 (9th Cir. 1985); see            ______    _____                                           ___            also United  States v. Soto-Alvarez,  958 F.2d 473,  477 (1st            ____ ______________    ____________            Cir.) (Brady rule applies only to information which  had been                   _____            known to the prosecution but unknown to the defendant), cert.                                                                    _____            denied, 113 S.  Ct. 221  (1992).   In the  instant case,  the            ______            evidence reveals  that Brache  must have  been  aware of  the            "older" gentleman's presence in the apartment  at the time of            the raid.  Accordingly, the government cannot be said to have            suppressed this information.                 Moreover, even if we were to accept Brache's suggestion,            made below, that the government knew more than he did because            it knew  who the elderly gentleman  was, if not  his name, we            would  reject  his Brady  claim.    The  government  was  not                               _____                                         -6-            required under  Brady to turn over  all relevant information;                            _____            it was only required to produce exculpatory evidence that, if            suppressed, would deprive the defendant of a fair trial.  See                                                                      ___            United  States v.  Bagley, 473  U.S. 667,  675 &  n.6 (1985).            ______________     ______            There  is  no evidence  in  the  record that  the  government            interviewed  the elderly  gentleman, and  Brache presents  no            reason to  believe that his testimony  would prove favorable.            Under the  circumstances, we  cannot say that  the government            withheld  exculpatory evidence  in violation  of Brady.   See                                                             _____    ___            United  States  v. Polowichak,  783 F.2d  410, 414  (4th Cir.            ______________     __________            1986).                 We add that the district court offered, on the first day            of trial, to recess the case if Brache wanted additional time            to look for witnesses.  Although defense counsel did move for            a continuance  the next day,  he made the  request contingent            upon the court also  agreeing to release Brache to  assist in            the search.    The district  court was  unwilling to  release            Brache and denied the  combined motion for a continuance  and            temporary release.  Brache  makes no argument on  appeal that            he should have been released.  Having indicated below that he            was  not interested  in a  continuance, unless  he were  also            released, Brache cannot now complain that he was not  granted            one.                 Affirmed.  See Loc. R. 27.1.                 ________   ___                                         -7-
