                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 20 2002
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 00-3301
                                                            (D. Kan.)
 BETTY ANNETTE WATKINS,                          (D.Ct. No. 96-CR-40061-RDR)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL and HALL, ** Circuit Judges, and BRORBY, Senior Circuit Judge



      A jury convicted Betty Annette Watkins of conspiracy to possess with

intent to distribute cocaine base and possession with intent to distribute cocaine

base. This court previously upheld her conviction and sentence on direct appeal.

United States v. Watkins, 188 F.3d 520 (10th Cir. Jul. 28, 1999) (unpublished



      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      **
           The Honorable Cynthia Holcomb Hall, United States Circuit Judge, Ninth
Circuit, sitting by designation.
opinion), cert. denied, 528 U.S. 1034 (1999). Subsequently, Ms. Watkins filed a

motion for a new trial, arguing she had new evidence showing a federal agent

falsely testified at her trial. The district court denied the motion without an

evidentiary hearing. The district court explained even if the government

knowingly presented the alleged perjured testimony, the jury heard sufficient

independent evidence to uphold the verdict. Ms. Watkins now appeals the denied

motion for a new trial. She argues (1) the government’s use of the alleged false

testimony was not harmless beyond a reasonable doubt, and (2) this court should

reverse the conviction under our supervisory powers regardless of the alleged

false testimony’s effect on the outcome of the case. Our jurisdiction arises

pursuant to 28 U.S.C. § 1291. We affirm.



                                  BACKGROUND

      While executing a search warrant, police officers observed Betty Annette

Watkins attempting to flush 16.97 grams of crack cocaine down her kitchen sink.

After a police officer read her the warnings prescribed in Miranda v. Arizona, 384

U.S. 436, 471-72 (1966), Ms. Watkins admitted the crack was hers. Police

arrested Ms. Watkins and transported her to the Franklin County jail. Tom

Walsh, a federal Drug Enforcement Administration agent, and Tim Cronin, a local

police officer, tape recorded a post-arrest interview of Ms. Watkins. According


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to the testimony of Agent Walsh and Officer Cronin, Ms. Watkins identified three

other individuals with whom she was involved in selling crack. Three days later,

Agent Walsh condensed into two paragraphs of a written report what he believed

to be significant from the interview, and then destroyed the tape recording of the

interview. Defense counsel learned of the destroyed tape for the first time during

the trial. Agent Walsh testified destroying the tape was within his discretion

under Drug Enforcement Administration policy. Defense counsel vigorously

challenged Agent Walsh’s credibility during cross-examination and closing

arguments.



      At trial, the main witness for the prosecution was Bernard Preston who

testified pursuant to a plea agreement. Mr. Preston testified Ms. Watkins was a

member of a group of at least eight individuals including himself who sold crack

cocaine. The jury found Ms. Watkins guilty of possessing with intent to

distribute 16.97 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1).

The jury also found Ms. Watkins guilty of conspiring to possess with intent to

distribute fifty grams or more of crack cocaine in violation of 21 U.S.C. § 846.

On a previous appeal, this court affirmed Ms. Watkins’ conviction and sentence

under both offenses. Watkins, 188 F.3d at 520.




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      While Ms. Watkins’ first appeal was pending, the Drug Enforcement

Administration released its policy manual to the public for the first time. Ms.

Watkins’ counsel obtained a copy of the manual. Contrary to Agent Walsh’s

testimony at trial, the policy manual does not give agents discretion to destroy

tape recordings of post-arrest interviews. 1 After her initial unsuccessful appeal,

Ms. Watkins filed a motion for a new trial, arguing Agent Walsh’s incorrect

testimony about his discretion to destroy the tape could have influenced the jury.



      Rather than holding an evidentiary hearing on the new evidence, the district

court assumed, but did not find, the government knowingly presented perjured



      1
          The Drug Enforcement Administration Agents Manual states:

      A.      Rough notes taken by an Agent while interviewing a potential
              government witness, an informant, a suspect, or a subject of an
              investigation are subject to discovery. Failure to produce these
              notes, even due to good faith loss or destruction, could result in
              dismissal of the case. Agents will therefore preserve any such notes,
              even though their contents have been subsequently reported on a
              DEA form 6.

      B.      The term “notes” includes handwritten notes, original tapes, or other
              work papers made during the interview of a potential Government
              witness, or any such documents made outside the interview from
              which the witness was directly questioned. Original tapes will be
              handled as nondrug evidence (see 6663.66).

Drug Enforcement Administration, Agents Manual, § 6211.6.


                                            -4-
testimony about Agent Walsh’s authority to destroy the interview tape. The

district court found even if the government knowingly presented perjured

testimony about Agent Walsh’s discretion, it could not have changed the jury

verdict on either the conspiracy or possession charge. Although Agent Walsh did

provide some additional information, the district court found Bernard Preston

“provided the majority of the evidence concerning Watkins’ association and

involvement in the conspiracy.” Moreover, Officer Cronin corroborated Agent

Walsh’s statements about the interview. The district court found “Agent Walsh’s

credibility was in no way determinative of the defendant’s guilt or innocence.”

The district court also noted Ms. Watkins did not offer any evidence to contradict

the testimony of Agent Walsh, Officer Cronin, or Bernard Preston. The district

court concluded “we are convinced that the evidence at trial ... was so strong that

any evidence concerning the DEA Policy Manual would have been insignificant

and would not have affected the result.” Ms. Watkins now appeals the district

court’s denial of her motion for a new trial.



                                   DISCUSSION

      Ms. Watkins argues she is entitled to a new trial because the

“Government’s knowing use of perjured testimony was not harmless beyond a




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reasonable doubt.” 2 Specifically, Ms. Watkins contends if Agent Walsh had not

falsely testified about his authority to destroy the interview tape recording, the

jury might have acquitted her of the conspiracy charge. 3 Due process of law

requires prosecutors to disclose evidence that is “material either to guilt or to

punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Convictions obtained

with the knowing use of perjured testimony “must be set aside if there is any

reasonable likelihood that the false testimony could have affected the judgment of

the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). “Consistent with our

overriding concern with the justice of finding guilt,” we reverse a conviction

upon knowing presentation of perjured testimony “only if the evidence is material

in the sense that its suppression undermines confidence in the outcome of the

trial.” United States v. Bagley, 473 U.S. 667, 678 (1985) (quotation marks and

citation omitted); Smith v. New Mexico Dept. of Corrections, 50 F.3d 801, 827

(10th Cir.), cert. denied, 516 U.S. 905 (1995). The materiality of Brady evidence


       2
         Like the trial court, we do not address whether the government did in fact
knowingly present perjured testimony. Rather, we assume the government presented
perjured testimony for the purposes of considering whether the false testimony could have
affected the jury verdict.

       3
          Ms. Watkins concedes Agent Walsh’s allegedly perjured testimony could not
reasonable have affected the jury’s findings with respect to the possession with intent to
distribute charge. Ms. Watkins only questions whether Agent Walsh’s testimony could
have affected the conspiracy charge.


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and its possible effect on the verdict are mixed questions of law and fact we

review de novo. 4 United States v. Rogers, 960 F.2d 1501, 1510 (10th Cir.), cert.

denied, 506 U.S. 1035 (1992). “To make the materiality determination, we view

the suppressed evidence’s significance in relation to the record as a whole.”

Hughes, 35 F.3d at 1252.



      Our review of the record as a whole indicates Ms. Watkins’ new evidence

was not material to the jury’s verdict. Bernard Preston provided the majority of

evidence regarding Ms. Watkins’ conspiracy charge. A participant in this

conspiracy himself, Mr. Preston testified Ms. Watkins was affiliated with a crack

dealing street gang. Mr. Preston explained Ms. Watkins regularly traveled to

Kansas City with another member of the group to purchase the group’s crack

supply. Ms. Watkins would store this crack in her home and transfer it to other

group members for resale. Ms. Watkins would also sell crack directly to drug

users. Mr. Preston testified Ms. Watkins supplied as much crack to him as he


      4
         The government contends we may review the district court’s denial of the
motion for a new trial only for an abuse of discretion. In support of this standard the
government cites United States v. Pearson, 203 F.3d 1243, 1274 (10th Cir.) (“We review
the denial of a motion for new trial for an abuse of discretion.”), cert. denied, 530 U.S.
1268 (2000). “Although we generally review the denial of a motion for a new trial for an
abuse of discretion, we review de novo claims that the prosecution violated Brady,
including the determination of whether suppressed evidence was material.” United States
v. Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994).


                                           -7-
could sell. Moreover, Mr. Preston testified he observed Ms. Watkins sell crack

out of her home to a steady stream of customers. Mr. Preston explained during

afternoons and evenings drug users purchased crack from Ms. Watkins as often as

“every five [or] six minutes.”



      Agent Walsh’s additional testimony concerning Ms. Watkins’ post-arrest

interview statements only corroborated Mr. Preston’s more detailed testimony.

Officer Cronin provided an independent account of the post-arrest interview.

Furthermore, in cross-examination and closing arguments, defense counsel

aggressively challenged both Agent Walsh’s decision to destroy the tape and his

credibility. The new Drug Enforcement Administration policy manual evidence

adds little beyond the examination of Agent Walsh already presented at trial.

Because the record as a whole shows “no reasonable doubt about guilt whether or

not the additional evidence is considered, there is no justification for a new trial.”

Agurs, 427 U.S. at 112-13. Therefore, we affirm the district court’s denial of Ms.

Watkins’ motion for a new trial. 5




      5
         Appellant further contends “Ms. Watkins’ sentence on the possession count
should be vacated if the conspiracy count is vacated, because the sentence on the
possession count was predicated upon the fact that Ms. Watkins had been convicted of
conspiracy.” Because we do not vacate the conspiracy conviction, we need not reach this
issue.


                                          -8-
      Ms. Watkins next asks us to reverse her conviction with our supervisory

power over district courts. Ms. Watkins contends “[w]here a federal prosecutor

knowingly elicits perjured testimony from a federal agent, the defendant’s

conviction should be reversed ... regardless of the testimony’s effect on the

outcome of the case.” Our supervisory powers allow us to reverse judgements “as

may be just under the circumstances.” 28 U.S.C. § 2106. However, we reverse

convictions under supervisory powers only with “caution” and “a view toward

balancing the interests involved.” United States v. Hasting, 461 U.S. 499, 506-07

(1983). This balance must not ignore the need for “prompt administration of

justice.” Id. at 509. Furthermore, the exercise of supervisory power must not

amount “to a substitution of individual judgment for the controlling decisions of

[the Supreme] Court.” United States v. Payner, 447 U.S. 727, 737 (1980).



      The balance of interests does not require a new trial in this case. Because

new evidence from the Drug Enforcement Administration policy manual could not

reasonably affect the judgment of the jury, a new trial would incautiously delay

the administration of justice. Moreover, the Supreme Court’s Brady

constitutional framework controls our decision. We are unwilling to fashion a

“‘sub-constitutional’” rule which disregards the limitations of law set out by the

Supreme Court. United States v. Gamble, 737 F.2d 853, 860 (10th Cir. 1984)



                                        -9-
(quoting United States v. Meyers, 692 F.2d 823, 847 (2d Cir. 1982)).



      For the reasons stated, we AFFIRM the district court’s denial of

appellant’s motion for a new trial.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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