
USCA1 Opinion

	




          August 12, 1994       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2084                                                UNITED STATES,                                      Appellee,                                          v.                               BILLY RAY MCDOWELL, JR.,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ___________________               Billy Ray McDowell, Jr. on brief pro se.               _______________________               Guillermo  Gil, United  States  Attorney,  Jose  A.  Quiles-               ______________                             _________________          Espinosa, Senior Litigation Counsel, and Ernesto Hernandez-Milan,          ________                                 _______________________          Assistant U.S. Attorney, on brief for appellee.                                  __________________                                  __________________                 Per Curiam.   Billy Ray McDowell,  Jr. was convicted  of                 __________            three counts of  drug offenses.  We affirmed  that conviction            on appeal.   United States  v. McDowell, 918  F.2d 1004  (1st                         _____________     ________            Cir. 1990); see also  United States v. McDowell, 957  F.2d 36                        ________  _____________    ________            (1st  Cir.  1992)  (upholding  resentencing   after  remand).            Thereafter,  in December 1992, McDowell filed  a motion for a            new  trial on the ground  of newly discovered evidence, which            he  claimed was  Brady evidence1  unlawfully retained  in the                             _____            hands of  the prosecution.   This allegedly  newly discovered            evidence   consisted   of   (1)   tape   recordings   of  two            conversations  which  occurred on  February  1, 1988  between            McDowell  and Agent  Francisco Sarra,  who posed  as Franklin            Browne,  a co-defendant,  at the  Dallas/Fort Worth  airport2            and (2)  McDowell's telephone bills for  January and February            1988.  The district court denied that motion and McDowell has            appealed.  We  affirm essentially for  the reasons stated  in            the  district court's opinion  and order.   United  States v.                                                        ______________            McDowell,  830 F. Supp.  90 (D.P.R. 1993).   We add  only the            ________            following comments.                 It is clear that none  of the evidence now relied on  is            newly discovered.  That is  obviously true for McDowell's own                                            ____________________            1.  See Brady v. Maryland, 373 U.S. 83 (1963).                ___ _____    ________            2.  One  was  a  telephone  conversation  with   Agent  Sarra            pretending to have just  arrived at the airport.   The second            conversation was recorded by  a body wire worn by  Sarra when            he met McDowell at the airport.                                         -2-            telephone  bills.    Moreover,  McDowell's   claim  that  the            prosecution  is  responsible  for  producing  McDowell's  own            telephone  bills is  not only  inaccurate, it  is illogical.3            The tape recordings of  February 1, 1988 also were  not newly            discovered.  McDowell, himself, testified at his resentencing            hearing  that, immediately  after he  was arrested,  an agent            played him a tape of his conversation with Agent Sarra.   Tr.            4/4/91 at 24.   He, therefore, knew of that  tape's existence            prior to  trial.   And,  both the  recordings -  that of  the            telephone conversation  and the recording  from Sarra's  body            wire - were referred to at trial by Agent Sarra.  Tr. 6/27/88            at 565;  567.  Even  if the government had  failed to produce            these tapes prior to trial  - a concession which it  does not            make -  McDowell knew about  both recordings, at  the latest,            mid-trial,  yet did  not request  copies, complain  about any                                            ____________________            3.  McDowell claims that, in support of his new trial motion,            he  submitted  the  relevant  telephone bills  for  both  his            residence and his mobile telephones.  And, he argues that the            district court misunderstood the  collect call to Fort Worth,            Texas to which  he referred.  He says that  the relevant call            was  the  collect call  to  Fort Worth  made  by co-defendant            Browne  after co-defendant  Darrin  Taylor was  arrested  but                    _____            before  Browne, himself, was  arrested.  He  contends that no            ______            charge  which could  represent that  collect call  appears on            those  bills.   Even  properly  understood,  McDowell's claim            cannot  evade the  fatal blow  that his  own telephone  bills            cannot be newly discovered.  In any event, whether Browne did            or did not make a prearrest collect call to McDowell does not            significantly detract from the quantum of evidence supporting            McDowell's conviction.                                         -3-            late  disclosure,  or seek  a continuance  of trial.4   Brady                                                                    _____            claims, at  least  typically, involve  "the discovery,  after                                                                    _____            trial of information which had  been known to the prosecution            _____            but unknown to  the defense."   United States  v. Agurs,  427                                            _____________     _____            U.S. 97, 103 (1976) (emphasis added).                 In any event, there is scant, if any, exculpation in the            February 1  recordings.5   McDowell claims that  the recorded            telephone conversation is  exculpatory because it shows  that            the $4,000 amount was suggested by Sarra.  Even assuming this            is exculpatory, that  is exactly what  Sarra testified to  at            trial.   McDowell also claims that the recording reveals that            Sarra  testified falsely  about referring  to a  package that            McDowell  was to  pick  up.    While  there  is  no  specific            reference  to a  package, McDowell's  own description  of the            recorded conversation has Sarra  telling McDowell to "beep me            just before you  come by and get this."  Appellant's brief at            p. 25.  Rather than revealing perjury, McDowell's description            of the  recorded conversation  and  Sarra's trial  testimony,                                            ____________________            4.  Indeed, although  McDowell claims (inaccurately)  that he            did not know  of the tapes' existence until  resentencing, he            did not even complain at resentencing in April 1991 about any            allegedly late disclosure.  Rather, it was not until December            1992, after  his unsuccessful  appeal from  the resentencing,            that McDowell first raised this claim.            5.  McDowell  makes  no  claim  about the  substance  of  the            conversation  picked up by the body wire.  After listening to            that tape,  the district court stated  that that conversation            is  unintelligible due to background noise.  Agent Sarra said            the same thing at trial.                                         -4-            while not  mirror reflections,  seem wholly consistent.   It,            therefore, appears to have little, if any, impeachment value.            In sum, even assuming that the prosecution failed to disclose            the tape  recording of the February  1 telephone conversation            between McDowell  and Sarra, that evidence  was not material,            i.e.,  there  is no  "reasonable  probability  that, had  the            evidence been  disclosed to  the defense,  the result of  the            proceeding  would have  been  different."   United States  v.                                                        _____________            Bagley, 473 U.S. 667,  682 (1985) (opinion of Blackmun,  J.);            ______            see also id. at 685 (White, J., concurring).            ________ ___                 Finally,  there  was  no  abuse  of  discretion  by  the            district court in declining to hold an evidentiary hearing on            the  new trial  motion.6   See United  States v.  Panitz, 907                                       ___ ______________     ______            F.2d  1267,  1273-74  (1st  Cir.  1990)  (reciting  abuse  of            discretion standard for  district court  decision whether  to            hold an  evidentiary hearing);  United States v.  Slocum, 708                                            _____________     ______            F.2d 587, 600 (11th Cir. 1983) (same).                 Affirmed.7                 _________                                            ____________________            6.  The  district  court,  in  fact,  listened  to  the  tape            recordings submitted  by McDowell with his  new trial motion.            McDowell  apparently contends,  however,  that  the  district            court should have also heard live testimony.            7.  The facts and legal arguments are adequately presented in            the briefs and record and the decisional process would not be            significantly aided by oral argument.  McDowell's request for            oral argument, therefore, is denied.  Loc. R. 34.1(a).                                         -5-
