                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JUL 28 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 97-3213
                                                  (D.C. No. 95-40083-08-SAC)
 JAMES WARDEL QUARY,                                        (D. Kan.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, McKAY and EBEL, Circuit Judges.


      In March 1997, following a nine-day jury trial, defendant-appellant James

Wardel Quary was convicted on 80 counts of federal drug- and drug-related

offenses in the United States District Court for the District of Kansas, and was

sentenced to life imprisonment. Quary now appeals his convictions, arguing that

the district court erred in (1) failing to declare a mistrial based on the

government’s intentional destruction of exculpatory evidence; (2) denying defense

counsel’s motion under Fed. R. Crim. P. 17(b) to subpoena Lexie Smith, a



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
codefendant, to testify on Quary’s behalf; (3) granting the government’s motion to

quash defense counsel’s subpoena requesting documents relating to codefendant

Elinor Preston’s plea agreement with the government; and (4) permitting Renee

Watkins, a possible defense witness, to assert a blanket Fifth Amendment

privilege against self-incrimination after the government warned her that she was

subject to an ongoing criminal investigation. We affirm.

                                      FACTS

      Quary’s appeal is part of a trio of criminal cases before us involving a large

crack cocaine distribution ring in Kansas. In this case, a total of eight

defendants 1 were named in four iterations of a multi-count indictment charging

various drug trafficking offenses. Quary alone went to trial; the other seven

defendants entered pleas of guilty at various points in time, the last being Lexie

Lee Smith, who reached a plea agreement with the government during jury

selection. See companion case United States v. Smith, No. 97-3266. Betty

Watkins was indicted individually in a separate but related case, and was

convicted on possession and conspiracy charges. See companion case United

States v. Watkins, No. 97-3216.




      1
       These defendants were James Quary, Bernard Eugene Preston, Elinor
Preston, Demond Wesley Bridges, Lexie Lee Smith, Lori Smith, Lester Ervin
Smith, Jr., and Edward Tyrone Merritt.

                                        -2-
      We present some of the background facts below; additional facts are set

forth in our discussion of the issues Quary raises on appeal.

      In May 1994, the DEA began to assist local law enforcement in

investigating a suspected drug trafficking operation that encompassed the cities of

Paola, Ottawa, Lawrence, Topeka, Emporia, and Kansas City, Kansas. DEA

Agent Thomas Walsh worked with a confidential informant to gather information

on the distribution ring, and eventually was able to make controlled purchases of

crack cocaine from several members of the group.

      Three of Quary’s alleged coconspirators – Bernard Preston, Elinor Preston,

and Demond Bridges – pled guilty to drug conspiracy charges and testified for the

government at Quary’s trial pursuant to plea agreements. According to their

testimony, Quary controlled the drug ring, which distributed crack cocaine

through several Kansas communities, and which involved approximately 25

coconspirators and as many as 75 sellers in various communities. The witnesses

testified that the coconspirators were members of a gang, of which Quary was a

founding member; the group considered itself affiliated with the “Bloods.” 2


      2
        Several of the gang members who were codefendants in this case are
related. Bernard Preston is a cousin of both Quary and of Lexie Smith; Bernard
Preston and Elinor Preston are siblings. In addition, Quary dated Renee Watkins
and fathered two of her children; Renee is the daughter of Betty Watkins, who, as
noted, was indicted separately in a companion case. Renee Watkins also dated at
various times Bernard Preston and Demond Bridges, two of the government’s
witnesses against Quary.

                                        -3-
      Quary testified at trial, denying that he was aware of or participated in any

of the alleged crimes. Additional defense witnesses testified that he was neither a

drug dealer nor a gang member.

      After deliberating a day and a half, the jury returned a verdict finding

Quary guilty on all counts. 3 Quary received a sentence of life imprisonment, and

he now appeals.

                                   DISCUSSION

      Quary raises four issues on appeal. We find each of his arguments to be

without merit, and affirm.

      A. Government’s Intentional Destruction of Evidence

      Quary first contends that the district court erred in failing to declare a

mistrial based on the government’s intentional destruction of an audiotape of

Betty Watkins’ post-arrest statements to law enforcement officers, in which

Watkins declared that Quary was not involved in drug dealing. This tape is the

centerpiece of one of the companion cases to this appeal, United States v.

Watkins, No. 97-3216.

      Following her arrest, Betty Watkins was interviewed by Agent Thomas

Walsh and Tim Cronin, a local law enforcement officer. During this audiotaped


      3
       At the close of evidence, the government moved to dismiss Count 17, as
the controlled substance charged in that count had inadvertently been destroyed
before being tested. The jury convicted Quary on the remaining counts.

                                        -4-
interview, Watkins apparently admitted to possessing crack cocaine that the

officers discovered upon executing a search warrant at her house; however, she

also insisted that Quary did not have anything to do with drug trafficking.

      After summarizing what he felt was significant from the interview into two

paragraphs of a report, Agent Walsh destroyed the tape itself. He testified at

Watkins’ trial that he did not consider Watkins’ statements to be exculpatory

because he believed she was lying about Quary.

      Defense counsel in Quary’s trial did not learn of the existence of this tape

until mid-trial. When defense counsel sought Watkins’ testimony, she asserted

her Fifth Amendment privilege against self-incrimination and refused to testify.

Defense counsel then moved to introduce the tape, only to discover that it had

been destroyed. The government provided defense counsel with transcripts of

Agent Walsh’s and Officer Cronin’s testimony at Watkins’ trial, and both officers

testified at Quary’s trial. Defense counsel nonetheless moved for a mistrial based

on the government’s destruction of the tape. The court denied the motion, ruling

that the tape was inadmissible hearsay, such that the government’s destruction of

the tape did not prejudice the defendant.




                                        -5-
      We agree with the district court that, for purposes of Quary’s trial, the

government’s intentional destruction of the tape is irrelevant, because even if the

tape still existed, it would be inadmissible under Fed. R. Evid. 804(b)(3).

      Rule 804(b)(3) provides:

             Statement against interest. A statement against interest
      which was at the time of its making so far contrary to the defendant’s
      pecuniary or proprietary interest, or so far tended to subject the
      declarant to civil or criminal liability, or to render invalid a claim by
      the declarant against another, that a reasonable person in the
      declarant’s position would not have made the statement unless
      believing it to be true. A statement tending to expose the declarant
      to criminal liability and offered to exculpate the accused is not
      admissible unless corroborating circumstances clearly indicate the
      trustworthiness of the statement.

Fed. R. Evid. 804(b)(3) (emphasis added).

      Thus, “[a] defendant seeking to admit hearsay evidence under Rule

804(b)(3) to exculpate himself must show ‘(1) an unavailable declarant; (2) a

statement against penal interest; and (3) sufficient corroboration to indicate the

trustworthiness of the statement.” United States v. Spring, 80 F.3d 1450, 1460-61

(10th Cir. 1996) (quoting United States v. Porter, 881 F.2d 878, 882 (10th Cir.),

cert. denied, 493 U.S. 944 (1989)). “Rule 804(b)(3) itself states that

‘corroborating circumstances [must] clearly indicate the trustworthiness of the

statement.’” Id. at 1461 (quoting Fed. R. Evid. 804(b)(3)) (emphasis added).

      Having asserted her Fifth Amendment privilege against self incrimination,

Watkins was unavailable; in addition, her statements to the officers during the

                                        -6-
interview were at least partly against her penal interest, 4 to the extent that they

inculpated her on drug possession. However, Quary must still show that

Watkins’ statements were sufficiently trustworthy under Rule 804(b)(3) to warrant

admission.

      We review a court’s evidentiary rulings for abuse of discretion. See Spring,

80 F.3d at 1460. Likewise, “[t]he determination of the sufficiency of such

corroborating evidence lies within the sound discretion of the trial court, which is

aptly situated to weigh the reliability of the circumstances surrounding the

declaration.” Id. at 1461 (internal quotations omitted).

      Here, although the district court mistakenly believed that Watkins’

statements were made after her conviction (rather than shortly after her arrest),

the court correctly observed that Watkins had a personal relationship to Quary

through her daughter, Renee. Further, Watkins’ denial of Quary’s involvement in

drug trafficking was, in fact, not a statement against her self-interest because it

tended to support her self-interest that she was not involved in any conspiracy

with Quary. Consequently, it is reasonable to assume that Watkins had a motive

to lie about Quary’s involvement in order to protect both him and herself.




      4
       Watkins admitted possessing the drugs found as a result of the search of
her house, but she denied participation in any conspiracy with Quary or the other
charged defendants.

                                          -7-
      Quary has not established any corroborating circumstances to show, let

alone corroborating circumstances sufficient to “clearly indicate,” the

trustworthiness of the statements. We therefore cannot conclude that the district

court abused its discretion in determining that Watkins’ statements did not bear

sufficient indicia of reliability to justify their admission. Because Watkins’

statement would have been inadmissible had it been produced, the government’s

intentional destruction of the audiotape did not prejudice Quary’s defense.

      B. Defendant’s Rule 17(b) Motion

      Quary next contends that the district court erred in denying defense

counsel’s motion under Fed. R. Crim. P. 17(b) to produce Quary’s codefendant,

Lexie Smith, as a witness for the defense. 5 The district court denied the motion,

stating that “I’m not going to order this witness under 17(b) until you’ve had an

opportunity to express to the Court what his testimony will be by reason of your

personal knowledge.” Defense counsel only offered the uncorroborated

speculation of his client, Quary, that Lexie Smith, if called and found competent



      5
        Although defense counsel captioned his motion as one under Fed. R. Crim.
P. 17(b), it appears in essence to have been an application for a writ of habeas
corpus ad testificandum. Under 28 U.S.C. § 2241(c)(5), a federal court may in its
discretion, issue such a writ to secure the appearance of a state or federal prisoner
as a witness in federal court. See 28 U.S.C. § 2241(c)(5); United States v. Cruz-
Jimenez, 977 F.2d 95, 99 (3d Cir. 1992). In any event, the procedural
considerations of Fed. R. Crim. P. 17(b) apply to a criminal defendant’s request
for the issuance of such a writ.

                                         -8-
to testify, would deny that he was involved with Quary in the sale of drugs. The

district court had offered defense counsel “help from the Marshals service or

anything else . . . to make arrangements for a conversation between [counsel] and

[Lexie Smith]” to see if his testimony would, in fact, be helpful to Quary and

thereby to determine whether a writ under § 2241(c)(5) would be warranted to

bring Lexie Smith to trial to testify. Notwithstanding this offer, the record before

us shows that defense counsel for Quary offered nothing other than Quary’s

personal belief as to what Lexie would say if called to testify.

      We review the district court’s refusal to issue a subpoena under Rule 17(b)

for abuse of discretion. See United States v. Hernandez-Urista, 9 F.3d 82, 83

(10th Cir. 1993).

      Fed. R. Crim. P. 17(b) provides:

      The court shall order at any time that a subpoena be issued for
      service on a named witness upon an ex parte application of a
      defendant upon a satisfactory showing that the defendant is
      financially unable to pay the fees of the witness and that the presence
      of the witness is necessary to an adequate defense.


      To show that the witness is “necessary,” the defendant must establish that

the witness’ testimony would be “relevant, material, and useful” to his defense.

See id. at 84. Evidence is “material” if there is a “reasonable likelihood that the

testimony could have affected the judgment of the trier of fact.” United States v.

Cruz-Jimenez, 977 F.2d 95, 100 (3d Cir. 1992) (internal quotations omitted). A

                                         -9-
defendant must demonstrate a particularized need for the testimony; “[t]he failure

to set forth the expected testimony of a witness is an adequate ground for the

denial of a request for a subpoena under Rule 17(b).” Hernandez-Urista, 9 F.3d at

84. Likewise, the necessity for the testimony is undermined where it would be

merely cumulative of other testimony. See id.

      Here, defense counsel informed the trial court that Lexie Smith had told

Quary that he would testify that Quary was not involved in drug trafficking. 6

Quary argues that Smith’s potential testimony would have gone to the heart of the

conspiracy charge, and would have refuted the testimony of Bernard Preston,

Elinor Preston, and Demond Bridges, the three indicted coconspirator witnesses

who testified against Quary pursuant to plea agreements.

      However, we agree with the government that Smith’s proffered testimony

was purely speculative and would have been, in any event, merely cumulative of

other defense witnesses’ statements that Quary was not a drug dealer. Moreover,

although we discern nothing in Rule 17(b) or in this Circuit’s case law

interpreting that rule that requires counsel seeking a Rule 17(b) subpoena to make

a proffer to the court regarding the witness’ expected testimony based on


      6
         At oral argument on appeal, Quary’s counsel also represented that Lexie
Smith also proposed to testify that Bernard Preston – not Quary – was the leader
of the distribution ring. However, counsel has not referred us to any part of the
record demonstrating that this aspect of Smith’s potential testimony was made
known to the trial court.

                                        - 10 -
counsel’s personal knowledge, the judge’s assessment of counsel’s proffer is

subject to abuse of discretion review. We conclude that there was no abuse of

discretion in these circumstances, where counsel could offer only a vague

indication of Lexie Smith’s proposed testimony, and where the judge appears to

have made a trial management decision not to prolong an already lengthy trial.

      In short, Quary’s counsel failed to establish that Smith’s testimony was

either material or necessary to his defense, and the trial court’s denial of his Rule

17(b) motion was not an abuse of discretion.

      C. Defendant’s Subpoena Duces Tecum

      Quary next contends that the district court erred in granting the

government’s motion to quash a subpoena seeking documents containing possible

impeachment evidence.

      Elinor Preston, an indicted coconspirator, testified for the government at

Quary’s trial pursuant to a plea agreement. On cross examination, she stated that

she had no idea until after she had entered the plea agreement that the government

would require her to testify against Quary. Defense counsel subsequently served

her attorney with a subpoena duces tecum to gain access to communications

between Elinor Preston’s attorney and the government regarding the terms of




                                         - 11 -
Elinor’s plea agreement for purposes of impeaching her testimony with respect to

her knowledge that the government expected her to testify against Quary. 7

      The district court granted the government’s motion to quash the subpoena

in part because it decided that the evidence sought was protected by the

attorney/client privilege.

      “[W]e consider the circumstances and the correctness of the rulings on

subpoenas under the abuse of discretion standard.” United States v. Greschner,

802 F.2d 373, 378 (10th Cir. 1986).

      Assuming, without holding, that the communications were not protected by

the attorney/client privilege, and that the communications regarding the plea

agreement were otherwise admissible (in that Quary could somehow prove that

Elinor Preston had personal knowledge of any material that might be contained in

a letter between her counsel and the government), we nonetheless find that any

error was harmless, as Quary has failed to demonstrate how the exclusion of this

potential impeachment evidence – on the single point of whether Elinor Preston

knew before signing her plea agreement that she would be called to testify against

Quary – influenced the jury’s verdict.




      7
        We note that defense counsel rejected the government’s offer to stipulate
that Elinor Preston’s plea agreement stated that in order for her sentence to be
reduced, she would have to testify. (Tr. 1637-38.)

                                         - 12 -
      D. Defense Witness’ Assertion of Fifth Amendment Right Against Self-

      Incrimination

      Finally, Quary contends that the district court erred in permitting Renee

Watkins to assert her Fifth Amendment privilege against self-incrimination.

      During trial, defense counsel indicated that he intended to call Renee

Watkins, Quary’s girlfriend and mother of two of his children, as a defense

witness. Defense counsel believed her testimony would refute statements by the

alleged coconspirators regarding Quary’s alleged drug activities. However, Renee

Watkins asserted her Fifth Amendment privilege against self-incrimination after

being notified by the government that she was subject to an ongoing investigation.

      Quary argues that the government’s action amounted to intimidation and

misconduct, and that the court erred in permitting her to assert a blanket Fifth

Amendment privilege against self-incrimination.

      We find Quary’s contentions meritless. First, there is no credible evidence

in the record that the government told Renee Watkins that she was under

investigation in order to pressure her not to testify. Second, a court can order a

witness to testify when a witness desires to protect his or her Fifth Amendment

rights “only if it is perfectly clear that the witness is mistaken and the answers

cannot possibly tend to incriminate” him or her. United States v. Hart, 729 F.2d

662, 670 (10th Cir. 1984) (internal quotations omitted). Given that defense


                                         - 13 -
counsel intended to question Renee Watkins regarding her connections to Quary

and the drug conspiracy, including whether Renee personally had distributed

crack cocaine, it is clear that counsel’s proposed questions might have elicited

incriminating statements. Accordingly, the district court properly concluded that

Renee’s silence was justified, and properly allowed her to invoke her Fifth

Amendment privilege. 8

                                  CONCLUSION

      Because we find no merit in any of the issues raised on appeal, we

AFFIRM Quary’s convictions.


                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




      8
       We note that Quary would not have been permitted to force the witness to
take the stand just to invoke her Fifth Amendment privilege with respect to
individual questions. See Hart, 729 F.2d at 670; United States v. Martin, 526 F.2d
485, 487 (10th Cir. 1975) (trial court did not err in refusing to permit witness to
be called to the stand and thus be compelled to invoke his Fifth Amendment
privilege before the jury, where parties knew that witness intended to invoke the
privilege).

                                        - 14 -
