                                                                        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. 97-3216
                                               (D.C. No. 96-40061-01-RDR)
 BETTY ANNETTE WATKINS,                                  (D. Kan.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, McKAY, and EBEL, Circuit Judges.




      In January 1997, following a jury trial, defendant-appellant Betty Annette

Watkins (“Watkins”) was convicted of federal drug conspiracy and possession

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

sentenced to 270 months’ imprisonment. She now appeals her conviction and

sentence. We have reviewed Watkins’ arguments, and for the reasons set forth

below, we AFFIRM.

      *
        This order and judgment is not binding precedent, except under the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.
                                     FACTS

      Ms. Watkins’ case is part of a trio of related criminal appeals decided today

involving the same cast of characters in a crack cocaine drug trafficking operation

in eastern Kansas. See companion cases United States v. Quary, No. 97-3213;

and United States v. Smith, No. 97-3266. Betty Watkins was the sole defendant

indicted in this case; eight additional defendants were named in a separate, 82-

count indictment. The evidence at Watkins’ trial was as follows:

      In May 1994, the DEA was asked to assist local law enforcement officers to

investigate suspected crack cocaine distribution in Miami, Franklin, and Lyons

counties in Kansas. DEA Agent Tom Walsh worked undercover with local police

and confidential informants to make purchases of crack cocaine from Lori Smith,

Lester Smith, Lexie Lee Smith, Bernard Preston, Elinor Preston (Bernard

Preston’s sister), Eddie Merritt, and Demond Bridges. Lexie Smith and Bernard

Preston were cousins; the entire group allegedly worked for another of Bernard

Preston’s cousins, James Wardel Quary. All of these individuals were ultimately

indicted on drug charges, and all but Quary eventually pled guilty. Betty

Watkins was connected to the group through her daughter, Renee Watkins, who

dated in succession Bernard Preston, Bridges, and Quary, and who had children

by the latter two. Quary and Renee lived with Watkins for awhile from the end of

1993, when Quary was released from prison on prior drug trafficking charges,


                                       -2-
until the beginning of 1994, when he and Renee moved to an apartment leased by

Watkins. 1

      Bernard Preston became the government’s chief witness at Watkins’ trial,

and testified pursuant to a plea agreement. According to Preston, Watkins sold

crack cocaine out of her house in Ottawa, Kansas, to a steady stream of

customers, and she obtained her drug supply from Quary. Preston testified that

Watkins, who is white, would drive Quary to Kansas City on buying trips,

reasoning that police would be less likely to bother a white driver. Preston stated

that he went on these trips with Quary and Watkins three or four times, and that

he and Quary occasionally went without Watkins.

      Local law enforcement officers Timothy Woods and Tim Cronin

participated in the investigation. Woods testified at trial that on May 8, 1996, the

two officers met with a confidential informant, who told them Watkins was

selling crack, and set up a controlled purchase at Watkins’ house. Based on this

purchase, the officers obtained a search warrant for the house. When the warrant

was executed shortly thereafter, officers discovered Watkins at the kitchen sink

with a jar containing small packages of crack. They found additional packages of

crack, a safety razor, and a large chunk of crack in the sink. Officers seized a



      1
        When Renee later moved out of the apartment, Preston and Bridges moved
in with Quary.

                                        -3-
total of 16.97 grams of crack cocaine, the confidential informant’s buy money,

$2,153 in cash, two checkbooks, and an address book. One of the checkbooks

was in Watkins’ name but listed the apartment address where Renee and Quary

lived. The address book contained phone numbers for “Bern” (a nickname for

Bernard Preston) and “Demo” (a nickname for Demond Bridges).

      The only person in the house besides Ms. Watkins at the time officers

executed the search warrant was Watkins’ four-year-old grandson. After being

read her Miranda rights, Watkins agreed to talk to Officer Cronin upon his

promise not to send the grandchild to a foster agency. She then admitted to

Cronin that the contents of the sink belonged to her.

      Watkins was subsequently taken to the local jail, where she was read her

Miranda rights a second time and was interviewed again, this time by Cronin and

DEA Agent Thomas Walsh. Cronin tape-recorded this interview, which lasted

for two hours. During the interview, Watkins apparently admitted that she had

sold crack cocaine since 1994, but she refused to identify her supplier. She also

apparently admitted that Bernard Preston, Demond Bridges and Demetrius Clay

had started her off and taught her how to sell drugs, but she stated that she made

her trips to purchase drug supplies by herself, and she adamantly denied that she

was involved with Quary in this enterprise and insisted that Quary had nothing to

do with drugs.


                                        -4-
      After the interview, Cronin gave the tape to Walsh. Cronin never saw the

tape again and did not know what Walsh did with it. Three days after the

interview, Walsh condensed what he believed was “significant” from the two-hour

taped interview into two paragraphs of a written report. He forwarded a draft to

Cronin, who made corrections to it based on his memory of what Watkins had

said. Walsh then drafted a final report, and destroyed the tape. Although the

written report was disclosed to the defense, it was never introduced into evidence

at trial; the only evidence before the jury regarding the content of the recorded

interview came from the testimony of Agent Walsh and Officer Cronin.

      Defense counsel first learned of the existence of the tape on the second day

of trial, during cross-examination of Officer Cronin. Counsel first learned that

Agent Walsh had destroyed the tape on the third day of trial, during the

government’s direct examination of Walsh. Walsh testified that he destroyed the

tape in accordance with DEA policy, which, according to him, vests individual

agents with the discretion to preserve or destroy a tape once it is reduced to a

report. He stated that he did not consider the tape to be evidence, but rather,

“original notes,” which properly could be destroyed, such as in this case, where

he testified that he felt “[t]here was nothing significant on the tape that couldn’t

be reduced to a written report.” Although Walsh stated that it was not unusual for

him to destroy tapes of interviews, he also stated that he did not, as a matter of


                                         -5-
simple routine, always destroy tapes. He conceded, for example, that he would

have preserved the tape of Watkins’ interview if Watkins had “confessed,” if she

had made “a statement concerning significant events by identifying traffickers or

sources of supply,” or if she had incriminated Quary. Although Walsh conceded

that Watkins denied during the interview that Quary was involved in drug

trafficking, and that Watkins insisted that she travelled solo to Kansas City to buy

crack, Walsh testified that he disbelieved her.

      At the close of evidence, defense counsel moved for dismissal of the case

based on Agent Walsh’s intentional destruction of the tape of Watkins’ post-arrest

interview. Counsel argued in the alternative that if the court did not dismiss the

case, it should either suppress the agent’s testimony about Watkins’ statements, or

at least instruct the jury that it could draw an adverse inference from the

destruction of the tape. The court denied defense counsel’s motion summarily,

and made no findings as to the potential exculpatory value of the tape or as to

whether Agent Walsh acted in bad faith. The court later also denied defense

counsel’s request for an adverse inference instruction.

      The jury convicted Watkins on both counts charged in the indictment,

namely, conspiring with James Quary and others to possess with intent to

distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846

(Count 1), and possessing with intent to distribute 16.97 grams of cocaine base, in


                                         -6-
violation of 21 U.S.C. § 841(a)(1) (Count 2). Watkins was sentenced on each

count to 270 months’ imprisonment, with the sentences to run concurrently. Her

base offense level of 38 for each count was established based on her possession of

the 16.97 grams of crack cocaine, as well as an estimated 7.2 kilograms of crack

distributed over the duration of the conspiracy.

      On appeal, Watkins alleges several errors: 1) the government intentionally

destroyed the tape of Watkins’ post-arrest interview, violating Watkins’ due

process rights; 2) the prosecution improperly elicited testimony about the contents

of documents that the court had previously ruled inadmissible; 3) the district

court admitted hearsay evidence in violation of Watkins’ right of confrontation;

4) the government improperly induced witness testimony through promises of

leniency; and 5) cumulative error.

                                     DISCUSSION

A. Government’s Intentional Destruction of Exculpatory Evidence

      Watkins contends that the government’s intentional destruction of the tape

recording of her post-arrest exculpatory statements violated her due process rights

and warranted sanctions under the principles articulated in California v.




                                        -7-
Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51

(1988). 2

       We review a district court’s conclusion that the government did not destroy

potentially exculpatory evidence for clear error. See United States v. Parker, 72

F.3d 1444, 1451 (10th Cir. 1995); United States v. Bohl, 25 F.3d 904, 909 (10th

Cir. 1994).

       In Trombetta, the Supreme Court held that the government has a duty to

preserve “evidence that might be expected to play a significant role in the

suspect’s defense.” Trombetta, 467 U.S. at 488. Thus, the government violates a

criminal defendant’s due process rights when it destroys constitutionally material

evidence – that is, where (1) the evidence in question possesses an exculpatory




       The parties agree that if Agent Walsh had not destroyed the tape, Watkins
       2

would have been entitled to the recording under Fed. R. Crim. P. 16(a), which
provides in part:
      (a) Governmental Disclosure of Evidence.
             (1) Information Subject to Disclosure.
                   (A) Statement of Defendant. Upon
                   request of a defendant the government must
                   disclose to the defendant and make
                   available for inspection, copying, or
                   photographing: any relevant written or
                   recorded statements made by the defendant,
                   or copies thereof, within the possession,
                   custody, or control of the government, the
                   existence of which is known, or by the
                   exercise of due diligence may become
                   known, to the attorney for the government.

                                        -8-
significance that was apparent before its destruction; and where (2) the defendant

is unable to obtain comparable evidence by other reasonably available means.

See id. at 489. In Youngblood, the Court elaborated upon Trombetta, holding

that where the evidence is only “potentially useful” to the defendant, the

destruction of such evidence does not violate due process absent a showing of bad

faith on the part of law enforcement. See Youngblood, 488 U.S. at 58.

      We find that the government’s destruction of the tape in this case violated

neither Trombetta nor Youngblood.

      1. No Trombetta violation

      We find that although Watkins has met the first prong of Trombetta (that

the exculpatory nature of the destroyed evidence was apparent), she has failed to

meet the second prong of that test (that the evidence was of such a nature that

other comparable evidence was not reasonably available). As such, she has failed

to establish a Trombetta violation.

      Watkins concedes that her post-arrest statements admitted her possession of

the 16.79 grams of crack cocaine discovered at her residence when police

executed the search warrant; thus, the potentially exculpatory nature of her post-

arrest statements is limited to the denial of her involvement in a conspiracy with

Quary or others.




                                        -9-
      We find that the exculpatory significance of Watkins’ recorded statements

should have been apparent to a reasonable law enforcement officer. Walsh’s own

testimony at trial revealed that Watkins denied Quary’s involvement in drug

trafficking, and that after having been taught the trade by Bernard Preston,

Demond Bridges, and Demetrius Clay, she essentially operated on her own,

traveling alone to Kansas City, for example, to purchase crack cocaine. Taken at

face value, these statements were exculpatory as to any charge of conspiracy,

regardless of Agent Walsh’s subjective belief as to their veracity. Walsh’s

personal belief that the statements were falsely exculpatory is irrelevant under

Trombetta. Walsh had a duty to preserve such evidence; it was the province of

the jury to weigh the credibility of the exculpatory statements, not the agent’s.

Given that Walsh was trying at the time to gather evidence of a drug conspiracy

among Quary and others, we cannot say that the exculpatory significance of

Watkins’ statements – at least with respect to her involvement in such a

conspiracy – was not apparent.

      However, Watkins nonetheless fails to show a Trombetta violation because

she has failed to show that the statements were of such a nature that other

comparable evidence was not reasonably available.

      The exculpatory evidence Watkins sought to have introduced was her denial

of any involvement in a drug conspiracy with Quary or others. This evidence was


                                        - 10 -
not only otherwise available but in fact came into evidence through the testimony

of the law enforcement officers. Agent Walsh testified that Watkins denied such

involvement. Certainly the tape would have been a more accurate reconstruction

of the conversation, but Trombetta requires only that “comparable” evidence --

not exact evidence -- have been reasonably available.

      If there was other exculpatory material on the tape (besides Watkins’ denial

of her involvement in the conspiracy), it is her burden to establish what that was,

or least to make a detailed offer of proof as to what it was. She was present at the

tape recording of her conversation, and it is not unreasonable to place that burden

on her as the movant for sanctions. She has not shown that additional exculpatory

material existed on the tape, and her mere speculation is no proof that such

exculpatory material existed, let alone “obviously exculpatory” material.

      In any event, even if there was a Trombetta violation, it was harmless.

First, the value of the exculpatory evidence on the tape was slight at best. A

defendant’s denial of criminal culpability is inherently suspect; Watkins’ recorded

statements could be expected to have carried little weight with the jury. Second,

the tape recording would have been largely redundant. The jury heard from the

officers who interviewed her what her exculpatory statements were. The only

thing the tape might have added was her tone of voice in her responses to their

questions. However, she presents no offer of proof that her tone was particularly


                                        - 11 -
compelling or uniquely exculpatory. Third, even if the taped statements were

strongly exculpatory, Watkins had the ability to take the stand and repeat the

testimony. She was present at the taping, and so she could, if she thought this

evidence was critical, have taken the stand to repeat what she had told the

officers. Presumably the officers would have corroborated what she said, or at

least, nothing in the record shows that they would have refuted her statements.

Fourth, it is doubtful that this evidence was admissible in any event because it

would have been hearsay. Watkins submits that the exculpatory portions of the

tape would have been admissible under the rule of completeness if the

government had introduced the inculpatory portions of the tape. See Fed. R.

Evid. 106. However, she has not made any showing that the government would

have introduced the inculpatory portion of the tape even if it could. Finally, upon

review of the record, we are convinced that the evidence at trial of Watkins’ guilt

was so strong that any exculpatory value of the tape would be insignificant and

would not have affected the result.

      2. No Youngblood violation

      Watkins cannot show that the government’s destruction of the tape violated

Youngblood because she cannot show, on this record, that the tape was destroyed

in bad faith. Agent Walsh testified that he destroyed the tape in good faith under




                                        - 12 -
discretion he believed he had under DEA policy, 3 given that he disbelieved

Watkins’ statements regarding Quary’s involvement in drug trafficking. On the

record before us, then, Watkins has not offered any evidence that the tape was

destroyed in bad faith.




      3
        We note that defense counsel has moved this court to take judicial notice
of the DEA’s Policy Manual, of which counsel obtained a copy for the first time
after oral argument before this court. According to the excerpts of the manual
that defense counsel attached to the motion, it appears that DEA policy in fact
does not grant agents such discretion. Section 6211.6 provides in part:

       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 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.
(Emphasis added.)
       Thus, although the manual casts doubt on Agent Walsh’s testimony, it was
not part of the record before the district court, and therefore we may not consider
it on appeal. See Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1549
n.1 (10th Cir. 1992); see also United States v. Judge, 846 F.2d 274, 276 (5th Cir.
1988) (declining to take judicial notice of DEA regulations where they were not
part of the lower court record). We therefore deny what is essentially a motion to
expand the record. However, we assume that DEA authorities will review Agent
Walsh’s testimony and take any appropriate steps if they determine that Agent
Walsh was not following DEA policy.

                                       - 13 -
B. Other Alleged Errors

      Watkins also argues that the admission of several hearsay statements

violated her Sixth Amendment right of confrontation. In addition, Watkins

contends that the prosecution acted improperly in eliciting testimony from Agent

Walsh regarding phone records retrieved from Watkins’ trash, after the court had

ruled more than once that the records themselves were inadmissible due to the

government’s untimely production of this evidence. As counsel did not object to

this testimony at trial, our review is for plain error only. See Fed. R. Crim. P.

52(b). We have reviewed the record cites for each of the alleged hearsay

violations and are convinced that in each instance the statements were offered not

for their truth, but to show res gestae. Because there were no objections from

counsel, and because the statements were offered for a legitimate, nonhearsay

purpose, we find that the district court did not plainly err in admitting these

statements. As for Agent Walsh’s testimony regarding the telephone records, we

find that any error in the admission of these statements was harmless.

      We have reviewed Watkins’ other allegations of error and find them to be

without merit.

      Accordingly, we AFFIRM Watkins’ conviction and sentence.

                                        ENTERED FOR THE COURT

                                        David M. Ebel
                                        Circuit Judge

                                         - 14 -
