
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1826                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  RICHARD MARSHALL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            Gordon  D. Fox, with  whom David  A. Cooper  and Cooper  & Sanchez            ______________             ________________      _________________        were on brief, for appellant.            Craig  N.  Moore, Assistant  United  States  Attorney,  with  whom            ________________        Sheldon  Whitehouse, United  States  Attorney, and  Zechariah  Chafee,        ___________________                                 _________________        Assistant United States Attorney, were on brief, for appellee.                                 ____________________                                    March 31, 1997                                 ____________________                      LYNCH,   Circuit  Judge.    The  Providence  police                      LYNCH,   Circuit  Judge.                               ______________            arrested Richard  Marshall and another individual  in a Rhode            Island hotel  room for  possession of  heroin with  intent to            distribute  and  conspiring  to  do  the  same.    Initially,            Marshall was acquitted on the  conspiracy count, but the jury            deadlocked on  the possession with  intent charge.   A second            trial,  limited  to the  charge  of  possession with  intent,            resulted in a guilty  verdict.  Marshall was sentenced  to 72            months' incarceration.                       Marshall argues on appeal that his conviction  was            brought about  by a  series of errors:  the district  court's            denial of his  motion to  suppress, its failure  to make  the            police produce  a tape recorder and tape which may or may not            have  been in  the hotel  room, and  its limitation  of cross            examination; a DEA agent's inconsistent  testimony before the            grand  jury  and at  trial;  and improper  statements  by the            prosecutor in his closing argument.   We reject these  claims            and affirm the conviction.   The issue which merits  the most            discussion is the contention about the "missing evidence."                                          I.                      We outline the  facts only as necessary  to set the            framework for the issues, because Marshall does not challenge            the  overall sufficiency  of  the evidence.    To the  extent            Marshall  challenges  the  sufficiency  of  the  evidence  to            support the  trial judge's  determination against him  on the                                         -2-                                          2            motion to suppress,  the evidence is  described in the  light            most  favorable   to  the  government.     United  States  v.                                                       ______________            Hernandez, 1997 WL 109200, *1 (1st Cir. Mar. 17, 1997).            _________                      On the  morning of November 30,  1994, a Providence            police lieutenant received  a phone call from  the manager of            the  Day's Hotel in Providence.  The manager reported that he            suspected there  was drug  activity in  Room 312 involving  a            Richard   Marshall   and  explained   the  reasons   for  his            suspicions.    The  federal Drug  Enforcement  Administration            ("DEA")  was brought  into  the case.    The officers  did  a            background check  on  Richard Marshall  and  came up  with  a            criminal record and a  photograph.  They drove to  the hotel,            where  the manager confirmed there  had been a  heavy flow of            traffic  in  and  out  of  Marshall's  room,  identified  the            photograph as being of Marshall, and said Marshall had listed            his  car as a Mercedes  Benz on the  hotel registration card.            While  the officers were in the lot looking for the Mercedes,            Marshall  appeared.   The officers identified  themselves and            asked if they  could speak  with him.   Marshall agreed,  and            when they said  there had been complaints about  the activity            in his room, he said he had "his girl" in the room.                       The officers asked which  was his car, and Marshall            pointed  to a  Toyota, which  had a  different license  plate            number than the one  he had listed on the  registration card.            The officers asked  permission to look  in the car;  Marshall                                         -3-                                          3            agreed,  and they searched the car  but found no drugs.  When            asked, Marshall  denied ever  having been arrested,  but when            shown his arrest record, started to chuckle.                      The officers  asked Marshall  if he minded  if they            went to his room.  He said he did not mind  and repeated that            his girl was there.  They all went  up to the room.  Although            Marshall  had his  room key,  he knocked  on the  door before            opening it.                      There  was no  woman  in  the  room.    There  was,            however,  a  man,  Thomas  Dantzler,  soon to  become  a  co-            defendant.   In addition,  there was a  paper bag  protruding            from  between the mattress and the  box springs of one of the            beds.  The bag contained  almost 200 grams of heroin,  with a            street value of about $26,000.                                         II.                      We address Marshall's claims seriatim.                                                   ________            Exculpatory Evidence Claim            __________________________                      Marshall  asserts  that  he  had  a  micro-cassette            recorder, switched to the  "on" position, in the room  at the            time of his arrest,  that the tape captured what  happened in            the  room both before and  during the arrival  of the police,            and  that the  tape  would exculpate  him.   It  would  prove            exculpatory in at  least two  senses, he submits:   it  would            show that he  and Dantzler  were in fact  talking about  rock            concert promotions, not  drug dealing, and  it would tend  to                                         -4-                                          4            support his version of  the facts -- which  differs radically            from  the  officers'  version   --  relevant  to  his  Fourth            Amendment  claims.    There  is  some  room  for  skepticism:            whatever his  conversation with  Dantzler, the drugs  were in            his room, and on the motion to suppress, the court found that            he had consented to  the officers' request to enter  his room            before they entered the room.  Nonetheless, the government is            ______            obligated  to  produce exculpatory  evidence to  a defendant.            Brady v. Maryland, 373 U.S. 83 (1963).            _____    ________                      We set the factual  stage.  Marshall testified that            he recorded  his conversation  with Dantzler about  a concert            they  were  promoting and  that  he  left the  tape  recorder            running when he left the hotel room to go to the parking lot.            This was done,  he said,  to keep track  of whether  Dantzler            used  his telephone.  He  says the recorder  would still have            been running when he returned to the room and that one of the            detectives picked it up and made a remark about it.                      The officers who  were present in  Marshall's hotel            room  tell  a  different story.    DEA  Agent Mansolillo  and            Detective Cross both testified  that they did not see  a tape            recorder  in the room.  Detective Lauro indicated that he saw            a "narrow" "electronic device" in the room, which he  thought            "might have  been a tape  recorder."  Detective  Lauro denied            picking  it up  or  saying anything  about  it.   The  fourth            officer,  Detective Gerstmeyer, though cross-examined at some                                         -5-                                          5            length by defense  counsel, was  never asked  whether he  had            seen  a tape  recorder.   The officers  did seize  some small            electronic equipment (two beepers, two portable phones, and a            small calculator), but none of them remembered seizing a tape            recorder.                      Agent  Mansolillo took  control  of  the drugs  and            other seized  evidence, but unfortunately did  not prepare an            inventory.   Later, both  the prosecutor and  defense counsel            examined  that evidence and did  not find a  tape recorder or            tape.    The  court  asked  the  prosecutor  whether  he  had            specifically questioned the officers  on the existence of the            recorder;  he replied that he  had not.   The court requested            that the prosecutor  do so.   The prosecutor  did check,  but            with only two of the four officers.  The court instructed the            prosecutor  to go back and check with the other two officers;            the prosecutor failed to  do so, but defense counsel  did not            pursue the issue any further.  The judge stated that he could            not require the government to produce something which it said            it  did  not have.    Defense counsel  did  cross-examine the            officers  about  the tape  recorder  and  argued the  missing            evidence theory to the jury.                      Marshall's  exculpatory  evidence argument  has two            predicates:   that the recorder and tape existed and that the            contents of the tape were exculpatory.  His claim flounders.                                         -6-                                          6                      Marshall  does  not argue  that the  government did            possess  the tape recorder and  tape and destroyed  it in bad            faith.   Cf. Arizona v. Youngblood,  488 U.S. 51 (1988).   He                     ___ _______    __________            does not  even argue  that  the government  removed the  tape            recorder and tape from the hotel  room.  He simply says  that            the  recorder was there, the government  agents were aware of            it, the agents were the ones who seized the evidence, and the            tape should have been produced.                      United States v. Femia, 9 F.3d 990 (1st Cir. 1993),                      _____________    _____            which the government cites  as dispositive, does not directly            address the issue here.  In  Femia, there was no dispute over                                         _____            whether certain  tape recordings  existed; the issue  was the            consequences of the  government's inadvertent destruction  of            the tapes.                      The government also cites United States v. Pedraza,                                                _____________    _______            27  F.3d  1515 (10th  Cir.  1994), which  is  more pertinent.            There the defendants claimed  that a government informant had            taped  certain calls  and that  the government had  failed to            produce  the tape recordings of  the calls.   Id. at 1526-27.                                                          ___            The  court  concluded  that the  defendants  "have  presented            insufficient evidence  that the  government either  failed to            turn over 'missing tapes,'  or that it destroyed them  in bad            faith.  The fact  of the matter is, [defendants]  have failed            to  produce any  convincing  evidence that  these tapes  ever            existed."  Id.  at 1527.  The defendants' claim  was based on                       ___                                         -7-                                          7            an equivocal  statement from the informant  that he attempted            to record all the calls.                      Like the  court in Pedraza, we  think the defendant                                         _______            here bore the initial burden of persuading the district court            that  there  was reason  to  believe  the recorder  and  tape            existed.  He did not do so.  Absent a rare case in  which the            government  may be in a better position than the defendant to            disprove the existence of evidence claimed to be exculpatory,            there  is   no  unfairness  in  placing  the  burden  on  the            defendant.  It  is difficult for  the government to  disprove            the existence of  something and easy for defendants  to claim            that  something  existed and  was  exculpatory  but that  the            government failed to preserve it.                      Placing the initial burden on the defendant is also            consistent with  the general law in the  area.  Even where it            is  undisputed  that "missing  evidence"  exists,  it is  the            defendant's  burden to  show that  the evidence  is material,            that is,  that "there is  a 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).            ______                      Defendants also  bear a  two-part burden to  show a            constitutional   violation  when  the   government  fails  to            preserve evidence on their  behalf.  California v. Trombetta,                                                 __________    _________            467  U.S. 479  (1984) (breath  alcohol test).    The "missing                                         -8-                                          8            evidence"  must  possess  an  "exculpatory   value  that  was            apparent before the  evidence was destroyed" and must  be "of            such  a nature that the  defendant would be  unable to obtain            comparable  evidence  by other  reasonably  available means."            Id. at 489;  see also Femia,  9 F.3d at  993.  In Arizona  v.            ___          ___ ____ _____                       _______            Youngblood,  the Court imposed a third  burden on a defendant            __________            where   the   potentially  exculpatory   evidence   has  been            destroyed: that of showing the government acted  in bad faith            in  destroying the evidence.   488  U.S. at  58.   Under this            precedent, absent some unusual situation, the initial  burden            is  on  the defendant  to show  the  evidence existed.   That            burden was not satisfied here.                      The  related  evidentiary claim  that  the district            court  improperly limited the  cross-examination of Detective            Lauro, as beyond the scope of direct, is without merit.            Fourth Amendment Claims            _______________________                      Marshall makes two Fourth Amendment  arguments: (1)            that he did not  consent to have  the police enter his  room,            and therefore all evidence that came from the room was seized            illegally, and (2) that he  was under de facto arrest.   Both            contentions require  that Marshall's version of  the facts be            accepted and the government's version rejected.  The district            court's factual determinations depended in large part on whom            the court believed, as the testimony of the witnesses painted            two very different scenarios.  The district court disbelieved                                         -9-                                          9            Marshall's version.  Factual findings by the judge may not be            reversed   unless  clearly  erroneous.     United  States  v.                                                       ______________            Cleveland, 1997 WL 61397, *7 (1st Cir. Feb. 18, 1997).  There            _________            can  be no  clear error  where factual  findings turn  on the            credibility  of the  witnesses who  appear before  the judge.            United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990).            _____________    ____________            Defendant  having consented,  there  is  no Fourth  Amendment            issue  regarding  the  seized  evidence.   United  States  v.                                                       ______________            Zapata, 18 F.3d 971 (1st Cir. 1994).             ______                      The  district  court  also  disbelieved  Marshall's            testimony  on which he relies for the de facto arrest theory.            There being no  error in the finding  that Marshall consented            to the  officers' request  to  enter his  room, the  district            court's  conclusion that  there  was no  de  facto arrest  is            hardly clear error.                      For  the same reasons, we  uphold the denial of the            motion  to  suppress the  drugs.   The  trial judge  chose to            believe  the  testimony  of  the  officers,  who  provided  a            sufficient predicate.            Motion to Suppress Marshall's Statements.            ________________________________________                      Marshall   argues  that   the   court  abused   its            discretion  in  refusing  to  hear  his  motion  to  suppress            statements he made before  the drugs were found in  his room.            The district court found that Marshall had waived this motion            by failing to make it in a timely fashion.  We agree.                                          -10-                                          10                      Marshall  filed the  motion to  suppress statements            two months after  the date  the motions were  due.   Marshall            also  did  not  object  to  the  statements  when  they  were            introduced into evidence.   Because Marshall  failed properly            to raise the  issue in the district court, we do not consider            it.  United States v. Nunez, 19 F.3d 719 (1st Cir. 1994).  We                 _____________    _____            add  that the motion is  premised on Marshall's argument that            he did not give consent  to enter his room and, as  a result,            he was in custody and should have been informed of his rights            under  Miranda v. Arizona, 384  U.S. 436 (1966).   Thus, even                   _______    _______            had there  not been  waiver, the argument  would have  failed            because  the  court  determined  the  consent  issue  against            Marshall.            Grand Jury Testimony            ____________________                      The testimony given by DEA  Agent Mansolillo varied            slightly  at trial from the testimony he had given before the            grand jury about exactly where the bag of drugs was found and            about  the  sequence  of   actions  by  a  Providence  police            lieutenant who was  in the  room.  The  agent was  thoroughly            cross-examined  on the  point.   It appears  that this  is an            instance of  confusion or mistake  in the agent's  grand jury            testimony,  and there is nothing  in the record  before us to            suggest  perjury.   The dispute  about where  the drugs  were            found  in the room was largely  immaterial to the indictment:                                         -11-                                          11            whether the drugs  were under  the mattress or  not does  not            undermine the charge of possession with intent to distribute.                      Even  if there  were  an error  in  the grand  jury            process, and we do not suggest there was one, defendant had a            fair  trial,  and  the  verdict  renders  any  error  at  the            preliminary stage  harmless now.  United  States v. Mechanik,                                              ______________    ________            475 U.S. 66, 72-73 (1986).            Prosecutor's Closing Argument            _____________________________                      To   understand   Marshall's   objection   to   the            prosecutor's summation,  the procedural history  of the  case            must  be recalled.  This  is Marshall's second  trial; in the            first  trial, he was acquitted  of a charge  of conspiracy to            distribute drugs.                      Marshall  says  that   the  prosecutor   improperly            accused him of a conspiracy in the face of an acquittal, that            the  prosecutor relied on facts not in evidence, and that the            prosecutor improperly vouched for a  witness.  The first  two            points are related.                        While   the  prosecutor   never   used   the   word            "conspiracy,"  and  never  referred  to the  prior  trial  or            charges, Marshall says  that he  did so in  essence with  the            following argument:                      I submit to you that the two of them were                      working   together   and  this   is  what                      happened.   That the drugs  were flown in                      from Chicago that day.                      . . . .                                         -12-                                          12                      The defendant met Dantzler, the other man                      who  brought the  drugs in  from Chicago.                      And they set up together in that room and                      the plan, I submit  to you, was for them,                      for Marshall to be the middleman for  the                      sale of  those  drugs, the  wholesale  of                      those drugs to people in Providence.                      Marshall relies  on United  States v. McBride,  862                                          ______________    _______            F.2d 1316  (8th Cir. 1988),  where the Eighth  Circuit upheld            the trial  court's discretionary ruling awarding  a new trial            due to  three trial  errors.   One of  the errors involved  a            statement  made  by  a  prosecutor in  final  argument  which            appeared  to  refer to  counts  previously  dismissed and  to            conflict with  the  evidence.    Id.  at  1318.    Marshall's                                             ___            argument  is not  frivolous, but,  on balance,  we think  the            prosecution  did  not exceed  the  bounds.   The  presence of            Dantzler in the room and the quantity of drugs fairly support            the  "with intent  to distribute"  portion of  the possession            charge.                      The  prosecutor's  words  suggested,  we  think,  a            permissible  inference from  the evidence produced  at trial,            and  were  not a  reference to  the  conspiracy charge.   The            statement was within the allowable scope of argument.  United                                                                   ______            States  v. Ovalle-Marquez, 36 F.3d 212 (1st Cir. 1994).  Even            ______     ______________            if the prosecutor's remarks were an improper veiled reference            to   the  conspiracy  charge,   they  were  not  sufficiently            egregious to warrant a reversal of the verdict.                                         -13-                                          13                      The   argument  about  improperly  vouching  for  a            witness  is  based on  three  portions  of the  prosecution's            closing:                      Mr.  Marshall, in  effect,  has  said  by                      telling the version he is  saying, he, in                      effect, has said to  you, the police  are                      not telling  you  the truth.   That  they                      have  come in  here  and  taken the  oath                      about  what  happened,  and they  haven't                      told you the truth under oath.                      . . . .                      They say, I submit to you, they have told                      the    story    the    way    it    truly                      unfolded . . . .                      . . . .                      So, I ask you  in choosing between  these                      versions think carefully  about what  the                      police  could have  done  if  these  men,                      Steven Cross,  Detective Lauro, Detective                      Gerstmeyer, Detective Mansolillo had been                      people  who  would  deliberately come  in                      here and  tell you  the truth.   Yes, you                      will hear undoubtedly  in summation  that                      Detective  Mansolillo  made a  mistake in                      the  Grand Jury.   People  make mistakes,                      and he corrected it here.  All right.            Defendant  did not object to  what he now  attacks as witness            vouching,  and so  our review  in this  context is  for plain            error.  United States v. Grabiec, 96 F.3d  549, 550 (1st Cir.                    _____________    _______            1996); United States v. Sepulveda, 15 F.3d 1161, 1187-88 (1st                   _____________    _________            Cir.  1993).   These  first two  comments  do not,  we think,            amount to  improper vouching.  United  States v. Cruz-Kuilan,                                           ______________    ___________            75 F.3d  59, 62  (1st  Cir. 1996)  (holding  that it  is  not            vouching  for  prosecutor to  say  that jury  should  come to                                         -14-                                          14            believe  on the evidence that the events occurred the way the            government's witnesses said they did).                      The  last statement  is  simply too  garbled to  be            vouching.  We  assume what  the prosecutor meant  to say  was            that the Providence  police would not permit  its officers to            deliberately tell lies.   He said, as  best we can tell,  the            opposite.  Defendant has  no complaint.  Even if  the remarks            were  inappropriate,  an  inappropriate  comment   is  not  a            reversible  error unless  it is  likely to have  affected the            outcome  of   the  trial.     United  States   v.  Cartagena-                                          ______________       __________            Carrasquillo,  70  F.3d 706,  713  (1st  Cir.  1995).   These            ____________            comments did not likely affect the outcome of the trial.                      It is an oft-heard complaint that the prosecutor is            putting  his personal endorsement on the scale.  Of course he            should not do so, but there are two sides to this.  Not every            factual  recitation in the  prosecutor's argument  must start            with a personal  disclaimer.   It is one  thing to  emphasize            personal endorsement.   It is  another for the  prosecutor to            refer  to the  evidence  in factual  form  as he  goes  along            without  constant qualification.   The  line, of  course, may            sometimes be close.  But an excellent test is whether counsel            contemporaneously  thinks  the  line  has been  crossed,  and            objects, which,  in turn, enables  the court to  instruct the            jury.   In the absence of such objections, plain error review                                         -15-                                          15            is  called for.  There is no  plain error here.  See Grabiec,                                                             ___ _______            96 F.3d at 550.                      The conviction is affirmed.                                        ________                                         -16-                                          16
