
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        Nos. 96-1269, 96-1455, 96-1998, 96-1999                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                            FRANK BRIMAGE and TRACY ROSS,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Frances S. Cohen, with whom Michael D. Vhay,  C. Dylan Sanders and            ________________            _______________   ________________        Hill & Barlow PC were on brief, for appellant Tracy Ross.        ________________            Peter  B. Krupp,  with whom  Lurie & Krupp  LLP was on  brief, for            _______________              __________________        appellant Frank Brimage.            James F. Lang, Assistant  United States Attorney, with whom Donald            _____________                                               ______        K. Stern, United States Attorney, was on brief, for appellee.        ________                                 ____________________                                     June 9, 1997                                 ____________________                      LYNCH, Circuit Judge.  A sting operation in the gun                      LYNCH, Circuit Judge.                             _____________            trade involving a government informant resulted in the arrest            of  Frank Brimage and Tracy  Ross.  Brimage  was convicted of            being a  felon in  possession  of a  firearm and  ammunition;            Ross, of being a  felon in possession of ammunition,  both in            violation of 18 U.S.C.   922(g)(1).  Brimage was sentenced to            more than  11 years in prison;  Ross to more than  8 years in            prison.                       The primary  argument they make on appeal is that a            federal  agent  acted  in bad  faith  in  monitoring but  not            recording  their  conversations during  the  sting (thus  not            preserving  conversations said  to be  exculpatory)  and that            such  bad faith requires dismissal of the charges.  They also            argue that there was error in not requiring the government to            disclose prior investigative reports involving the government            informant, and that certain other evidence was Brady material                                                           _____            which  should have been  disclosed.  Ross  argues in addition            that he should  have been granted a new  trial based on newly            discovered exculpatory evidence and  that the district  court            erroneously concluded  it did  not have discretion  to depart            downward  to  make  him   eligible  for  a  residential  drug            rehabilitation   program.      Both   defendants   are   ably            represented, but  the record  reveals no  such errors  and we            affirm.                                          I.                                         -2-                                          2                      This  weapons  transaction  unfolded  in  a  Boston            neighborhood  which had been  plagued with drive-by shootings            and murders.  Freddy Pena, a supplier of both guns and drugs,            decided  to lessen  his  potential criminal  liability --  on            account  of pending  state  cocaine  charges  and  threatened            federal firearms charges -- by accepting an offer extended by            Special  Agent  Daniel Campbell  of  the  Bureau of  Alcohol,            Tobacco, and Firearms (the "ATF") to become an informant.                      To compensate  Pena for  his initial efforts  as an            informant,  the federal  authorities intervened  and arranged            for a  reduction  in Pena's  state  charges, and  they  never            brought the  threatened federal firearms charge.  Thereafter,            he earned  cash for his efforts,  and was paid  $600 for this            particular sting.                      This sadly common urban tale unfolded in January of            1995.  Frank Brimage then had a considerable criminal record,            including commitments  for rape, armed  robbery, and  assault            with  a deadly  weapon.   Tracy Ross  had a  relatively minor            prior  criminal record.  He had been a high school basketball            star who won a scholarship to college, but apparently flunked            out.   After this,  he worked intermittently,  and ultimately            descended into heroin addiction.   According to Ross, Brimage            was his dealer.                      Brimage usually hung out next to a liquor  store on            Blue Hill Avenue  in Boston.   Pena approached  him there  on                                         -3-                                          3            January 16,  1995 and asked him  if he had any  guns to sell.            Brimage replied  that he had a .32 caliber handgun and a .380            caliber  handgun  but  was not  going  to  sell  them.   Pena            reported the  conversation  to  his  ATF  contact,  Campbell.            Campbell told Pena to ask Brimage if he wanted to participate            in an armed robbery of a drug dealer.  Pena asked Brimage the            next  day, saying  that he  needed "two  guys and  two guns."            Brimage  responded "[t]hat's  me."   Ross  then joined  them.            Pena  and  Brimage  continued  discussing  the robbery;  Ross            indicated that he  wanted to participate  and asked how  much            money he  would get out of  it.  None of  these conversations            were recorded or monitored by the ATF.                      Pena told the ATF agent that Brimage and Ross  were            willing  to commit  the  robbery  on  January  19.    On  the            appointed  day, Agent Campbell met  Pena and took  him to the            police  station.    Pena  was strip-searched,  wired  with  a            transmitter, given a  car, and told where  to go and what  to            do.   Pena was kept under surveillance by three mobile units,            including  one  carrying  Agent Campbell,  who  monitored the            conversations  from Pena's  transmitter  on  an ATF  portable            radio.    Two  Boston  Police Detectives  were  also  in  the            unmarked vehicle with Campbell.                      Pena drove to  the vicinity of the  liquor store on            Blue Hill Avenue to pick  up Brimage and Ross.   Brimage told            Pena, in a  conversation overheard by two officers, that they                                         -4-                                          4            had to go to Greenville Street to get the guns.  Before doing            that, Brimage went into a store and emerged with a bag.  Ross            and  Brimage got into the car and drove to Greenville Street.            In an overheard conversation,  Brimage said the bag contained            tape.                      At Greenville Street, Brimage got out and went into            a building.   While  he was gone,  Ross again  asked how  the            money would  be divided.  Pena told him to ask Brimage.  When            Brimage  returned, Pena  drove to  a large  parking lot  in a            shopping center where  a Toys'R'Us  was located,  as the  ATF            agent had previously  directed.  En route, Pena  talked about            how  the drug dealer would not  resist so they would not have            to shoot  him.  At the  shopping center, Pena got  out of the            car  and walked  alone  into the  store,  ostensibly to  meet            someone  who  had  a  key  to  the  drug  dealer's  apartment            building.                      On signal, the police teams surrounded the car.  On            the floor  of the front  passenger's side, where  Brimage had            been seated,  the police found a  .380 caliber semi-automatic            pistol, loaded with six  rounds of ammunition.  On  the floor            of the rear passenger  side, where Ross had been  seated, the            ATF agent  found a  .32  caliber revolver,  loaded with  five            rounds, in a clear  plastic bag.  There were  no fingerprints            on the guns.   On the rear seat was a  white plastic bag with            two rolls  of duct tape.   Brimage and Ross were  arrested by                                         -5-                                          5            the Boston Police.   Throughout these  events on January  19,            Agent  Campbell   monitored   but  did   not  record   Pena's            conversations with the two defendants.                                         II.            Failure To Record Wire Transmissions            ____________________________________                      Defendants   advance  the   theory  that   the  ATF            deliberately failed to record  Pena's initial solicitation of            their participation  in the robbery and  the circumstances of            the  sting, in a  bad faith effort  to avoid  the creation or            preservation of  exculpatory evidence.  From  this they argue            that:   (1) the  government is  obligated not  to act  in bad            faith in  its decisions as  to which conversations  to record            (and monitor);  (2) that  the  appropriate remedy  for a  bad            faith failure to record is dismissal of the charges; (3) that            the  district  court was  obligated  to  hold an  evidentiary            hearing; and  (4)  that the  affidavits defendants  submitted            supported findings that the government acted in bad faith and            that the "lost" evidence was exculpatory and irreplaceable.                      The government  responds that it has no obligations            whatsoever to  record and  thus "create" evidence.   It  says            that  the application  of the  bad faith  test is  limited to            failure  to  preserve   already  existing  evidence  in   the            government's possession.    The government  argues  that  the            doctrines announced in California  v. Trombetta, 467 U.S. 479                                   __________     _________            (1984),  and  Arizona  v.  Youngblood, 488  U.S.  51  (1988),                          _______      __________                                         -6-                                          6            requiring the preservation  of existing  evidence, should  be            taken no further.   In  any event, the  government says,  the            defendants' allegations do not rise to the level of bad faith            under the  test this court used in  United States v. Femia, 9                                                _____________    _____            F.3d 990 (1st Cir.  1993), in the aftermath of  Trombetta and                                                            _________            Youngblood.  Femia, 9 F.3d at 993-95.            __________   _____                      The government is surely  correct that the decision            not to record a  conversation is categorically different from            the failure by  police to  maintain the breath  samples of  a            drunk driving defendant, as was the case in Trombetta, or the                                                        _________            failure to preserve  semen samples in a sexual  assault case,            as  happened in  Youngblood.   Those  cases  raise issues  of                             __________            destruction of  evidence closer  to those involved  in Femia,                                                                   _____            which  concerned the  destruction of  recorded conversations.            For the purposes of the Jencks Act, 18 U.S.C.   3500, we have            already recognized such a  distinction, holding that the Act,            which requires the production of all statements by government            witnesses relating to the  substance of their testimony, does            not  require   the  government  to  record   all  aspects  of            interviews with  witnesses, United  States v.  Lieberman, 608                                        ______________     _________            F.2d  889,  897 (1st  Cir. 1979),  or  always to  take notes,            Campbell  v. United States,   296 F.2d 527,  531-32 (1st Cir.            ________     _____________            1961).                      At the same time it is not particularly  helpful to            think  of the issue as  broadly as the  government frames it:                                         -7-                                          7            that  there  is  absolutely  no  duty  on  the  part  of  the            government  to  "create" evidence.    At  issue  here is  the            government's   decision   not    to   "create"    independent            verification evidence  in the form of  recordings and instead            to  rely on the memory of witnesses and their testimony about            what was said, and we limit our inquiry accordingly.                      The  breadth of  the defendants'  line of  argument            poses  its  own  problems.   It  is,  of course,  easy  for a            defendant to  raise a  claim that an  unrecorded conversation            should  have been  recorded.   Even if  the recording  of the            conversation would  have inculpated,  not  exonerated him,  a            defendant may get some  benefit from the government's failure            to record by raising the argument and flagging that issue for            the jury.                      The government is quite correct to point to another            problem  with the defendants' argument.   There is  a need by            law enforcement personnel for considerable flexibility in how            they  go about  their investigations,  and courts  should not            intrude into this area.  That  interest is somewhat lessened,            but  not eliminated here, by  evidence that the  ATF may have            violated its  own somewhat ambiguous regulations  in deciding            not to record  the sting operation  or the initial  contact.1                                            ____________________            1.  The   pertinent  ATF  policy   required  "all  undercover            contacts by . .  . confidential informants" to  be "supported            by electronic  surveillance monitoring/recording in  order to            enhance special  agent/officer/confidential informant safety,            as well as to collect evidence in the investigation."                                         -8-                                          8            The government's  interests may,  however, be thought  to cut            another way  in this matter.  As this court recently noted in            rejecting  a   Jencks  Act  challenge  to   the  practice  of            government agents not to take notes or record interviews with            government witnesses:                      By adopting a "what we don't create can't                      come   back   to   haunt  us"   approach,                      prosecutors demean their primary mission:                      to  see that justice is  done. . .  .  By                      and  large,  the legitimate  interests of                      law  enforcement will be better served by                      using  recording equipment  and/or taking                      accurate notes than by  playing hide-and-                      seek.            United States  v.  Houlihan, 92  F.3d  1271, 1289  (1st  Cir.            _____________      ________            1996).                      The issue  is whether the fair trial  rights of the            defendants  have  somehow been  violated  by  the failure  to            record.  Some situations may raise concerns about whether the            government is putting the due process rights of defendants at            risk.  Here, of  the six persons who heard  the conversations            and  could  testify  to them,  four  were  on  the government            payroll  (the  three  officers  and the  informant)  and  the            remaining  two, the defendants, would have had to waive their            Fifth Amendment right to remain silent in order to testify to            their  versions  of   the  conversations.     However,   that            situation, absent a good  deal more, is not in  itself enough            to raise due process concerns.                                         -9-                                          9                      Given the vastly  different fact patterns in  which            this  issue  may  arise,  we  see  no  reason  to  adopt  the            government's  position that  a  decision by  law  enforcement            officials not to record key conversations (to be relied on in            the  prosecution) between  a  defendant  and  a  confidential            informant may  never be probed  to determine if  the decision            was made in bad faith.                      Neither  do we adopt  the mirror  rule that  such a            test is always appropriate,  as defendants would have us  do.            Instead  we turn  to what we  said once  in a  case raising a            similar claim:                           Perhaps  there may  be a  case where                      selective recording  presents a reviewing                      court with constitutional  concerns.   We                      need   not   speculate  on   this  score,                      however, for  this is  surely not  such a                      case.            United States v. Chaudhry, 850 F. 2d 851, 857 (1st Cir. 1988)            _____________    ________            (rejecting  due process  claim of  selective recording  where            defendant did not assert government acted in bad faith).                      Nothing about the circumstances  of this case or in            defendants'  meager proffer comes  close to  raising concerns            that  Agent Campbell's decision not to record was made in bad            faith.  Brimage submitted an  affidavit, in which  he made no            claim that  the statements attributed  to him were  false but            said  only  that  "The  statements  that  I  made  during  my            conversations with Freddy Pena, if taken in context, are much            more innocuous than the statements . . . attributed to me out                                         -10-                                          10            of context . . . ."  Ross submitted an affidavit from counsel            also suggesting that  the statements by her client  should be            understood in  context.  Both  counsel took advantage  of the            lack of  context and  argued  to the  jury the  issue of  the            government's failure  to record.   Their proffer has  quite a            distance yet to go before it raises the spectre of bad faith.                      Defendants rely  heavily on another argument:   the            allegedly implausible nature of Agent  Campbell's articulated            reasons  for  not  recording.    Defendants   largely  ignore            Campbell's testimony that his squad usually monitored but did            not record sting  operations and that the primary  reason for            doing even  that was  to protect the  confidential informant,            not  to create  evidence.   Agent  Campbell testified  before            trial that he  did not record the  conversations here because            this was a joint state-federal operation and he  believed the            recordings would be inadmissible in state court.2                      At trial, Agent Campbell gave a somewhat  different            reason for not recording:   "I didn't  think I would have  to            rely  on anything that was said in  order to convict the both            suspects [sic]."   While the responses  were characterized by            the district court  as "lame," they are  not inconsistent and                                            ____________________            2.  The  dispute  between  the  parties as  to  whether  such            recordings  are  admissible   in  state   court  is   largely            irrelevant.   One cannot  say that the  agent's understanding            was plainly  wrong, see  Commonwealth v. Jarabek,  424 N.E.2d                                ___  ____________    _______            491,  493  (Mass. 1981),  that he  should  have known  it was            wrong, and thus that  it was reasonable to think  he had some            other nefarious motive.                                         -11-                                          11            do  not show bad faith.  In fact, Agent Campbell's assessment            of  the case  may have been  correct: the car  was clean when            Agent Campbell gave it to Pena  to use in the sting, Campbell            then monitored Pena's use of the car, and guns and ammunition            were  found  on  the  floor  of the  car  where  each  of the            defendants had been sitting.  The agent's testimony  does not            mandate an inference of bad faith.                      The claim that the district court was obligated, on            this  showing, to hold an evidentiary hearing on the issue of            bad  faith is without merit.   Such decisions  are within the            discretion of the district  court, United States v. Calderon,                                               _____________    ________            77 F.3d 6, 9 (1st Cir. 1996), and there was no abuse here.            Prior Investigative Reports            ___________________________                      Brimage and Ross argue  that the government's prior            investigative reports  should have been disclosed  to them as            they would have demonstrated the informant's  modus operandi.            This information might, they say,3 have shown  that, in prior            stings,  Pena  attributed to  others  the same  incriminating            comments he now  attributes to  them.  This,  in turn,  might            have shown that Pena  was confused about who said  what when.            Defendants also argue that the  reports might have shown that            Pena had an opportunity to plant  weapons and that he knew he            could successfully attribute incriminating remarks  to others                                            ____________________            3.  Defendants  have  reshaped  their arguments  somewhat  on            appeal.   While there  may be something  to the  government's            waiver argument, the same result is reached on the merits.                                         -12-                                          12            if he  was not being  recorded.  By  not having  the reports,            they say, they  were deprived of their Sixth  Amendment right            to cross-examine Pena effectively.                      Although  the  trial judge  preliminarily disagreed            that  the  reports  were  discoverable  exculpatory  material            within  the terms of Brady  v. Maryland, 373  U.S. 83 (1963),                                 _____     ________            she did, at  the defendants' request,  review the reports  in            camera  before  trial.    Judge  Saris  concluded  that  they            contained no  exculpatory  information.   The  defendants  at            trial raised for the first time the argument that the reports            were Jencks  Act material.   Judge Saris  again reviewed  the            reports and  again ruled they  were not exculpatory  and were            not Jencks Act material.  In fact, she found that the reports            tended to buttress Pena's testimony.                      Our review of these  determinations is for abuse of            discretion.    United  States v. Femia,  57 F.3d 43,  45 (1st                           ______________    _____            Cir. 1995)  (Jencks Act material); United  States v. Perkins,                                               ______________    _______            926  F.2d 1271, 1276 (1st  Cir. 1991) (Brady  material).  The                                                   _____            prosection vigorously  disputes that these reports are Jencks            Act  material  because  the  reports  involved investigations            other than  the one in this  case.  We need  not resolve that            argument.  This case does not provide the occasion to explore            the parameters of the  Jencks Act requirement that statements            be produced "which relate[] to the subject matter as to which            the witness has  testified."  18 U.S.C.   3500(b).   Like the                                         -13-                                          13            district  court, we  have reviewed  the reports  submitted in            camera.   We readily hold  that the conclusions  drawn by the            trial judge were not an abuse of discretion.            The Motions for New Trial            _________________________                      1.  The Victoria Pena Evidence                      ______________________________                      Defendants   argue  from   the  premise   that  the            impeachment of Freddy  Pena was key  to the defense,  despite            the  fact  that  the   firearms  and  ammunition  were  found            virtually  at their  feet.   Even accepting the  premise, the            defense acknowledges that it knew at trial that Pena had been            arrested  in 1989 and charged  in state court  with a cocaine            trafficking count, that the trafficking charge was reduced to            a possession  charge, and  that  Pena was  sentenced to  time            served.                      What defendants  did not  know, they say,  was that            the charge was reduced  because Pena's sister, Victoria Pena,            had worked as  an informant for  the state  police in a  case            involving  another drug  dealer, Jose  Calderon.   In January            1996, four months after the conviction,  Brimage sought a new            trial  based on  the  government's failure  to disclose  this            information.  The district court held that the government had            not suppressed  the information within the  meaning of United                                                                   ______            States v. Osorio, 929 F.2d 753 (1st Cir. 1991),  and that the            ______    ______            evidence was not  material in  the sense of  requiring a  new            trial.                                         -14-                                          14                      The  denial  of  the  motion  for a  new  trial  is            reviewed for a  manifest abuse of discretion.   United States                                                            _____________            v. Tibolt,  72 F.3d 965, 972  (1st Cir. 1995).   There was no               ______            such  abuse.   We  cannot say  that  this evidence  "would so            undermine  the  government's  case  as  to  give  rise  to  a            'reasonable' probability of acquittal on retrial."  Id.                                                                ___                      Defendants  say that  the  Victoria  Pena  evidence            would  have permitted them  to pursue two  different lines of            examination:  that Pena was an incorrigible drug and firearms            recidivist and that Pena lied when he testified at trial that            his  sister  Victoria had  never  dealt  drugs  out of  their            mother's home.                      A Brady  violation occurs when "(1)  the prosection                        _____            . . .  suppress[es] or  withhold[s]  evidence,  (2) which  is            favorable,  and (3) material to the  defense."  United States                                                            _____________            v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991).   We bypass the               _______            Osorio issue  of whether the government  had this information            ______            and suppressed it  and go directly to the  third prong of the            Brady  analysis.  We agree  with the district  court that the            _____            evidence is not material and our confidence in the verdict is            not  undermined by  the  fact that  the  defense lacked  this            information.                      Pena's character, if not unblemished  before cross-            examination,  was  thoroughly  and  ably  sullied  in  cross-            examination.  Two pages of the district court's order denying                                         -15-                                          15            the  motion for a new  trial were devoted  to descriptions of            the  impeachment of  Pena.   His  characteristic devotion  to            drugs  and guns  was explored.   As  to the  "lie" about  his            sister, Pena testified only that she had never sold drugs out            of her mother's home, and none  of the new information is  to            the  contrary: it only shows that she worked as an undercover            informant for the state police.                      The premise of the entire argument -- that the case            turned on the impeachment of Pena -- is itself flawed.  There            are  the  telltale  guns and  ammunition:    the most  likely            explanation  was that  the defendants  were in  possession of            them.                      2.  Ross' Motion for New Trial                      ______________________________                      One  month after  the  jury verdict,  Ross filed  a            motion  for a new trial based on newly discovered evidence: a            statement by  Michael  Holmes, Brimage's  cellmate after  the            arrest.                      The  district court  heard evidence and  found that            soon after Brimage was arrested:                      Brimage told Mr. Holmes that he (Brimage)                      had  been  "set-up"; that  Ross  had only                      been  along  for  the  ride  as  a  "drug                      tester"; and  that  Ross' high  bail  was                      hard  to understand, because Ross had had                      "nothing  to do  with  it."   In a  later                      conversation,  Brimage  told  Mr.  Holmes                      that Ross was "in the back seat all high"                      and didn't  know what was  going on;  and                      that  he (Brimage)  would tell  the court                      that Ross had nothing to do with it.                                         -16-                                          16            It  is  worth  observing that  Holmes  is  the  son of  Ross'            fiancee.                      This  claim  is  subject  to the  same  review  for            manifest abuse of  discretion as the  other new trial  motion            and comes  to the same end.  The district court found, and we            agree,  that Ross  failed  to be  diligent  in attempting  to            secure  Holmes'  testimony  before  the trial  ended.    Ross            himself knew of the  alleged conversation between Brimage and            Holmes within a month or  two of the arrest and while  Holmes            was  still in jail and thus reachable.   In all events, it is            unlikely that  this new  evidence would have  resulted in  an            acquittal.  Ross twice asked what his share of the take would            be, and a gun  and ammunition were found virtually  under his            feet.            Ross' Sentencing Argument            _________________________                      Ross says  that he  is in  need of drug  treatment;            that the guidelines authorize  a downward departure, based on            a  likelihood of  rehabilitation,  to permit  a defendant  to            enter a residential Bureau  of Prisons drug treatment program            that is only open to those within 36  months of release; that            the district court misunderstood its authority to make such a            downward departure when  it sentenced him  to 97 months;  and            that the case should be remanded for resentencing.                      Ross  and  the  government  go  through  the  usual            dispute as to how  to characterize the issue, with  the hopes                                         -17-                                          17            of persuading us that the district court did or  did not make            an  error of  law.  United  States v. Saldana,  109 F.3d 100,                                ______________    _______            102-03 (1st Cir. 1997).                      The  question of whether the guidelines authorize a            downward  departure   to  permit  a  defendant   to  enter  a            residential  drug treatment  program  is a  thicket which  we            describe briefly but do not enter.  In pragmatic terms, there            is now only one residential drug treatment program, available            at 34 sites, in the federal Bureau of  Prisons system.  There            are  many more inmates who need treatment than there are beds            available in this residential program.  The Bureau of Prisons            has  decided its program is  best suited for  those within 36            months of release.   Here, Ross' guidelines range was  110 to            137  months  imprisonment.    He  could  not  be  immediately            eligiblefortheprogramunlessthedistrictcourt departeddownward.                      The legal  argument is  put in  these terms.   Ross            claims  the  district  court  had  the  authority  to  depart            downward pursuant to 18 U.S.C.   3553(a)(2)(D), which directs            the sentencing court to consider the need for "educational or            vocational  training,  medical  care,  or  other correctional            treatment  . .  .  ."    The  government  counters  that  the            guidelines  categorically prohibit  departures based  on drug            dependence.  U.S.S.G.   5H1.4.                      The circuits  are split on  this issue.   Some have            concluded  that, because drug rehabilitation presupposes drug                                         -18-                                          18            dependence,  the  guidelines   prohibit  any  departures   to            facilitate drug rehabilitation.   United States v. Ziegler, 1                                              _____________    _______            F.3d 1044,  1049 (10th Cir.  1993); United States  v. Martin,                                                _____________     ______            938 F.2d 162, 163-64 (9th Cir. 1991); United States v. Pharr,                                                  _____________    _____            916  F.2d 129,  133  (3d Cir.  1990).   Other  circuits  have            concluded  that,  while   the  guidelines  prohibit  downward            departures  due  to drug  dependence  per  se,  they  do  not            prohibit departures  based on  a defendant's potential  to be            rehabilitated.   United States v. Maier, 975 F.2d 944, 947-48                             _____________    _____            (2d  Cir. 1992); United States v. Williams, 948 F.2d 706, 710                             _____________    ________            (11th Cir. 1991).  We need not resolve the legal issue.                      Looking  at the  totality  of  the  record,  United                                                                   ______            States v. Grandmaison, 77  F.3d 555, 561 (1st Cir.  1996), we            ______    ___________            understand the district court to  have decided that, in light            of  specific facts  about  Ross, it  would  not exercise  any            discretion it  might have to authorize  a downward departure.            Ross had twice before  failed to complete drug rehabilitation            programs.  As the court told Ross' counsel:                      I have less sanguine feelings than you do                      about the  recidivism, particularly since                      here's a guy who  panned out of a program                      one time,  who is facing  trial and  then                      does it  a second time.   That worries me                      about  his  ability  to  comply  with the                      rules of the program.            Later the court ruled:                      I  do   not  think  that   I'm  going  to                      downwardly  depart on  the ground  of the                      likelihood  of  rehabilitation.   I often                      say that people make their  bed, they lie                                         -19-                                          19                      in  it, and  all  I have  on the  record,                      despite the  best of intentions,  is that                      he went  through  two drug  programs  and                      they didn't work out.            The trial  court  is in  the  best position  to make  such  a            discretionary judgment.   That discretionary decision by  the            trial court is not subject to our review.                      To  complete the  picture, we  note that  the trial            court did recommend  to the  Bureau of Prisons  that Ross  be            admitted  to  an  alternative  600-hour  drug  rehabilitation            program while in prison.                      Affirmed.                      ________                                         -20-                                          20
