
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          Nos. 93-1276               93-1576                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                     NOEL FEMIA,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                         and DiClerico, Jr.,* District Judge.                                              ______________                                _____________________               Paula  J. De Giacomo, Assistant United States Attorney, with               ____________________          whom A.  John Pappalardo, United  States Attorney,  and Heidi  E.               ___________________                                _________          Brieger,  Assistant United  States Attorney,  were  on brief  for          _______          appellant.               James E.  Carroll, by  Appointment of  the Court,  with whom               _________________          John J.  O'Connor  and  Peabody  &  Arnold,  were  on  brief  for          _________________       __________________          appellee.                                 ____________________                                  November 18, 1993                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    TORRUELLA, Circuit  Judge.  The government appeals from                               ______________          a district court pretrial order suppressing the testimony  of its          central  witness in  the prosecution  of defendant-appellee  Noel          Femia for  various drug  crimes.  We  have jurisdiction  under 18          U.S.C.   3731.   The district  court suppressed the  testimony in          order  to  remedy a  perceived violation  of Femia's  due process          rights,  resulting   from  the  government's   allegedly  grossly          negligent destruction of tape recordings of conversations between          the witness  and other  co-conspirators.   For  the reasons  that          follow,  we reverse  and  remand with  directions  to vacate  the          suppression order.                                          I                                          I                    In   the  summer   of   1985,  the   Drug   Enforcement          Administration ("DEA")  entered an  on-going  investigation of  a          metropolitan Boston cocaine  organization known as the  "Triple X          Public  Service  Corporation"  ("Triple   X"),  which  was  being          conducted by the  Ashland, Massachusetts Police Department.   The          DEA  recruited one  of the  three founding  members of  Triple X,          Christopher  LaPlante,  who   was  also  its  bookkeeper,   as  a          government  informant   in  exchange  for   a  plea   agreement.1          LaPlante  informed the DEA  that Femia and  co-conspirator Benhur          Perea were the two suppliers of cocaine  to Triple X.  As part of          the  investigation, over  a period  of  several months,  LaPlante          secretly tape-recorded conversations  with various employees  and                                        ____________________          1  The  other two founders allegedly  were Alan Stone  and Edward          Intinarelli.                                         -2-          customers of Triple  X.  In all, the  government made twenty-four          tape recordings of conversations between LaPlante and alleged co-          conspirators or customers of Triple X (the "LaPlante tapes").                    On  October 3, 1986,  a federal  grand jury  returned a          multiple  count  indictment  charging  Femia  with conspiracy  to          distribute  cocaine,   possession  of  cocaine   with  intent  to          distribute,   and   aiding  and   abetting,   in  violation   of,          respectively, 21  U.S.C.    846,  841(a)(1), and 18 U.S.C.    2.2          The  indictment also  charged  eight  other  defendants  and  co-          conspirators,  whose cases  are  not part  of  this appeal,  with          various drug  crimes.  The  government secured the  conviction of          the other  eight defendants  by   trial or guilty  plea in  1987.          Femia remained a fugitive until July of 1992.                    The DEA prepared three files for the co-conspirators in          the drug prosecution: one each  for Perea, Femia, and Alan Stone,          one  of Femia's alleged co-conspirators.  The LaPlante tapes were          physically stored  in Perea's  file.  The  Perea file  was cross-          referenced  to the  Stone  and  Femia files.    According to  DEA          Special  Agent Albert G. Reilly, the cross-reference was intended          to indicate that  the cases were connected and  that the evidence          in each  file pertained to the  other cases.  Apparently,  it was          the  intent that an agent closing  the Perea file would not order          the routine destruction of evidence  in the file until all cross-          referenced cases were closed as well.                                        ____________________          2  A racketeering charge for violation of 18 U.S.C.   1962(c) was          dismissed.                                           -3-                    On  October 8, 1987, a newly-assigned DEA agent, Albert          Lively,  authorized the  destruction of  all  the LaPlante  tapes          contained in the Perea file.  On that same day, Agent Lively made          a notation  in the  Femia file  that "this  case  is pending  the          arrest and prosecution of Femia."                    The  government finally  apprehended  Femia in  July of          1992.  As a result of requests for information discoverable under          Federal Rule of Criminal Procedure  16 and Brady v. Maryland, 373                                                     _____    ________          U.S. 83 (1963),  the government learned  that the LaPlante  tapes          had been  destroyed.  Apparently,  the destruction was  a mistake          that occurred because Agent Lively incorrectly failed to heed the          cross-referencing notation  linking  the Perea  file  to  Femia's          file, which should  have alerted him that the  tape recordings in          Perea's file  were to  be preserved  pending  the disposition  of          Femia's case.   According to  Agent Reilly, "[t]he fact  that the          tape  recordings  were  destroyed was  an  inadvertent  oversight          caused by  the three-part filing  system that had  been created."          The district court specifically found that the government did not          destroy  the  LaPlante  tapes  in  bad  faith,  but  rather,  the          destruction resulted from the government's gross negligence.3                    The  government,  however,  provided  some  information          regarding seventeen  of the twenty-four original tape recordings.          Tapes  and transcripts  had been  made  for six  of the  recorded                                        ____________________          3  Whether this conduct can be described as "gross" negligence is          not an issue  before us and  thus we express  no opinion on  this          matter except to indicate that we will assume that the finding is          appropriate for purpose of this appeal.                                         -4-          conversations (the  DEA obtained  copies of  six of  the original          tapes  from Perea's  counsel).4   In  addition, transcripts  were          made for  two other  tape recordings;5 no  copies of  these tapes          are available,  however.   Finally, the  government provided  DEA          Report No.  184, identifying the date, person recorded, and, with          respect to some  tapes, an extremely  cursory description of  the          subject  matter  of   the  recorded  conversation.6     Testimony          concerning  the  tapes  from  Agent  Reilly  and  Ashland  Police          Detective Thomas Kinder  was also presented to the  court.  Agent          Reilly contemporaneously monitored the recorded conversations and          Detective Kinder reviewed the tapes.                    By  affidavit,  Detective  Kinder   explained  that  he          transcribed seven of the tapes.  Secretaries at the DEA typed his          notes.  He verified that the typed transcripts accurately matched          his  notes and  again  listened  to tapes  to  confirm that  each          transcript was accurate and complete.  Kinder stated that the DEA          prepared the initial transcript of a conversation on February 13,          1986 (tape  N-14).   Because he  was not  satisfied with the  DEA                                        ____________________          4  These  recordings occurred November 5, 1985,  February 13, 18,          27, 1986, and March 18 and 25, 1986.          5    These are  transcripts  of tape  recorded  conversation that          occurred on February 4, 1986 and June 5, 1986.          6   These "summaries" are  of limited utility; for  example, some          provide   no  information   concerning   the   contents  of   the          conversations and others merely indicate that the subjects engage          in a "drug  conspiracy conversion."   The  most detailed  summary          contains  the unhelpful statement  that the subject  "admitted to          transporting multi-kilos of cocaine from Florida to Massachusetts          for Benhur  Perea et  al."  The  reports concern  recordings that          occurred on February  11, 1986, March 7 (two on this day), 11, 13          (two on this day), 18, and 25, 1986.                                         -5-          transcript  version,  he  prepared a  second  transcript  that he          believed was accurate and complete.                    Agent Reilly's affidavit  is to a  similar effect.   He          stated  that  he  listened  to  the  conversations as  they  were          recorded, determined that eight of the tapes were relevant to the          investigation, and had  those transcribed by the  Ashland police.          Although the  DEA transcribed  one of the  tapes, Reilly  had the          Ashland  police  produce  another version,  believing  that their          knowledge of the central figures and events in the  investigation          would produce a more accurate and complete transcript.                    Both Kinder and  Reilly explained  in their  affidavits          that  they had  listened to each of the sixteen  tapes which were          not transcribed  and determined that,  given the  investigation's          limited  resources and  their opinion  that  the tapes  contained          general  conversations that were not specifically relevant to the          core of  the Triple  X investigation, those  tapes should  not be          transcribed.    Both asserted  that  none  of the  sixteen  tapes          contained any  reference to Femia  or his code names  or numbers.                    ___          Agent Reilly  indicated that  he would  have ordered  transcripts          made of any conversation in which references were made to Femia.                    Femia  filed a motion to  dismiss the indictment, or in          the  alternative, to  suppress the  testimony  of the  government          witness, LaPlante, arguing  that the destruction of  the LaPlante          tapes denied him of material exculpatory evidence in violation of          Brady and its progeny.  After a suppression hearing, the district          _____          court denied  the motion  to dismiss, but  granted the  motion to                                         -6-          suppress.  This appeal followed.                                         -7-                                          II                                          II                    In   this   case   we   consider   the   constitutional          ramifications  of the destruction  by the government  of original          tape recorded evidence pertaining to a criminal defendant's case.                    It  is axiomatic that Brady and its progeny established                                          _____          that a defendant  has a due process right  to request and receive          evidence that the  government possesses which is material  to his          guilt  or punishment.   Id., 373 U.S.  at 87.   The Constitution,                                  ___          however, does not require a prosecutor "routinely to deliver  his          entire file  to defense  counsel."  United  States v.  Agurs, 427                                              ______________     _____          U.S.  97, 111  (1976).   In  recent years  the Supreme  Court has          developed a framework  to analyze "what  might loosely be  called          the  area of  constitutionally  guaranteed access  to  evidence."          California v. Trombetta, 467 U.S.  479, 485 (1984) and Arizona v.          __________    _________                                _______          Youngblood, 488 U.S. 51, 55 (1988) (each quoting United States v.          __________                                       _____________          Valenzuela-Bernal,  458 U.S.  858,  867  (1982)).    The  Supreme          _________________          Court's jurisprudence  divides cases  involving nondisclosure  of          evidence into  two distinct  universes.   Brady  and its  progeny                                                    _____          address   exculpatory   evidence   still  in   the   government's          possession.   Youngblood and Trombetta govern  cases in which the                        __________     _________          government no longer possesses the disputed evidence.                    The  standards established by the Supreme Court to deal          with evidence  that the government has lost or destroyed reflect,          in  part,  "the  difficulty  of  developing rules  to  deal  with          evidence destroyed  through prosecutorial neglect  or oversight."          Trombetta, 467 U.S.  at 486.  As  the Court stated  in Trombetta,          _________                                              _________                                         -8-          "[w]henever potentially exculpatory evidence is permanently lost,          courts face  the  treacherous  task  of divining  the  import  of          materials  whose contents are unknown and, very often, disputed."          Id.  The Court's pronouncements also demonstrate  respect for the          ___          difference  between  nondisclosure  cases,  which  involve  known                               _____________                          _____          quantities of evidence  and in which a new  trial may be ordered;          and  missing  evidence cases,  which  implicate only  potentially               _________________                                ___________          exculpatory  evidence  and  in which  the  possible  remedies are          dismissal  or suppression of the state's most probative evidence.          See id. at 486-87.          ___ ___                    Trombetta   and  Youngblood   together  established   a                    _________        __________          tripartite  test to determine  whether a defendant's  due process          rights  have been  infringed  by  law  enforcement's  failure  to          preserve evidence.   See Griffin v.  Spratt, 969 F.2d 16,  21 (3d                               ___ _______     ______          Cir. 1992); Jones v. McCaughtry, 965 F.2d 473, 476-77 (7th Cir.),                      _____    __________          cert. denied, 113  S. Ct. 360 (1992); United  States v. Rastelli,          ____________                          ______________    ________          870 F.2d 822, 833 (2d Cir.), cert. denied, 493 U.S. 982 (1989).                                         ____________                    In  Trombetta, the Court established two hurdles that a                        _________          defendant must  surpass to  show a  constitutional violation  for          missing evidence.  The court stated:                      Whatever duty the Constitution imposes on                      the  States  to preserve  evidence,  that                      duty  must be  limited  to evidence  that                      might be expected  to play a  significant                      role in  the suspect's defense.   To meet                      this    standard     of    constitutional                      materiality,  .  . .  evidence  must both                      possess  an  exculpatory value  that  was                      apparent   before   the    evidence   was                      destroyed, and be of  such a nature  that                      the defendant  would be unable  to obtain                      comparable evidence  by other  reasonably                                         -9-                      available means.          Trombetta, 467 U.S.  at 488-89.7  In Youngblood,  the Court later          _________                            __________          added  a third  element  when  it held  that  "unless a  criminal          defendant can show bad faith on  the part of the police,  failure          to preserve  potentially useful  evidence does  not constitute  a          denial of  due process of  the law."   Id.,  488 U.S. at  58.   A                                                 __          defendant   who  seeks  to  suppress  evidence  formerly  in  the          government's possession  therefore must show that the government,          in  failing to preserve the evidence, (1) acted in bad faith when          it   destroyed  evidence,   which  (2)   possessed  an   apparent          exculpatory value and, which (3) is to some extent irreplaceable.          Thus in missing  evidence cases, the presence or  absence of good          or bad faith by the government will be dispositive.                    Femia contends that  the missing evidence  test created          by Youngblood and Trombetta is  inapplicable to his case and that             __________     _________          the district  court properly  suppressed LaPlante's  testimony as          required by Brady.8   The thrust of Femia's  argument, we gather,                      _____          is that  the Youngblood  analysis  only applies  to evidence  "of                       __________          which no more can be said than that it could have  been subjected          to tests, the results of which might have  exonerated defendant."          Id., 488 U.S. at 57.    Here, because defendant requested and the          ___                                        ____________________          7   Although Trombetta  discussed the constitution's requirements                       _________          with respect  to state  law enforcement,  it  applies equally  to          federal agencies.          8   We  note that  applying  a  Youngblood rather  than  a  Brady                                          __________                  _____          analysis places a  substantially greater burden on  the defendant          in  that  he  must  demonstrate  bad  faith  by  law  enforcement          officials.   Accord   United States  v. Caicedo-Llanos,  960 F.2d                       ______   _____________     ______________          158, 161 (D.C. Cir. 1992).                                          -10-          government did not furnish evidence that the district court found          to  be material exculpatory  evidence, Femia contends  that Brady                                                                      _____          established and Youngblood  confirmed that such evidence  must be                          __________          excluded,  irrespective  of  the  good   or  bad  faith  of   the          government.  See Brady,  373 U.S. at 87; Youngblood, 488  U.S. at                       ___ _____                   __________          57.                    Femia asserts that  the record evidence  fully supports          the  district   court's  conclusion   that  the  LaPlante   tapes          constituted material  exculpatory evidence.   The  district court          found  that the  LaPlante  tapes  very likely  could  be used  to          impeach  LaPlante;  second,  the  tapes,  at  least  those  whose          contents  are discernible from  transcripts or  copies, contained          statements  that directly  exculpate  the defendant;  and  third,          because  the tapes implicated other individuals in crimes alleged          to have  been committed  by Femia, they  could be used  to create          reasonable doubt.9                    The district court appears to have treated the LaPlante          tapes  as a monolithic  whole rather than  distinguishing between          those tapes for which evidence of their contents exists and tapes          for which no copies or transcripts  were made.  As a result,  the          district court  incorrectly  applied  Youngblood.    Because  the                                                __________          Supreme  Court has prescribed different due process standards for          different  types of  nondisclosed  evidence,  we categorize  each          piece of evidence and separately discuss our resolution under the                                        ____________________          9    The  district   court  had  no  basis  to   make  a  factual          determination regarding the exculpatory value of tapes or portion          of tapes concerning which it had no concrete evidence.                                         -11-          appropriate  due  process  standard.    We  apply  Youngblood  to                                                             __________          evidence which no longer exists and Brady to exculpatory evidence                                              _____          in the government's possession.                    In  this case, we  find no  due process  violation with          respect  to evidence  that no  longer exists  because it  was not          destroyed  in  bad  faith.    As a  result,  the  district  court          improperly suppressed LaPlante's  testimony on the basis  of this          missing evidence.  With respect  to evidence that exists, we find          that the government complied with its obligation under Brady,  it                                                                 _____          disclosed the  evidence.  Thus,  to the extent that  the district          court  suppressed  LaPlante's  testimony  based  on  a  perceived          violation of Brady, it erred.10                       _____                    We begin then by analyzing  the six LaPlante tapes  for          which copies were made and provided to Femia after being obtained          from Perea's counsel.  Femia  claims and the district court found          that  these   tapes  contain  material   exculpatory  evidence.11          Femia argues that because the copies cannot serve as a reasonable          substitute for the originals -- he allegedly cannot verify  their          authenticity  or ensure  that no  tampering has  occurred --  the          district court properly suppressed LaPlante's testimony to remedy                                        ____________________          10  The characterization of evidence as either in existence or no          longer existing is a factual  determination.  The record is clear          as to which pieces of evidence presently exist.          11  For example, one of the transcripts of the February  13, 1986          tape  indicates  that  the   original  tape  apparently  contains          exculpatory  material.  The  tape records a  conversation between          LaPlante, Stone, and two others.   On that tape, Stone apparently          states:  "He's [Benhur  Perea] the only one bringing  coke in the          area, brother.  He was the only  one.  Him and Noel [Femia], man.          Noel, Noel don't do nothing no more."                                         -12-          the  government's   failure  to  disclose   material  exculpatory          evidence.  We disagree.                    No Brady violation has occurred with respect to the six                       _____          LaPlante  tapes  that  were copied  because  Femia  requested and          received copies of  these tapes prior to  trial.  It is  true, as          Femia  contends,  that  the six  copies  may  have been  altered,          damaged, or inexpertly copied from  the originals.  We will never          know, however,  with any degree  of certainty whether  the copies          are entirely  accurate reproductions  of the  originals.12   With          respect to  fragments of  the original tapes  that may  have been          irretrievably lost, we can say  no more than that those fragments          might  have  contained  material  exculpatory  evidence.    These          allegedly missing fragments, like the breath and semen samples at          issue in Trombetta and  Youngblood, can only be characterized  as                   _________      __________          potentially  exculpatory  evidence.13     In  this  circumstance,          having shown no bad faith by the government, the possibility that          the  copies of the  tapes may have  been altered, or  segments of          tape  may have been deleted, provides no  basis for finding a due          process violation.                                        ____________________          12  If, for  some reason, Femia could  not use the six copies  of          these  tapes  in his  defense,  we  would  be confronted  with  a          situation  in  which  we  knew   of  the  existence  of  material          exculpatory evidence that the government failed to tender.  Under          those circumstances, it  is quite likely  that a Brady  violation                                                           _____          would exist  and would warrant granting the defendant's motion to          suppress evidence.          13  The scientific tests required to determine  exculpatory value          involved  in  Trombetta   and  Youngblood  provide  no   relevant                        _________        __________          distinction.   In those  cases, some  scientific analysis of  the          disputed evidence was  required.  Here, someone had  to listen to          the allegedly missing fragments to determine exculpatory value.                                         -13-                    We  consider  next  the  tapes  for  which  Femia  only          possesses a transcript.  Femia complains that the transcripts are          of poor quality.  He points to the great discrepancy  between the          DEA transcript of  the February 13, 1986 tape (tape N-16) and the          Ashland  police version  as  proof that  the  transcripts do  not          reflect  important  material evidence.    The loss  of  the audio          portion  and  of   the  statements  that  were   negligently  not          transcribed by law enforcement agents presents the same situation          as the case  in which missing fragments of  conversation may have          been lost when  the six other tapes were copied.  We do not know,          and never will know, the content of statements that may have been          lost.  Contrary to the  district court's decision, no due process          violation  has  occurred.    The  government  has  disclosed  the          transcript evidence  allegedly possessing  exculpatory value,  as          required by Brady  and its progeny.   The lost audio  portion and                      _____          statements not transcribed are  only potentially exculpatory, and          the failure to retain that  evidence does not violate Femia's due          process  rights  because  the  government  did  not  destroy  the          evidence in bad faith.  Youngblood, 488 U.S. at 58.                                  __________                    With respect to those LaPlante tapes for which only DEA          Report No. 184 summaries exist and  the tapes for which no record          of content exists, the district  court clearly erred in finding a          due process violation because  these tapes were destroyed due  to          the government's gross negligence, not bad faith.  Id.                                                             ___                    While  the  failure  to  demonstrate that  the  missing          evidence in this case was destroyed in bad faith is sufficient to                                         -14-          reverse  the district  court,  we  note that  Femia  has not  met          Trombetta's materiality requirement for the missing evidence.  To          _________          satisfy   Trombetta's   constitutional    materiality   standard,                    _________          "evidence  must  both  possess  an  exculpatory  value  that  was          apparent  before the  evidence was  destroyed, and  be of  such a          nature that the  defendant would be  unable to obtain  comparable          evidence  by other reasonably  available means."   Trombetta, 467                                                             _________          U.S. at  488-89.  The  evidence before the district  court showed          that  any missing  evidence --  whether  one considers  allegedly          missing fragments  of the tapes  for which copies exist  or those          tapes  which no  longer  exist in  any  form --  did not  possess          exculpatory  value apparent before  law enforcement destroyed the                             _______________          tapes.   Agent Reilly  and Detective  Kinder provided  affidavits          stating  that  the  destroyed tapes  contained  no  references to          Femia, his  code names or  numbers.  Agent Reilly  also explained          that  any tape  containing references  to  Femia would  have been          transcribed.  The district court  presumably would have found the          destruction to have been in bad faith if it did not credit Reilly          and Kinder's evidence  and if the exculpatory  value was apparent          before  the destruction of the tapes.  Youngblood, 488 U.S. at 56                                                 __________          n.* ("The  presence or  absence of  bad faith  by the  police for          purposes of the  Due Process Clause must necessarily  turn on the          police's knowledge  of the exculpatory  value of the  evidence at          the time  it was  lost or  destroyed.").   However, no  bad faith          finding was made by the district court.  Femia therefore  did not          establish the  constitutional  materiality of  the lost  evidence                                         -15-          required to demonstrate a due process violation.                    We reverse  and remand  with directions  to vacate  the                       _______      ______          suppression order.                                         -16-
