U.S. v. Brimage, s. 96-1269

• Decision Date: 06 May 1997
• Docket Number: 96-1455,96-1998 and 96-1999,Nos. 96-1269,s. 96-1269
• Citation: 115 F.3d 73
• Parties: UNITED STATES of America, Appellee, v. Frank BRIMAGE and Tracy ROSS, Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 73

115 F.3d 73

UNITED STATES of America, Appellee, v. Frank BRIMAGE and Tracy ROSS, Defendants, Appellants.

Nos. 96-1269, 96-1455, 96-1998 and 96-1999.

United States Court of Appeals First Circuit.

Heard May 6, 1997.

Decided June 9, 1997.

Frances S. Cohen, Boston, MA, with whom Michael D. Vhay, C. Dylan Sanders and Hill & Barlow PC, were on brief, for appellant Tracy Ross.

Peter B. Krupp, Boston, MA, with whom Lurie & Krupp LLP, was on brief, for appellant Frank Brimage.

James F. Lang, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

A sting operation in the gun 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.

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 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 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 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, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), 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: 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...