U.S.A. v. Brassard, 97-1885

• Decision Date: 06 March 2000
• Docket Number: No. 97-1885,97-1885
• Citation: 212 F.3d 54
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. KENNETH W. BRASSARD, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 54

212 F.3d 54 (1st Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. KENNETH W. BRASSARD, Defendant, Appellant.

No. 97-1885

United States Court of Appeals For the First Circuit

Heard March 6, 2000

Decided May 12, 2000

Peter F. Kuntz, by appointment of the court, for appellant.

Kenneth W. Brassard pro se.

Kathleen A. Felton, Attorney, Criminal Division, U.S. Department of Justice, with whom Margaret E. Curran, United States Attorney, and Richard W. Rose, Assistant U.S. Attorney, were on brief, for appellee.

Before: Boudin, Stahl, and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

Following a jury trial, Kenneth W. Brassard was convicted of attempted possession with intent to distribute cocaine, see 21 U.S.C. §§ 841(a)(1), 846, and use of a firearm during and in relation to a drug trafficking offense, see 18 U.S.C. § 924(c)(1). He was sentenced to consecutive terms of 5 years imprisonment, as well as four years of supervised release. His appeal alleges various and numerous errors by the district court at trial and sentencing, none of which has merit. Consequently, we affirm.

I.

The government says that Brassard was caught in a straightforward reverse sting operation; Brassard says he was entrapped. Each side presented its version of events to the jury, an outline of which follows.

Brassard owned a janitorial services company that had contracts to clean several Burger King franchises in southern New England. Seeking additional contracts, in June 1995, he went to speak to Ronald Rego, the manager of a Burger King. Unbeknownst to Brassard, Rego was an informant for the Providence Police. Rego testified that Brassard, in order to get a contract, offered him a kickback, which he refused. He then testified that, after he mentioned to Brassard that he also worked at a Spanish nightclub, Brassard asked him if he knew anyone "in the business," meaning the drug business. Rego testified further that Brassard pestered him until Rego put him in contact with a drug dealer. In fact, the person with whom Rego put Brassard in contact was a detective with the Providence Police.

Claiming entrapment, Brassard testified that Rego pressured him into finding buyers for his drugs, and Brassard, desperate for work after losing two accounts and having his car mysteriously ruined, feigned interest so that Rego would give him a cleaning contract. Finally, Brassard says, he agreed to a plan in which he would buy cocaine provided that Rego would take the drugs from him and sell them himself. Rego, Brassard said, coached him on how to act like a drug dealer and told him to bring a gun to the drug purchase. Rego was motivated, Brassard alleged, by a deal he had with the Providence Police to recoup a percentage of moneys forfeited as a result of his tips.

In January 1996, Rego's handler, Detective Frank DellaVentura of the Providence Police, gave Detective Freddy Rocha, an undercover narcotics officer, Brassard's phone number. Rocha was to pose as a drug dealer named Raul. DellaVentura said that Brassard was expecting "Raul" to call him about a drug deal. After a few conversations in which Rocha and Brassard discussed the quantity and price of the drugs, as well as, allegedly, Brassard's past history as a drug dealer, Brassard agreed to purchase a kilogram of cocaine from Rocha for $18,000. Brassard was to place a down payment of $5000, with the remainder secured by Brassard's mobile home as collateral. The conversations between Rocha and Brassard were recorded. Brassard and Rego arranged to meet at the Marriott Hotel, in Providence, Rhode Island, on January 26, 1996. After the exchange of cash for cocaine was made in a hotel bathroom, Brassard was arrested as he attempted to leave. A loaded handgun was found on him.

II.

Brassard, through his attorney and pro se, raises seven grounds for appeal.

1. Discovery

Brassard says that the district court erred when it conditioned further discovery of information as to promises, inducements, or rewards made to the informant Rego on the calling of the informant as a witness at trial. General information had been provided before trial. Brassard says that, if he had received the additional information before trial, he would not have had to call Rego as a witness, a witness who was clearly more favorable to the government. This amounts, he says, to a violation of Brady v. Maryland, 373 U.S. 83 (1963). The government says that it turned over all relevant information a month before trial, including the total amount paid to Rego from prior closed cases, and that the district court ordered more specific disclosures (the precise amounts paid to Rego in each case) in sufficient time for the defense to make use of them at trial.

We review for abuse of discretion, see United States v. Josleyn, 99 F.3d 1182, 1196 (1st Cir. 1996), and there was none. Production was ordered in adequate time for the information to be used effectively by the defense at trial. We reject the argument that the late production of more detailed evidence, if late it was, forced the defense to call the informant Rego as a witness, or that it caused prejudice. See Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999); Josleyn, 99 F.3d at 1196.

2. Government's Opening

Brassard says that the district court should have granted his motion for a mistrial after the government, in its opening argument, made one impermissible reference to inadmissible hearsay evidence. We review for abuse of discretion. See United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993). Brassard objected to the prosecutor's statement, "Now the Defendant asked the informant if he knew where the Defendant could purchase a large quantity of cocaine. As I already told you, unbeknownst to the Defendant, however, the informant had been employed by the Government on several prior occasions." The objection was based on the prosecution's assertion that it did not intend to call the informant Rego as a witness. The hearsay statement contradicted Brassard's version of who introduced the topic of drugs, and the question of who first introduced the topic of drugs was pertinent to the entrapment defense. In response to the objection, the trial prosecutor argued that the information could be introduced without calling Rego as a witness. The district court disagreed and sustained the objection. Brassard then turned down the court's offer of a curative instruction and, instead, moved for a mistrial. The judge denied the motion. The government now acknowledges that the prosecutor erred in making the statement, but says that the error was harmless.

The district court judge did not abuse his discretion. The offending remark was brief, the judge had told the jury that counsel's statement was not evidence, the judge offered a curative instruction, and it is likely that, coming when it did, the remark had no effect. As noted in United States v. Brandon, 17 F.3d 409, 446 (1st Cir. 1994), "[t]he level of prejudice, if any, was not sufficiently significant to overturn the judge's decision to accept the defendant['s] tactical choice to forgo more appropriate methods of addressing the potential prejudice in favor of the unrealistic and unnecessary solution of a dismissal or a new trial."

3. Tape Recordings

Brassard, pro se, says that the tape recordings and transcripts of conversations between him and the undercover agent were impermissibly admitted because no foundation was laid, because the first tape was incomplete, and because the tapes were not properly authenticated. We review for abuse of discretion. See United States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986). In his testimony, Detective Rocha, who made the recordings and transcripts, laid proper foundation and made proper authentication of the tapes and the transcripts, explaining how the first minute was irreparably damaged while he was making copies of the tapes. See United States v. Doyon, 194 F.3d 207, 212-13 (1st Cir. 1999). While the initial moments of one of the tapes were destroyed, that did not make that tape inadmissible. See id. Further, there was ample cross-examination of Detective Rocha on the substance of the conversation that took place during the missing portion of the tape to allow the jury to evaluate for itself the content and importance of that part as to both the prosecution's and the defense's cases....