707 F.2d 1294 (11th Cir. 1983), 82-8398, United States v. Nabors

Docket Nº:82-8398.
Citation:707 F.2d 1294
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dewey T. NABORS, Jr., Defendant-Appellant.
Case Date:June 23, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1294

707 F.2d 1294 (11th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,


Dewey T. NABORS, Jr., Defendant-Appellant.

No. 82-8398.

United States Court of Appeals, Eleventh Circuit

June 23, 1983

Page 1295

Bobby Lee Cook, Summerville, Ga., Charles T. Erion, Macon, Ga., for defendant-appellant.

William P. Adams, Asst. U.S. Atty., Macon, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY and HILL, Circuit Judges, and MORGAN, Senior Circuit Judge.

RONEY, Circuit Judge:

Dewey T. Nabors, Jr. was convicted of conspiracy, possession and importation of marijuana and methaqualone. 21 U.S.C.A. Secs. 841(a)(1), 846, 952(a), 963; 18 U.S.C.A. Sec. 2. On appeal, he asserts four errors by the district court: (1) admission of laboratory analyses of the contraband which had been destroyed before Nabors had an opportunity to examine it, (2) admission of evidence that Nabors, as a named insured of the airplane involved in the drug smuggling, failed to file an insurance claim on the airplane or otherwise cooperate with the insurance company, even though the aircraft sustained extreme damage in the drug operation, (3) admission of evidence showing Nabors' involvement in similar illegal activity four years earlier, and (4) denial of Nabors' motion to compel the government to affirm or deny the monitoring of international phone conversations in which Nabors discussed drug smuggling. We affirm.

A brief account of the factual background to this case is helpful before going into more detail on the facts and arguments specific to each issue. On April 13, 1980 Michael Warner landed an airplane, leased by Nabors, in middle Georgia near the town of Unadilla. Warner, flying alone, chose

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the particular landing site, a crop-dusting strip, because bad weather prevented him from landing at his intended destination. Warner immediately set the plane on fire, inadvertently causing local law enforcement officers to arrive at the scene. The officers were able to save some of the airplane's contents, which they suspected to be marijuana and methaqualone. They arrested Warner, who was convicted in state court of drug charges.

Warner was the key government witness at Nabors' subsequent trial in federal court. He testified that Nabors had hired him to fly to Colombia, pick up marijuana and methaqualone from Nabors, and bring it back to Georgia. Nabors did not take the stand in his own defense, electing simply to attack Warner's credibility and other aspects of the government's case.

  1. Destruction of the Evidence

    Two months before Nabors' trial, the Georgia Bureau of Investigation (G.B.I.) destroyed the alleged contraband taken from the burning plane. As a result, federal authorities could not comply with Nabors' motion to inspect and test the prosecution's evidence. Nabors argues the government's actions deprived him of due process, requiring the exclusion at trial of the laboratory analyses of the seized material and the dismissal of at least the substantive counts of the indictment.

    Clearly a defendant in a drug prosecution has a due process right to have an expert of his choosing perform an independent analysis on the seized substance. See United States v. Gaultney, 606 F.2d 540, 545 (5th Cir.1979), modified on other grounds, 615 F.2d 642 (5th Cir.1980), rev'd on other grounds sub. nom, Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); cf. Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir.1975) (criminal defendant has right to examine, through his own expert, critical evidence subject to varying expert opinion). The government has a concomitant responsibility to try in good faith to preserve important material and to locate it once the defendant moves for discovery. Armstrong v. Collier, 536 F.2d 72, 78 (5th Cir.1976); United States v. Bryant, 439 F.2d 642, 651 (D.C.Cir.1971). The government does not dispute its responsibility under the law.

    The issue here is whether the mistaken destruction of the material, so that the defendant cannot examine it, requires the exclusion of testimony as to the nature of the material by the government witness who tested it. The first question is whether Nabors is entitled to exclusion under a per se rule since the identification of the material as marijuana and methaqualone was central to the prosecution, at least for the substantive offenses. We think not. Two cases are helpful in this conclusion. The recent Supreme Court decision in United States v. Valenzuela-Bernal, 458 U.S. ----, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), involved the government's deportation of potential witnesses, thus putting them beyond the subpoena reach of the defendant. The Court, in a thorough discussion of related cases involving the deprivation of evidence to the defendant, held there to be no due process violation unless the defendant made some plausible showing that the evidence would have been material and favorable to his defense. Id. at ----, 102 S.Ct. at 3448, 73 L.Ed.2d at 1205-06. The seminal case in our Circuit involved the government's refusal to allow the defendant to inspect the alleged murder weapon and a 75% destroyed bullet which killed the victim. Government ballistics experts testified that the bullet came from defendant's gun. The Court reversed the defendant's conviction, reasoning the bullet was "a piece of critical evidence whose nature is subject to varying expert opinions." Barnard v. Henderson, 514 F.2d at 746.

    There is no evidence in this case to suggest that experts would have disagreed as to the identification of the seized material. Nor in the experience of this Court in cases of this kind, unlike bullet cases, have we found varying opinions among experts as to the identification of these two substances.

    Rather than a per se rule of exclusion, the test in this Circuit focuses on "the

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    materiality of the evidence, the likelihood of mistaken interpretation of it by government witnesses or the jury, and the reasons for its nonavailability to the defense." United States v. Herndon, 536 F.2d 1027, 1029 (5th Cir.1976). Other circuits have also looked to the government's culpability and the prejudice to the defendant. See United States v. Picariello, 568 F.2d 222, 227 (1st Cir.1978); cf. United States v. Loud Hawk, 628 F.2d 1139, 1152-53 (9th Cir.1979) (en banc) (majority opinion on issue by J. Kennedy) (looking to these factors but indicating the issue is generally not one of constitutional dimensions), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980), --- U.S. ----, 103 S.Ct. 755, 75 L.Ed.2d ---- (1983). Without discounting the right of defendants to examine the material they are charged with possessing, we hold that where the material has been destroyed in spite of the government's good faith attempt to preserve it, testimony as to the nature of the material need not be suppressed absent some showing that the testing of the material by another expert would have been reasonably likely to produce evidence favorable to the defendant.

    Nabors admits there is no indication that the government acted with improper motive when it destroyed the alleged contraband. See United States v. Herndon, 536 F.2d at 1029. The destruction appears to have been a mistake, which occurred despite the efforts of federal and local law enforcement officials to have the evidence preserved. Briefly, after Michael Warner's trial in state court, the local sheriff's office returned the seized material to the Georgia Bureau of Investigation laboratory with instructions that it should be preserved. Prior to Nabors' indictment, an Assistant United States Attorney spoke by telephone to the G.B.I. agent in charge of the case, requesting that G.B.I. preserve the evidence for use in a federal prosecution. Unfortunately, a communication breakdown resulted in the destruction of the evidence by the director of the G.B.I. laboratory. Thus, while in retrospect the government perhaps should have done more to ensure the preservation of the evidence, it clearly did not act "for the purpose of inflicting a disadvantage upon the defendant[ ]," United States v. Gordon, 580 F.2d 827, 837 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978), 439 U.S. 1079, 99 S.Ct. 860, 59 L.Ed.2d 49 (1979), or as part of a policy of "systematic non-preservation" of evidence, United States v. Bryant, 439 F.2d at 652. The government agents knew the law and acted accordingly. Thus exclusion is not necessary to sanction or instruct the government for a violation of law, as is the rationale for some exclusionary rules.

    There is virtually no likelihood that the absence of the alleged contraband affected the verdict in a manner prejudicial to Nabors. United States v. Gordon, 580 F.2d at 837. The government, through various witnesses, explained the absence of the evidence to the jury. It presented overwhelming evidence showing the substances were indeed marijuana and methaqualone. The G.B.I. laboratory director testified that he tested the substances and found them to be the two drugs in question. The prosecution presented photographs of the seized material. The local law enforcement agent who removed the material from the burning plane testified that he smelled marijuana. The pilot, Michael Warner, testified the cargo he picked up from Nabors in Colombia consisted of marijuana and methaqualone. According to Warner, Nabors had agreed to pay him $50,000 to transport 900 pounds of marijuana. Nabors had a full opportunity to cross-examine these witnesses. It seems clear that the absence of the material did not deprive Nabors of any useful evidence. He presented no evidence suggesting the material was anything other than the contraband charged. In short,...

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