U.S. v. Femia, s. 93-1276

Citation9 F.3d 990
Decision Date08 September 1993
Docket NumberNos. 93-1276,93-1576,s. 93-1276
PartiesUNITED STATES of America, Appellant, v. Noel FEMIA, Defendant, Appellee. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Paula J. De Giacomo, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., and Heidi E. Brieger, Asst. U.S. Atty., 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 defendant, appellee.

Before TORRUELLA and STAHL, Circuit Judges, and DiCLERICO, Jr., * District Judge.

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. Sec. 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

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 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. Secs. 846, 841(a)(1), and 18 U.S.C. Sec. 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.

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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 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 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 suppress. This appeal followed.

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, 83 S.Ct. at 1196. 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, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (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, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984) and Arizona v. Youngblood, 488 U.S. 51, 55, 109 S.Ct. 333, 336, 102 L.Ed.2d 281 (1988) (each quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (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, 104 S.Ct. at 2533. As the Court stated in Trombetta, "[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, 104 S.Ct. at 2532-33.

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...

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