960 F.2d 158 (D.C. Cir. 1992), 90-3165, U.S. v. Caicedo-Llanos

Docket Nº:90-3165.
Citation:960 F.2d 158
Party Name:UNITED STATES of America v. Orlando CAICEDO-LLANOS, Appellant.
Case Date:March 31, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 158

960 F.2d 158 (D.C. Cir. 1992)



Orlando CAICEDO-LLANOS, Appellant.

No. 90-3165.

United States Court of Appeals, District of Columbia Circuit.

March 31, 1992

Rehearing Denied May 8, 1992.

Argued Oct. 3, 1991.

Thomas G. Corcoran, Jr., Washington, D.C. (appointed by the Court) for appellant.

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Kathleen O'Connor, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Roy W. McLeese, III, Asst. U.S. Attys., were on the brief, for appellee.

Before MIKVA, Chief Judge; SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Orlando Caicedo-Llanos appeals his conviction for possession of over 500 grams of cocaine with intent to distribute. He argues that the government's failure to preserve and produce certain photographic evidence violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and his discovery rights under Rule 16 of the Federal Rules of Criminal Procedure. For reasons detailed below, we reject both arguments and affirm.


    1. Facts

      Consistent with the findings of the District Court, the facts of this case are as follows. The New York City Police Department (NYPD) telephoned Detective Dade of the Metropolitan Police Department's Fugitive Squad on January 16, 1990, seeking assistance in apprehending two suspects wanted in connection with a double shooting. 1 The NYPD informed Detective Dade that both suspects were male, black, and Panamanian. It also informed him that the two were travelling together on a bus scheduled to arrive in Washington, D.C., later that day. The NYPD provided Dade with the arrival time, the gate, and the number of the bus. It also offered him the name and a description of one suspect, and the name and illegal alien status of the other. In addition to the information provided by telephone, the NYPD faxed Dade a photograph of one suspect. Based on the telephoned and faxed information, officers of the Metropolitan Police Department obtained the assistance of Immigration and Naturalization Service (INS) Special Agent Crispino, and arrived at the bus station ahead of the bus described by the NYPD.

      As Dade and Sergeant Getz, also of the Metropolitan Police Department, watched passengers disembark from the bus, they noticed a man who, in their opinion, matched the description of the subject mentioned in the telephone call and pictured in the faxed photograph. This individual was later identified as Mr. Palamino-Perez (the "codefendant"). Sergeant Getz approached and asked the codefendant questions, but could not communicate with him: Palamino-Perez speaks only Spanish. At this point, INS Agent Crispino approached, showed his badge, and, speaking in Spanish, asked Palamino-Perez his name, place of birth, and whether he had any identification or immigration papers with him. Palamino-Perez responded that he was born in Colombia, lived presently in New York, and had no form of identification or immigration papers. Palamino-Perez was arrested for violating immigration laws and then searched. Getz found two kilo bricks of cocaine in a girdle strapped to the codefendant's body.

      Simultaneous with the questioning of Palamino-Perez, Officer Fant, another Metropolitan Police officer, boarded the bus and noticed another individual he thought fit the description of the wanted suspects. This individual, Mr. Caicedo-Llanos (the "appellant") was apparently fumbling with something under his seat. A woman on the bus told Fant that Caicedo-Llanos "put it under his seat." Fant then apparently got off the bus to speak with the bus driver; the driver told him that the codefendant and appellant had travelled together. At this point, Fant also learned of the

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      codefendant's arrest and of the cocaine recovered from his girdle. Gun drawn, Fant reboarded the bus, conducted a pat-down of Caicedo-Llanos, and led him off the bus. Crispino then questioned appellant about his immigration status and learned that he too was born in Colombia and had no immigration papers. Crispino arrested Caicedo-Llanos for violating immigration laws and then conducted a search. Crispino found two kilos of cocaine strapped to Caicedo-Llanos' body. Police also recovered the package under Caicedo-Llanos' bus seat at this time and found it filled with cocaine. The apparent street value of the drugs recovered from appellant and codefendant was $806,040.

      Following the arrests, all copies of the photograph faxed from the NYPD were lost or discarded. Dade testified at a suppression hearing that he could not recall who at the NYPD sent the fax to him, or in which New York office the sender worked. A copy of the fax sat on Dade's desk for several months, but he discarded it one week before the prosecutor contacted him about the case. Dade is a twenty-year veteran of the Metropolitan Police. 2

      At trial, varying descriptions of the faxed photograph were elicited from the various officers involved in appellant's arrest. Officers disagreed as to whether the picture depicted one or two men, and whether the man (or men) depicted wore facial hair or a long haircut. Defense produced the bus driver, Mr. Walter Clay, who testified that police had shown him the faxed photograph and that he told them he had seen no resemblance between the picture and either the appellant or codefendant. Clay did, however, acknowledge that Palamino-Perez and Caicedo-Llanos had boarded the bus and travelled together.

      The government conceded at trial that appellant is not one of the New York shooting suspects. Defense counsel apparently acknowledged that appellant is an illegal alien, that he is a black Hispanic male, and that he was travelling with Palamino-Perez.

    2. Hearing Before the District Court

      1. Appellant's Position

        Appellant and codefendant argued in the District Court that, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the government violated their due process rights by failing to preserve and produce the faxed photograph. As is familiar learning, Brady established the principle that a defendant has a due process right to request and receive evidence in the government's possession that is material to his guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 86-88, 83 S.Ct. at 1196-1198.

        Appellant and codefendant argued that the proper remedy for the photograph's loss was suppression of all evidence recovered in both arrests. Such a suppression, they continued, would of course necessitate a dismissal of the charges against them.

      2. The District Court's Ruling

        The District Court ruled that the due process issue in this case should not be analyzed under Brady, but under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In Youngblood, the Supreme Court held that when considering evidence lost by the government, "of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant," a defendant must show that the government acted in bad faith in order to demonstrate a due process violation. Id. at 57-58, 109 S.Ct. at 337-338.

        Applying Youngblood, the trial court concluded that the police had not acted in bad faith. It also noted that the photographic evidence was immaterial to appellant's defense because the police could have properly arrested and searched appellant, even if the photograph had been available and looked nothing like codefendant: first, Officer Fant had probable cause to arrest appellant based on his belief that Caicedo-Llanos was one of the two fugitives travelling together and his knowledge

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        that drugs had been recovered from the codefendant; second, Fant had sufficient articulable suspicion to stop appellant to investigate whether he was one of the two fugitives and, after appellant was taken off the bus, the INS Agent had probable cause to arrest him for immigration violations.

        Appellant now contends on appeal that the District Court erred in applying Youngblood rather than Brady and that, under either standard, a due process violation occurred which requires the suppression of all seized evidence. He also alleges that the government violated his discovery rights under Fed.R.Crim.P. 16.


    1. Due Process Concerns

      1. Appellant's Argument

        Appellant contends that the District Court erred in applying Youngblood rather than Brady to the facts of this case. Youngblood is inapplicable, he argues, because the faxed photograph is not evidence "of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Id. at 57, 109 S.Ct. at 337. While the untested semen samples in Youngblood clearly required scientific analysis to prove their usefulness, the value of a photograph, Caicedo-Llanos claims, is self-evident. We note that the consequences of applying a Youngblood rather than a Brady analysis can be quite serious: under Youngblood defendant bears the burden of showing that the police acted in bad faith in destroying the evidence; under Brady he does not.

      2. The Materiality Requirement and the Personal Nature of the Fourth Amendment Guarantee

        While the question of which due process standard should apply to the facts before us raises interesting constitutional issues, it is one we need not resolve today. Under either Youngblood or Brady, appellant is obliged to demonstrate that the evidence he seeks is in some fashion material to his defense. See Brady, 373 U.S. at 87, 83 S.Ct. at 1197 (to implicate due process, evidence must be "material to either guilt or punishment"); United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (Brady 's materiality requirement forces defendant to show that there "is a reasonable probability that,...

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