U.S. v. Duval

• Decision Date: 07 August 2007
• Docket Number: No. 05-2163.,No. 06-1317.,05-2163.,06-1317.
• Citation: 496 F.3d 64
• Parties: UNITED STATES of America, Appellee, v. Timothy J. DUVAL and Michael R. Doucette, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

496 F.3d 64

UNITED STATES of America, Appellee, v. Timothy J. DUVAL and Michael R. Doucette, Defendants, Appellants.

No. 05-2163.

No. 06-1317.

United States Court of Appeals, First Circuit.

Heard May 9, 2007.

Decided August 7, 2007.

Miriam Conrad, Federal Defender Office, was on brief, for appellant Doucette.

John J. Barter, was on brief, for appellant Duval.

Claire J. Evans, Criminal Appellate Section, U.S. Department of Justice, with whom Michael J. Sullivan, United States Attorney, and John A. Capin, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, SELYA and CYR, Senior Circuit Judges.

TORRUELLA, Circuit Judge.

Timothy J. Duval and Michael R. Doucette were each convicted of one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Duval and Doucette now appeal their convictions and sentences. After careful consideration, we affirm.

I. Background

On January 27, 2003, Heath Woodward, then a resident of Sanford, Maine, reported that his 1996 maroon Buick was stolen from a convenience store parking lot. Woodward later testified that he did not have any weapons in the car at that time.

In late January, Duval, Doucette, and Carlos Ramos (an acquaintance of Duval and Doucette) spent a few nights at an apartment rented by Robert Dyott. Dyott was an associate of Ramos and unbeknownst to his guests, an informant for the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). Dyott would later testify that while staying at his apartment, Doucette said that he and Duval had stolen a car from a convenience store and that they had some weapons in the trunk of that car that they wanted to "move" (i.e., sell). Dyott also testified that Duval and Ramos were in the room when Doucette said this, and that Duval did not disavow Doucette's statement. According to Dyott, Doucette also said that he and Duval were going to stay at a hotel the following night.

On January 31, 2003, a guest identifying himself as "Carlos Ramos" registered at the Chelmsford Best Western for himself and a guest named "Paul Santos." They were assigned room 102. In filling out the registration form, "Ramos" identified his car as a "96 maroon Buick." That same night, a call was placed from Room 102 to a cell phone provided to Dyott by the ATF.

On February 1, 2003, Dyott spoke with Daniel Meade, an ATF Agent, and told him that there was a stolen car with weapons at the Chelmsford Best Western. The ATF notified the Chelmsford police department, which sent Officers Tyros and Tine, joined by Agent Meade, to the Best Western to investigate the suspected stolen vehicle. Officer Tyros watched as a Caucasian male, later identified as Duval walked toward a maroon Buick carrying a black object, and paused briefly by the trunk of the car. Tyros testified that Duval noticed his presence and walked back to room 102.

Later that day, Agent Meade encountered Duval and Doucette as they walked towards a gas station near the motel and asked them to identify themselves. Upon learning their identities, Agent Meade arrested Duval and Doucette on outstanding warrants. Meade found the keys to the stolen Buick in Doucette's front pocket. A search of the car revealed a Remington rifle, a Remington shotgun, a Marlin rifle, and ammunition inside the trunk. Investigators found no fingerprints in the trunk, on the firearms, or the ammunition. However, Duval's and Doucette's prints were recovered from objects found in the passenger compartment.

On June 19, 2003, a complaint was filed with the United States District Court for the District of Massachusetts charging Duval and Doucette each with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The Government filed an indictment against Duval and Doucette on September 3, 2003. Both Duval and Doucette pleaded not guilty.

In an attempt to comply with Local Rule 116.1(c)(1) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Government initially disclosed to Duval and Doucette in October 2003 that it would call Dyott to testify at trial, and that Dyott was a Government informant. The Government stated that Dyott had not been paid for his cooperation and that there was no evidence that would otherwise cast doubt on his credibility. But two months later, the Government informed Duval and Doucette that Dyott had been paid $5,150 for his cooperation since 1998. Then, in February 2004, the Government sent a letter to Duval and Doucette stating that in 1998, it had dropped firearms charges against Dyott in exchange for his cooperation. Eight months after that, the Government added that it had discovered that Dyott had been paid an additional $600 in 1998 and 1999, and that Dyott had a long history of mental illness.

On January 10, 2005, the Government moved to supplement its witness list to include Carlos Ramos, the acquaintance of Duval and Doucette who had allegedly rented the motel room for them. The Government disclosed in a letter to Duval and Doucette that Ramos had a history of drug abuse, and had once cooperated with the Government by making a "controlled buy." The following week, on January 19, the Government sent a second letter to Duval and Doucette stating that Ramos had told the Government that he did not see any guns or hear either defendant make any reference to guns, and that Ramos had told Agent Meade in 2003 that he had no knowledge of a stolen car. Other than this disclosure, the Government indicated that it had no additional exculpatory information regarding Ramos.

Two days later, on January 21, 2005, the Government sent another letter to Duval and Doucette. This time, the letter stated that the Government did have exculpatory information regarding Ramos, specifically that Ramos was offered leniency for his participation in the firearms transaction in exchange for becoming an informant. The letter also stated that Agent Meade had interviewed Ramos in February 2003, but that Meade had not made any notes of the interview. The letter stated that Meade had asked Ramos about his renting a hotel room for Duval and Doucette, but that he did not recall if he asked Ramos whether he was in the room with Dyott, Duval, and Doucette in late January when Doucette was alleged to have offered to sell Dyott weapons. The Government continued to assert that Ramos had not been paid for his cooperation on the Duval and Doucette case. On January 31, 2005, the Government sent yet another letter to Duval and Doucette, amending its prior disclosure to add that Ramos had in fact attempted to make at least three or four controlled purchases for the ATF, and that Meade had given him money to buy telephone calling cards. On the sixth day of the trial — February 14, 2005 — the Government disclosed to Duval and Doucette, seemingly contrary to prior claims that Ramos had not been paid in connection with the present case, that an entry on the ATF payment roster indicated that Ramos had been paid $50 for "informant subsistence." The entry included a reference to "Ducette [sic] & Duval."

Duval and Doucette moved to dismiss the indictment because of a pattern of Government non-compliance with its disclosure obligations. The Government opposed the dismissal of the indictment, contending that neither Duval nor Doucette had suffered prejudice as a result of the belated disclosures. The court denied the motion to dismiss, stating that the Government had violated its Brady obligations, but that neither Duval nor Doucette were prejudiced.

Duval and Doucette also requested that the Government provide the records of each individual payment to Dyott and Ramos so they could determine if the Government had failed to disclose any other payments to the witnesses. Instead, the Government provided Duval and Doucette a summary of the payments made to Dyott. Duval and Doucette claimed that the summary was insufficient given the history of belated disclosures by the Government, and asked the court to compel production of the payment records, or in the alternative, to review the records in camera, in order to determine whether any additional payments had been made to Dyott or Ramos. The court denied the request.¹

In addition, Duval moved to exclude as inadmissible hearsay Dyott's testimony that Doucette had offered firearms for sale. The court denied Duval's motion to exclude without prejudice, ruling that he could raise it again at trial if the Government failed to show that Doucette's statement was either a statement in furtherance of a conspiracy or an adoptive admission by Duval.

The jury trial of Duval and Doucette began on February 7, 2005, and lasted eight days. At trial, Dyott testified that he had met with Duval, Doucette, and Ramos in late January, that Doucette had told him that he had firearms to sell, and that Duval said nothing when he heard this. Dyott also disclosed on direct examination his past and present drug habits, mental illness, and criminal history. Duval and Doucette cross-examined Dyott as to his cooperation with the ATF and payments that he received. In addition, both Ramos and Agent Meade testified, along with various other witnesses.

During closing arguments, the Government noted that Duval had been within fifteen miles of the location where the Buick was stolen, that the Buick did not have firearms or ammunition in it when it was stolen, that the Buick was later found at the hotel where Duval and Doucette were staying, that Duval had suspiciously approached the vehicle but turned away when he saw the police, that Doucette had the keys to the vehicle, and that the trunk contained firearms and ammunition. The Government then stated, "[Y]ou can stop right there ... because that evidence proves beyond a reasonable doubt that [Duval and Doucette] were in knowing possession [of the firearms and ammunition]. But there's more." The Government then noted that Dyott had testified that...