U.S. v. Flores-Mireles, FLORES-MIRELE

• Citation: 112 F.3d 337
• Decision Date: 24 April 1997
• Docket Number: A,FLORES-MIRELE,No. 96-2053,96-2053
• Parties: UNITED STATES of America, Appellee, v. Juan Franciscoppellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 337

112 F.3d 337

UNITED STATES of America, Appellee, v. Juan Francisco FLORES-MIRELES, Appellant.

No. 96-2053.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 25, 1996.

Decided April 24, 1997.

Thomas G. Dunnwald, Minneapolis, MN, argued for appellant.

Richard A. Newberry, Asst. U.S. Atty., Minneapolis, MN, argued for appellee.

Before WOLLMAN, ROSS and MURPHY, Circuit Judges.

ROSS, Circuit Judge.

Appellant Juan Francisco Flores-Mireles appeals from his conviction by a jury of two counts of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and being an illegal alien in possession of a firearm, 18 U.S.C. § 922(g)(5). Following his conviction, appellant was sentenced to a term of 63 months imprisonment. On appeal he argues that he was denied his constitutional right to due process and a fair trial because of various errors made by the prosecution including Brady violations and prosecutorial misconduct. We affirm the conviction by the district court. ¹

I.

In September 1994, Officer Bruce Fleury of the Clay County, Minnesota Sheriff's Department, assigned to the DEA task force, received information that appellant was distributing substantial quantities of cocaine in the Fargo/Moorhead area. Officer Fleury conducted further investigation which included four controlled buys of cocaine from appellant by a DEA informant named Gerardo Garza. Garza carried a wireless transmitter and recorded all four buys. After the controlled buys, Officer Fleury obtained search warrants for appellant's trailer home and vehicles, as well as the home of Martin Perez, an uncle of the informant and a cooperating government witness. Then, based in part on information received from Perez, Officer Fleury obtained a search warrant for the appellant's farmhouse.

Appellant was arrested on November 1, 1994, by the Moorhead Police Department following execution of the search warrants. As a result of the search, officers recovered 27.9 grams of cocaine from appellant's vehicle parked outside his trailer home and 700.7 grams of cocaine from appellant's farmhouse. Officers also recovered an electronic scale, drug paraphernalia, packaging material, drug notes, more than $5,000 cash and a firearm. Evidence at trial showed that appellant rented the trailer home in Moorhead, Minnesota, and, using the name Ramon Santellanes, rented the farmhouse in Felton, Minnesota, where the 700 grams of cocaine was recovered.

II.

Appellant cites a litany of alleged discovery violations on the part of the government which he contends violated the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and collectively served to reduce the effectiveness of defense counsel to try the case and undermined the confidence in the outcome by the jury. Appellant presents many of these alleged discovery violations without any supporting argument and consequently they amount to nothing more than "cursory and summary assertion[s]." United States v. Gonzales, 90 F.3d 1363, 1369 (8th Cir.1996). We consider only those contentions with sufficient supporting argument to allow us to review them on appeal. See id. at 1369-70.

In order to prove a Brady violation, the "defendant must show that the prosecution suppressed the evidence, the evidence was favorable to the accused, and the evidence was material to the issue of guilt or punishment." United States v. Duke, 50 F.3d 571, 577 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 224, 133 L.Ed.2d 154 (1995). Evidence is material under Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. "Reasonable probability" is defined as a "probability sufficient to undermine confidence in the outcome." Id. There is no duty to disclose evidence that is 1) neutral, speculative or inculpatory, 2) available to the defense from other sources, 3) not in the possession of the prosecutor, or 4) over which the prosecutor has no actual or constructive control.

Appellant first argues that a Brady violation occurred when the government denied informant Garza's material role in the case and ignored discovery requests to make Garza known and available prior to trial. The government explains it failed to produce evidence of the informant because no decision was made to use the evidence of the controlled buys through the testimony of Garza until May 12, 1995, just three days prior to trial. Although we in no way condone the government's delay in releasing evidence with regard to the informant, we do not agree with appellant that this delay amounted to a violation under Brady. The informant testified about his participation in the controlled buys from appellant and offered no exculpatory evidence. Because no evidence associated with the informant was favorable to the appellant, the Brady analysis simply does not apply.

Appellant also argues a Brady violation occurred when the government failed to release the tape recordings of the controlled buys, which were discoverable under Rule 16(a)(1) of the Federal Rules of Criminal Procedure as a "recorded statement[ ] made by the defendant." On May 15, 1995, the first day of trial, the district court ordered the tapes to be released to the defense and further ordered the government to have the tapes transcribed and translated by the end of the following day. After the second day of trial, the court recessed the trial testimony for six days at the request of defense counsel in order to complete transcription of the tapes. The district court rejected appellant's request that the court exclude the tapes as a sanction against the government, and instead chose to allow a continuance to the defense in order to review the tapes.

Once again the appellant incorrectly characterizes the government's delayed disclosure of the tape recordings as a Brady violation as this evidence was not favorable to the appellant. In fact, to the contrary, the tapes were highly incriminating and probative of appellant's guilt. The district court has broad discretion in fashioning sanctions for violations of Rule 16, and that decision will be overturned only upon a finding of an abuse of discretion. United States v. Manthei, 979 F.2d 124, 126 (8th Cir.1992). Here, the district court ordered the immediate release of the tapes once it became evident the government intended to call Garza as a witness. Further, the court granted an extended continuance in order to provide time for the tapes to be transcribed and the defense an opportunity to review the transcript. Although delayed, the defense had an opportunity to examine the transcripts of the tapes and to use them during trial.

Appellant also argues that a Brady violation occurred when the government failed to disclose that it had obtained a latent fingerprint that had been unidentified and unexamined. During direct examination, a DEA chemist revealed that the missing print card had been found in the DEA lab file. At this time the government had the print examined. Again, following some delay, the government made the test results available to the defense for use during trial. The results were neither inculpatory nor exculpatory, as they simply showed the print belonged to neither ...