U.S. v. Gotchis, 1438

• Decision Date: 14 October 1986
• Docket Number: D,No. 1438,1438
• Parties: UNITED STATES of America, Appellee, v. George GOTCHIS, Defendant-Appellant. ocket 86-1139.
• Court: U.S. Court of Appeals — Second Circuit

Page 74

803 F.2d 74

UNITED STATES of America, Appellee, v. George GOTCHIS, Defendant-Appellant.

No. 1438, Docket 86-1139.

United States Court of Appeals Second Circuit.

Argued July 15, 1986.

Decided Oct. 14, 1986.

Gary D. Weinberger, Asst. Federal Public Defender, District of Connecticut (Thomas G. Dennis, Federal Public Defender for the District of Connecticut, of counsel) for defendant-appellant.

Holly B. Fitzsimmons, Asst. U.S. Atty., District of Connecticut (Stanley A. Twardy, Jr., U.S. Atty., for the District of Connecticut, of counsel) for appellee.

Before WINTER and MAHONEY, Circuit Judges, and CABRANES, District Judge. ^*

MAHONEY, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the District of Connecticut, Blumenfeld, J., entered after a jury trial, convicting defendant George Gotchis of possession of cocaine with intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1) (1982). Judge Blumenfeld sentenced Gotchis to eighteen months in prison to be followed by a three-year special parole term. On appeal, Gotchis argues that the district court erred in refusing to strike suppression hearing testimony of a Drug Enforcement Administration agent who failed to produce his notes concerning information received from another DEA agent; that the court improperly admitted at trial certain "biographical" information obtained from the defendant after he had received Miranda warnings and indicated that he wished to remain silent; and that the prosecutor improperly shifted the burden of proof to the defense by comments in summation on the lack of evidence supporting the defense theory that the cocaine found on Gotchis was intended for "personal use." Because we reject each of these arguments, we affirm.

BACKGROUND

On August 17, 1985, George Gotchis was arrested at Bradley International Airport, near Hartford, Connecticut, with eight ounces of pure cocaine on his person. DEA Agent Louis Candell, who arrested Gotchis, had received from a second DEA agent, Art Cash from Miami, a description of a man who was believed to be bound for Bradley Airport on a flight from Fort Lauderdale, Florida and to be carrying cocaine in his pants. Cash's description was detailed: The man, named George, was said to have a large build, a potbelly, and light brown hair and to be wearing sunglasses Candell, two state troopers, and another DEA agent took Gotchis to a state police office at the airport, where they strip-searched him and discovered two packages of cocaine in his underwear. Candell then gave him the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Gotchis said that he did not wish to answer questions. However, when Candell later proceeded to ask Gotchis for certain information about his identity and background, including whether he was employed, Gotchis answered the questions and told Candell that he had been unemployed for eight years. He offered the explanation that he supported himself with gambling winnings. During his subsequent ride to jail, Gotchis asked an agent who the "rat" was. Candell testified that when the agent professed not to understand the question, Gotchis rejoined: "There must have been a 'rat,' or how would you have known?"

                blue slacks, cream-colored loafers, a light-colored pullover, which was not tucked into his slacks, and a large ring on his little finger.  Cash had received his tip in turn from an unidentified informant upon whom the DEA and Candell himself had previously relied.  At the airport, Candell spotted Gotchis, who had arrived on the designated flight and who precisely fit the description Cash had given him.  After observing Gotchis' behavior, which tended to confirm his suspicions that Gotchis was indeed the courier Cash had described, Candell stopped Gotchis and, with Gotchis' permission, asked him some questions.  Gotchis' responses, which were implausible and evasive, augmented the indicia of possible criminal activity. 1   Candell then placed Gotchis under arrest
                

Gotchis moved before trial to suppress the cocaine, which he claimed had been discovered as a result of an unlawful arrest, and to suppress his post-arrest statements, including the background data Candell had elicited, which Gotchis claimed had been procured in violation of his Miranda rights. Having learned at the suppression hearing that Candell had taken notes when Cash had described the suspected courier to him, Gotchis requested the notes and was granted a week's recess in order to give Candell an opportunity to find and produce them. Candell was unable to find the notes, which he claimed to have misplaced. Gotchis then filed a motion to suppress Candell's testimony, which was denied. Gotchis' motions to suppress the cocaine and the post-arrest statements were denied, as well.

At trial, the prosecution's case depended on proof of intent to distribute, Gotchis having conceded possession of the cocaine. Each side presented expert testimony tending to show the likelihood--or the improbability--that the amount and purity of the cocaine in Gotchis' possession would be found in the possession of someone who might have intended to consume the drug himself rather than to distribute it. In her summation, the prosecutor emphasized that apart from the testimony of one expert, who was unacquainted with Gotchis but who testified hypothetically that a heavy user might consume eight ounces of pure cocaine in a month, Gotchis had presented Gotchis argues on appeal that the district court erred in refusing to strike Candell's testimony at the suppression hearing after Candell failed to produce the notes he had taken during his conversation with Cash, and that both the arrest of Gotchis and the related seizure of cocaine were therefore invalid; that the district court erred in refusing to suppress the statements Gotchis had made in response to Candell's "biographical" questions, in violation of Gotchis' Miranda rights; and that in her closing statement the prosecutor violated Gotchis' due process rights by shifting the burden to him to show that he was innocent of any intent to distribute.

no evidence at all to show that he was a cocaine user; the prosecutor specified witnesses that Gotchis might have called, but did not call, to provide testimony as to his consumption of the drug. In addition, the prosecutor called attention to Gotchis' long-term unemployment to support the inference that Gotchis intended to sell the cocaine.

DISCUSSION

I

Because Candell's notes were unavailable to corroborate his testimony about what Cash had told him, Gotchis argues that the prosecution failed to pass the "totality of the circumstances" test to show probable cause to arrest him under Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Cash's description of the suspected courier, which focused Candell's attention on Gotchis, was of course the single most important of the "circumstances" contributing to the "totality" justifying Gotchis' arrest. Gotchis does not contend that the tip was by its nature unreliable or that, in combination with the other circumstances attending Gotchis' arrest, it did not give rise to probable cause. He argues instead that since Candell took notes when Cash passed along the description of the suspect, Candell's testimony about the tip was incompetent without the notes. He relies for this argument on Rule 26.2(a), Fed.R.Crim.P. (incorporating the substance of the Jencks Act, 18 U.S.C. Sec. 3500, into the Federal Rules), which authorizes a party to compel production of any "statement" made by a witness other than the defendant if the statement is in the witness's possession and concerns subject matter about which the witness has testified. The Rules define "statement" as, inter alia, "a written statement made by the witness that is signed or otherwise adopted or approved by him," Rule 26.2(f)(1), Fed.R.Crim.P., and it is under this definition that the defendant presents Candell's notes as candidates for compulsory production. In the event that a party elects not to produce such a statement, "the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the government who elects not to comply, shall declare a mistrial if required by the interest of justice." Rule 26.2(e), Fed.R.Crim.P. Candell's notes were of course not in his possession; however, the rule requires the government to preserve statements as well as to produce them. United States v. Sanchez, 635 F.2d 47, 65 (2d Cir.1980); United States v. Bufalino, 576 F.2d 446, 449 (2d Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978).

Thus, our disposition of this issue depends upon whether Candell's rough notes recording Cash's tip constituted a "statement" under the definition set forth in the rule. We hold that they did not. Rule 26.2(f)(1), it seems to us, contemplates writings that the witness has in some manner vouched for. Candell, who apparently just wrote down what Cash told him, did not sign, approve, or adopt the notes. He was in no position when he took the notes to vouch for the accuracy of Cash's tip. Although he later acted on the information Cash had given him, nursing the belief or hope, no doubt, that the information was accurate, he did not thereby "adopt" Cash's description of the suspect in any way we think the rule embraces. Insofar as Gotchis would seek to show by means of the notes that Candell's recollections of Cash's description at the time of the suppression hearing deviated from the description as Candell originally transcribed it, his argument fails for similar reasons. Candell in no way indicated an intent to be held accountable for the content of his rough notes. We think such an indication is necessarily implied by the terms "signed or ... adopted or approved." The terms are otherwise surplusage, and any...