U.S. v. Perkins, s. 89-1726

• Decision Date: 07 September 1990
• Docket Number: Nos. 89-1726,89-1729,s. 89-1726
• Citation: 926 F.2d 1271
• Parties: UNITED STATES of America, Appellee, v. Patrick PERKINS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Lois PERKINS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1271

926 F.2d 1271

UNITED STATES of America, Appellee, v. Patrick PERKINS, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Lois PERKINS, Defendant, Appellant.

Nos. 89-1726, 89-1729.

United States Court of Appeals First Circuit.

Heard Sept. 7, 1990.

Decided March 5, 1991.

As Amended on Denial of Rehearing March 19, 1991.

Wendy Sibbison, Greenfield, Mass., by Appointment of the Court, for appellant Patrick Perkins.

John T. Burns, Boston, Mass., by Appointment of the Court, for appellant Lois Perkins.

R.J. Cinquegrana, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for the U.S.

Before CAMPBELL and TORRUELLA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Patrick and Lois Perkins (husband and wife) appeal from their March 15, 1989 convictions, after a jury trial, for conspiracy and for possession with intent to distribute one kilogram of cocaine. The district court sentenced each of them to a mandatory minimum five year term, pursuant to 21 U.S.C. Sec. 841. Patrick and Lois make various claims of error which we consider and ultimately reject.

FACTS

The indictment charged that Patrick Perkins and his wife, Lois Perkins, conspired to sell a kilogram of cocaine to Drug Enforcement Administration (DEA) undercover agent Robert Allen on July 18, 1987. Both Patrick and Lois were tried together, and the following was brought out at their trial.

1. On June 30, 1987, under the direction of DEA special agent Robert Allen, a DEA informant named James Short met with Patrick Perkins in a bar in Boston. They discussed the sale of cocaine and marijuana. Short had known Patrick and his wife, Lois, in Florida since 1986.

2. On July 16, 1987, also in Boston, Short introduced Patrick Perkins to agent Allen, who was posing as an interested drug buyer. Allen and Perkins discussed possible cocaine transactions, ultimately agreeing that Allen would fly to Florida, where Patrick and Lois Perkins resided, to purchase cocaine from Patrick. The price would be $22,000. That day Patrick returned to Florida.

3. On July 17, 1987, Allen and Short flew to Florida. On the same day, Allen and Patrick met in Fort Lauderdale, Florida, at a bar across from the Perkinses' apartment. Perkins told Allen that he had not yet arranged for the delivery of the kilo of cocaine to his apartment, and that Allen would have to come the next day, July 18, to obtain it.

4. On July 18, 1987, Allen and Short went to the Perkinses' apartment. Allen expected Patrick to be there to complete the transaction but instead, as they were approaching the apartment building, they saw Lois Perkins entering with a third person, who disappeared upstairs while Lois greeted Allen and Short at the first floor entry to the building. Lois told Allen "the guy" had arrived and was upstairs. Allen and Short then entered the Perkinses' second floor apartment with Lois. Allen asked, "Is the package here?" Lois replied, "Yes, it is ... The guy has it in the other room ... He does not want to be seen by you." She asked Allen if he had the money and Allen replied, "Yes, I do." He told her it was down in the car, and went to get it from the car. While Allen was outside, Lois asked Short to step out into the hallway for a moment and closed the door behind her. When they went back in, a package (later shown to contain about a kilo of cocaine) was on the kitchen table. Using a knife lent by Lois, Short opened the package, intending to test the cocaine. When Allen returned with a bag containing $22,000, he saw Short cutting into the cocaine. Lois told Allen that Short was testing the package. Short spilled some cocaine on the floor. Lois cleaned it up and became upset, saying, "this is the last time that a deal was going to be done in the apartment." Allen told her, "I'm sorry that Patty put you in this position where you had to handle the package." Allen gave Lois $22,000 in a stack of $100 bills, which was in the paper bag he had brought. Lois Perkins took the bag and looked into it. The stack of bills was about three inches tall and not wrapped in anything. Allen asked "Where's Patty?", and Lois replied, "Up in Boston."

5. After both left the apartment, agent Allen directed informant Short, wearing a recording device, to return to the Perkinses' apartment. A recorded ten minute conversation between Short and Lois ensued in which, among other things, they talked, insofar as could be determined from the barely audible tape, about prices ranging between $15,000 and $19,000 for something. Short testified the references were to the prices of cocaine.

6. Six months before the trial, the government had furnished reports and other evidence to the defense showing that between July 16 and November 5, 1987, Patrick Perkins and agent Allen had been in regular contact, discussing two ongoing drug conspiracies. One was Perkins' agreement to provide Allen with additional cocaine and the other was a plan to import a large quantity of marijuana. At the outset of trial, the court refused to admit any of this evidence insofar as it bore on the marijuana conspiracy but indicated it would allow evidence of two other conversations involving Perkins post July 18. One of these was a taped telephone conversation on September 24, 1987, in which Allen and Patrick discussed the sale of additional cocaine. Reference was made to Patrick's bringing "up one of those items got from you before ... for that price that was quoted me before ... the Boston price." The second was a recorded conversation between Short and Perkins in which Patrick told Short that Allen, whom he had discovered was an agent, had asked Patrick (on November 5, 1987, see below) to become an informant. Patrick warned Short that he could be killed if he cooperated. These two conversations were admitted.

7. On November 5, 1987, Allen revealed his identity as a DEA agent to Patrick Perkins and asked him to cooperate with several other drug investigations. Allen drove Patrick Perkins to the DEA office in Boston and told him that his wife, Lois, was subject to immediate arrest in Florida. Patrick Perkins declined to become a cooperating informant. Both Lois and Patrick Perkins were subsequently arrested.

8. During the pendency of this appeal, on the prosecution's motion, the district court unsealed a submission from the government that had previously been presented to it in camera on March 6, 1989, the day the trial began. The submission revealed that James Short was an informant against DEA agent, Edward O'Brien, who, according to the submission, was the agent who "originally recruited Short as an informant in the Spring of 1987." It stated that O'Brien was under investigation and that Short had had a prior business relationship with O'Brien. Stating that O'Brien was not a witness to any events which were the subject of the indictment, and was now in Washington, D.C., the prosecution urged the court to seal and impound the submission, and not disclose it to the defense, in order not to compromise the internal affairs investigation against O'Brien. The court acquiesced, finding the information therein was collateral to any issue that could arise in the Perkinses' case. It reserved the right to alter its ruling if, during the trial, the information in the in camera submission "could become relevant or could be considered exculpatory." The submission is attached as an appendix to this opinion.

10. After the prosecution rested, Perkins called no witnesses, but Lois took the stand. She testified, in essence, that Short had telephoned her on the evening of July 17th to say that a friend of Short's would drop off a package for Short on the 18th. She said she gave the package to Allen on the 18th and took a package in return, but did not know that Short's package contained cocaine nor did she look into the bag Allen brought. Short said he would return and pick up the second bag and did so. She knew nothing of Patrick Perkins' dealings with Allen. She did not know Short's package contained cocaine until Short cut into it in the kitchen.

11. After a five day jury trial, both defendants were found guilty of conspiracy and of possession with intent to distribute cocaine. This appeal followed.

I. The Appeal of Patrick Perkins.

On appeal, Patrick Perkins claims reversible error on several grounds: 1) the information in the in camera submission contained valuable impeachment evidence against Short, withholding of which violated the government's constitutional duty to provide exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); 2) nondisclosure of the in camera evidence, coupled with the court's refusal to permit Patrick's attorney to cross-examine Short concerning certain financial dealings and tax records, violated Patrick's Confrontation Clause rights; and 3) the court committed error in admitting into evidence the two recorded statements that Patrick Perkins had made after the termination of the conspiracy. We consider each of these contentions in turn.

A. Nondisclosure of In Camera Evidence.

Patrick Perkins argues that the information contained in the in camera submission, revealing Short's relationship with DEA agent Edward O'Brien, was material and exculpatory. He says it could have been used to impeach Short, who was a key prosecution witness, and that its nondisclosure affected the outcome of the case adversely to Perkins.

There is no question Patrick made a timely request for all exculpatory evidence, including impeaching evidence. Prior to trial, he filed, and the magistrate judge allowed, his motion seeking exculpatory evidence, including,

any evidence which may be used to impeach or discredit any witness which the government intends to call at the trial of the captioned matter, particularly but not exclusively, inconsistent statements of a witness or between witnesses, statements of bias or...