U.S. v. Phillips

• Citation: 854 F.2d 273
• Decision Date: 14 October 1988
• Docket Number: No. 87-2576,87-2576
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard D. PHILLIPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 273

854 F.2d 273

UNITED STATES of America, Plaintiff-Appellee, v. Howard D. PHILLIPS, Defendant-Appellant.

No. 87-2576.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 1988.

Decided Aug. 16, 1988.

Rehearing and Rehearing En Banc Denied Oct. 14, 1988.

Michael L. Chernin, Milwaukee, Wis., for defendant-appellant.

Francis D. Schmitz, Asst. U.S. Atty., Patricia J. Gorence, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before BAUER, Chief Judge, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Appellant, Howard Phillips, appeals his conviction for robbing a federally insured savings and loan institution. See 18 U.S.C. Sec. 2113(a), (d) (1982 & Supp. IV 1986). Phillips contends that the district judge deprived him of due process when the judge refused to release to Phillips the contents of an FBI informant file. Phillips contends that the file contains exculpatory information beyond that contained in a summary given to him by the prosecution, thus the entire file should have been provided to him. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecutor's failure to disclose exculpatory material violates Due Process). The district judge acted properly and protected Phillips's rights when he inspected the entire file in camera, made a finding that the summary was complete and accurate, and restricted Phillips's discovery to the summary. The district judge's ruling and Phillips's conviction are affirmed.

FACTS

On September 30, 1986, two men robbed a branch of the Republic Savings and Loan in Milwaukee, Wisconsin. Later that day, Milwaukee police officers spotted a car that fit the description of the one used in the robbery parked in an alley behind the home of appellant Phillips. As Phillips and another man, James Baldwin, left the house, the officers arrested them. A search of the car and the house revealed the stolen money (marked by dye from an exploding dye-pack placed in the money during the robbery) and other evidence of the crime. Since the date of his arrest, Phillips has never denied his involvement in the robbery. Instead, he has maintained that he participated in the crime only as an undercover informant for the FBI and that he acted with the acquiescence of the FBI agent to whom he reported. (Assuming this is true, Phillips alleges he would lack the necessary intent to be convicted of knowingly robbing the savings and loan.)

Phillips's involvement with the FBI began in late August 1986, about a month before his arrest in this case. Phillips initiated At the jailhouse meeting, Phillips told Craft that he believed a certain savings and loan was the target for an upcoming robbery, and that he knew that certain individuals had been "casing" the savings and loan in preparation for the robbery. Acting on Phillips's tip, the FBI shortly thereafter arrested the individuals named by Phillips in the vicinity of the savings and loan. Special Agent Craft was now convinced that Phillips possessed reliable and accurate information which had already foiled one robbery. He returned to visit Phillips in jail on September 12, 1986. At the second meeting, Craft advised Phillips that he would receive payment for his help in preventing the robbery. He also advised Phillips orally of the FBI's informant guidelines, which Phillips would be expected to follow. At trial, Special Agent Craft testified that, consistent with those guidelines, he specifically warned Phillips that:

                contact with the FBI by placing a telephone call to the FBI's Milwaukee office.  Special Agent Dan Craft answered the call.  When Phillips spoke with Special Agent Craft, Phillips was wanted by the state of Wisconsin and, further, he believed that the FBI was looking for him.  (The record does not reflect the nature of the state charges or whether the FBI was, in fact, interested in Phillips.)    Phillips wished to surrender to the FBI, but after calling Craft, he was arrested by Wisconsin authorities.  Thereafter, Special Agent Craft met Phillips on September 10, 1986, while Phillips was being held in the Milwaukee County Jail on the state charges.  At the jail, Craft recruited Phillips as a paid informant to help the FBI combat a rash of bank robberies in Milwaukee
                

"[an informant] cannot be involved in a violent act or in the planning of it, and if they learn of a violent act, a pending violent act, that they have to do everything they can to dissuade it. They cannot be involved or initiate the planning of any criminal act. All they can do is listen and observe. They cannot be involved in any criminal act, no matter how minor. If we find out about it, we are obligated and mandated to advise the proper authorities and that if they do participate with us, that does not shelter them from any type of prosecution."

Wisconsin authorities shortly thereafter released Phillips and the Phillips-Craft relationship once again bore fruit almost immediately. On September 22, 1986, Phillips twice called Special Agent Craft to tell him about another forthcoming bank robbery. During the second call, Phillips told Craft that he might have to accompany the robbers. At trial, the parties disputed Craft's response. Phillips contends that Craft replied, "Okay," but Craft testified that he told Phillips, "[A]bsolutely not ... you cannot go along." The robbery attempt aborted (because the bank had closed by the time the robbers arrived), and the waiting police arrested three people, including Phillips. However, Phillips was not charged in connection with the September 22 robbery attempt because the police did not believe they had sufficient evidence to make a good case against him.

Phillips next met with Special Agent Craft on September 24, 1986, when Phillips went to the FBI offices to be paid for the information he had given Craft at their September 10 meeting at the jail. By this time, Milwaukee police had informed Craft of Phillips's arrest during the attempted robbery two days earlier. Again, Craft and Phillips dispute Craft's response to Phillips's participation in the crime. Craft testified at trial that he "scolded [Phillips] like I would my eleven-year old son," and warned him not to get involved in any more criminal activity. Phillips contends that Craft merely paid him for the information he had given Craft at their September 10 meeting, showed him a videotape of a bank robbery, and patted him on the back.

Six days later, on September 30, 1986, Phillips and his companion, James Baldwin, committed the robbery for which Phillips now stands convicted. A federal grand jury indicted Phillips and Baldwin on October 8, 1986, charging them with aggravated bank robbery. See 18 U.S.C. Sec. 2113(a), (d). Since his arrest, Phillips has steadfastly maintained that he believed himself to be working for Special Agent Craft during the robbery.

On October 20, 1986, Phillips's attorney requested that the government produce the exculpatory evidence contained in Phillips's FBI informant file, in particular any notes, transcripts or logs containing accounts of Craft's meetings and telephone conversations with Phillips. The attorney believed that the file contained information that would bolster Phillips's claim that he acted in conformity with Craft's instructions, or at least information with which he could impeach Craft's credibility. Soon thereafter, Phillips and the government agreed that the government would provide Phillips with a summary of the file. On March 5, 1987, four days before the commencement of Phillips's trial, the government produced the summary, as promised.

After reviewing the summary, Phillips's attorney expressed his dissatisfaction with the summary the government had provided, stating that the document failed to comply with his discovery request. Thus, on March 6, 1987, the attorney filed a motion in limine with the court in the form of a letter, requesting that the judge examine the entire file in camera to ensure that the summary fully reflected all of the exculpatory material in the file. Specifically, Phillips's attorney asked that the court address five specific questions regarding the contents of the informant file (as well as a general request for further exculpatory information) and that the court order production of any materials bearing on the questions raised. The government joined in the motion for in camera review of the file. The judge then reviewed the entire file in camera. On March 9, 1987, immediately prior to trial, the trial judge announced that he had completed his review of the summary and the complete file and had found that the summary fairly reflected all exculpatory material in the file. The judge went on to address each of Phillips's questions, then denied Phillips's motion to gain access to the entire informant file. ¹

The trial commenced on March 7, 1987. At trial, Phillips attempted to convince the jury that he acted only as an informant during the September 30 robbery. Phillips contended that he had tried to notify Craft of the robbery by telephone on September 29, but that Craft was out of the office. He alleged he again was unable to contact Craft on September 30 because he could not use a telephone at any time when he was not observed by Baldwin. Apparently, the jury did not believe Phillips's account; on March 13, 1987, the jury found Phillips guilty as charged. On appeal, Phillips renews his argument that the informant file contains exculpatory materials beyond the information conveyed in the summary. Thus, he claims he should be granted discovery of the file and a new trial in which to use the information therein.

DISCUSSION

Phillips bases his argument on his Due Process rights, as set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). ² In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material...