U.S. v. Pou

• Decision Date: 06 January 1992
• Docket Number: 91-1766 and 91-1770,Nos. 91-1765,s. 91-1765
• Citation: 953 F.2d 363
• Parties: UNITED STATES of America, Appellee, v. William Anthony POU, Appellant. UNITED STATES of America, Appellee, v. Joseph Michael POU, Appellant. UNITED STATES of America, Appellee, v. Miguel MONDEJAR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 363

953 F.2d 363

UNITED STATES of America, Appellee, v. William Anthony POU, Appellant.

UNITED STATES of America, Appellee, v. Joseph Michael POU, Appellant.

UNITED STATES of America, Appellee, v. Miguel MONDEJAR, Appellant.

Nos. 91-1765, 91-1766 and 91-1770.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 17, 1991.

Decided Jan. 6, 1992.

Clarence E. Mock, III, Oakland, Neb., for W. Pou.

Michael F. Gutowski, Omaha, Neb., for J. Pou.

Phillip G. Wright, Omaha, Neb., for Mondejar.

Bruce W. Gillian, Lincoln, Neb., for U.S.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

William Pou, Joseph Pou, and Miguel Mondejar each was charged with conspiracy to distribute or possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1988) (Count I); use of a communication facility (the telephone) in furtherance of the conspiracy, a violation of 21 U.S.C. § 843(b) (1988) (Count III); and knowing distribution or possession with intent to distribute cocaine within 1000 feet of a public school in violation of 21 U.S.C. § 845a(a) ¹ (Count VII). ² The defendants were tried jointly to a jury in District Court. ³ All were found guilty of Count I; all were acquitted on Count VII. Only William Pou was found guilty of Count III.

William Pou was sentenced to 360 months in prison to be followed by five years of supervised release. He was ordered to pay a special assessment of $100 and his share (one-third) of the taxable costs of trial. The District Court sentenced Joseph Pou to a prison term of 260 months, with five years supervised release, and ordered him to pay a special assessment of $50 and one-third of the taxable costs of trial. Mondejar was sentenced to a 290-month term of imprisonment, with five years supervised release. He, too, was ordered to pay a special assessment of $50 and his share of the taxable costs. All three defendants appeal their convictions and their sentences. We affirm the District Court in all respects.

On appeal, Mondejar and both Pous allege Brady violations on the part of the government because of the alleged failure of the prosecution to turn over to counsel for the defense unidentified exculpatory and/or impeachment materials in its possession. Appellants assert that the court erred in declining to conduct an in camera review of the prosecutor's entire file in this case. Joseph Pou and Mondejar challenge the District Court's failure to try them separately, in spite of their motions for severance. Mondejar alleges that more than one conspiracy was proved, but only one was charged. Thus, the variance between the indictment and the proof at trial, according to Mondejar, requires a reversal of his conviction. As to their sentences, all appellants contend that the District Court erred in basing their Guidelines sentences upon the court's conclusion that at least five to fifteen kilograms of cocaine were handled by the coconspirators. Joseph Pou challenges the enhancement of his Guidelines sentence for possession of a firearm during the commission of the conspiracy. Both Pous, claiming indigency, challenge the District Court's assessment of costs. We will consider each of these grounds for appeal separately.

I.

All the appellants claim that the District Court's handling of their Brady challenges was ineffective to ensure that the prosecutor released to them all exculpatory or impeachment materials in the government's files. We find no merit to their claims.

About two weeks before the court began receiving evidence at trial, the United States Attorney's office sent to appellants' counsel the plea and immunity agreements it had made with government witnesses and redacted copies of Federal Bureau of Investigation (F.B.I.) 302 reports, written summaries of some of the interviews that the F.B.I. conducted with witnesses in this case. At the appellants' request, the District Court examined the unredacted 302s in camera, and also reviewed 302s that had not been produced to the defense. The court ordered the release of some of the withheld summaries and some of the redacted information. The court declined appellants' request to order production of all the government's files in this case for an in camera review.

Shortly after the trial got underway, the F.B.I. case agent for the first time revealed to the prosecutor and to counsel for the defense that one of the government's witnesses, Kevin Dobson, was a paid informant for the F.B.I. The information was in the hands of the defense one week before Dobson was called to testify as a witness for the prosecution and the defense cross-examined him on his role as a government informant.

Also, the District Court received in evidence a photograph, about which the government asserted it was unaware--and thus the defense was unaware--until the trial had commenced.

These incidents form the basis for appellants' claims that the prosecution withheld material in the government's files to which the defense was entitled. A review of the applicable law convinces us that the District Court did not err in refusing to review all of the government's files in camera.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court declared the rule "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196. Over the years the Court has elaborated upon the rule. The obligation of disclosure now encompasses not only exculpatory evidence, but also evidence that might be valuable in impeaching government witnesses. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972)). Further, the duty to produce such material arises even if the defense request is non-specific or if there is no request at all. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976).

According to appellants, because the incidents cited above were clearly violative of their due process rights as set forth in Brady, it therefore follows that the government withheld other information that would have resulted in an acquittal at trial. The District Court, relying on the representations of the prosecution that it had produced all Brady materials in its files, refused to conduct an in camera review of all the government files. Mondejar further argues that the incidents detailed above, in and of themselves, warrant reversal of his conviction and remand for a new trial. In the alternative, he, together with the other appellants, requests this Court to remand the case to the District Court for an in camera review of all the government's files.

"In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, it is the [prosecuting entity] that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final." Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 1002, 94 L.Ed.2d 40 (1987) (citation omitted) (footnote omitted). There is no constitutional requirement for the prosecutor "to deliver his entire file to defense counsel." Agurs, 427 U.S. at 111, 96 S.Ct. at 2401; accord Bagley, 473 U.S. at 675, 105 S.Ct. at 3379; see also United States v. McMahan, 744 F.2d 647, 651 (8th Cir.1984) (Brady "does not require the government to provide defendants with all information it has regarding each of its witnesses").

The Brady rule applies in situations where, after trial, it is discovered that the prosecution had material information of which the defense was unaware. Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. We agree with the Court of Appeals for the Seventh Circuit: "Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial. A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court." United States v. Navarro, 737 F.2d 625, 631 (7th Cir.), cert. denied, 469 U.S. 1020, 105 S.Ct. 438, 83 L.Ed.2d 364 (1984).

Mondejar and William Pou cite an opinion from the Court of Appeals for the Second Circuit as authority for their position that remand for an in camera review is appropriate here. See United States v. Kiszewski, 877 F.2d 210 (2d Cir.1989). Their reliance is misplaced. In Kiszewski, the court did remand for an in camera review, but not of the prosecutor's entire file. Instead, the alleged Brady material was quite specific: the personnel file of an F.B.I. agent who was a government witness at trial. Very specific documents in that file, with possible impeachment value, had been identified, but the court nevertheless declined an in camera review. The review on remand was limited to this witness's file. See id. at 215-16.

We decline to expand the Brady rule and the obligation of the district courts by remanding this case solely because of appellants' less than logical conclusion that, because some Brady material was disclosed late, some other Brady material was withheld altogether. Cf. United States v. Stuart, 923 F.2d 607, 613 (8th Cir.) (speculation as to existence of materials "in other files in other jurisdictions does not require ... the trial court to conduct an in camera review of government files for evidence favorable to the accused"), cert. denied, --- U.S. ----, 112 S.Ct. 145, 116 L.Ed.2d 111 and --- U.S. ----, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991); United States v. Barnes, 798 F.2d 283, 287 (8th Cir.1986) (Court...