U.S.A. v. Rosario-Peralta, ROSARIO-PERALT

• Decision Date: 01 March 1999
• Docket Number: CEDENO-PERALT,ROSARIO-PERALT,A,No. 97-2086,DIAZ-MORL,D,N,No. 97-2084,97-2084,97-2086
• Citation: 199 F.3d 552
• Parties: (1st Cir. 1999) UNITED STATES, Appellee, v. CRUZ/K/A CRESCENCIOefendant, Appellant. UNITED STATES, Appellee, v. JOHNNY DAVIDefendant, Appellant. UNITED STATES, Appellee, v. RAMON ANTONIO JAVIER, Defendant, Appellant. o. 97-2085, . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 552

199 F.3d 552 (1st Cir. 1999)

UNITED STATES, Appellee, v. CRUZ ROSARIO-PERALTA, A/K/A CRESCENCIO CEDENO-PERALTA, Defendant, Appellant.

UNITED STATES, Appellee, v. JOHNNY DAVID DIAZ-MORLA, Defendant, Appellant.

UNITED STATES, Appellee, v. RAMON ANTONIO JAVIER, Defendant, Appellant.

No. 97-2084, No. 97-2085, No. 97-2086.

United States Court of Appeals for the First Circuit.

Heard March 1, 1999.

Decided December 23, 1999.

APPEALS FROM THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Perez-Gimenez, U.S. District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Jorge A. Toro McGowan for appellant Cruz Rosario-Peralta.

Benjamn Angueira-Aguirre for appellant Johnny Diaz-Morla.

Zygmunt G. Slominski, by appointment of Court, for appellant Ramon Antonio Javier.

Michelle Morales, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Selya, Circuit Judge.

TORRUELLA, Chief Judge.

Defendants Cruz Rosario-Peralta, Johnny David Diaz-Morla, and Ramon Antonio Javier appeal their convictions and sentences for possession with intent to distribute cocaine while on the high seas. We addressed portions of these appeals in our previous decision, United States v. Rosario-Peralta, 175 F.3d 48 (1st Cir. 1999). In that opinion, we rejected defendants' challenge to the sufficiency of the evidence, but we found ourselves unable to properly assess defendants' claims of discovery violations on the existing record. Thus, we retained jurisdiction of the case and remanded to the district court for the resolution of several discovery issues. On August 27, 1999, the district court issued its findings in response to our instructions. Having received supplemental briefing from the parties, we now resume our consideration of the remaining issues on appeal.

BACKGROUND

We outlined the facts of this case at length in our previous decision, see Rosario-Peralta, 175 F.3d at 50-51, and we see no reason to repeat that entire account here. Nevertheless, a very brief review, focused on the facts relevant to today's decision, will set the factual context for our current discussion.

At approximately 1:11 a.m. on October 17, 1996, a United States Customs Service aircraft spotted a vessel heading towards Puerto Rico without any lights. After monitoring the suspect vessel for almost two hours, with the assistance of a United States Army National Guard helicopter, the government agents illuminated the suspect vessel and spotted its crew dumping bales, which later proved to contain cocaine, into the ocean. At trial, there was testimony, contested by defendants, that the helicopter remained over the suspect vessel and continued to illuminate it until it was intercepted. When a Customs vessel arrived on the scene and identified itself, defendants' vessel accelerated until the Customs vessel rammed it from astern. Defendants Rosario-Peralta and Javier then jumped into the water and refused to allow the Customs crew to retrieve them for several minutes. Defendant Diaz-Morla sped away in the vessel and was caught by a Puerto Rico Police Department vessel. After waiving their rights and agreeing to speak to the agents, defendants gave conflicting and implausible statements about how they came to be traveling at sea early that morning. Later, a drug-sniffing canine detected narcotics contamination on defendants' vessel.

Following their convictions, appellants appealed, and we remanded to the district court for findings, as discussed above. We now consider those findings, as well as appellants' other arguments on appeal.

DISCUSSION

I. The District Court's Failure to Require the Government to Disclose Particular Communication Records and Logs

A. Our Prior Opinion and the District Court's Findings

In our earlier opinion in this case, we found that the district court abused its discretion if it denied discovery of certain communication records and logs on the ground that they were irrelevant, when the district court had not reviewed the materials. See Rosario-Peralta, 175 F.3d at 55. We also recognized the possibility that the district court denied discovery of the logs based on the need for confidentiality, rather than because the logs were irrelevant, and we expressed reluctance to accept the government's stated concern for confidentiality as a basis for denying discovery of the logs. See id. at 57 n.8. We observed that, because the district court denied discovery of the logs based on either relevance or the need for confidentiality, the district court did not determine whether the logs were required to be disclosed under Fed. R. Crim. P. 16(a)(1)(C), Brady v. Maryland, 373 U.S. 83 (1963), or the Jencks Act, 18 U.S.C. § 3500. See id. at 56.

We then noted that, in an attempt to resolve the discovery issues on appeal, the government submitted a copy of what it claimed to be the only relevant log: the October 17, 1996 morning log of the United States Command Center Sector for United States Customs ("Sector"). See Rosario-Peralta, 175 F.3d at 56. We found it inappropriate to review the Sector log or to resolve the remaining discovery issues for the first time on appeal, so we remanded to the district court to perform both tasks. See id. We instructed the district court to review the Sector log, as well as any other potentially relevant logs, to determine: (1) whether the logs should have been disclosed under Rule 16, Brady, or the Jencks Act, and (2) if so, whether the government's failure to disclose the logs materially prejudiced the defense. See id. at 57.

On August 27, 1999, the district court responded with a four-page statement of its findings. The district court found that the logs at issue were: (1) the San Juan Sector Communication Master Station Log for October 17, 1996; (2) the log for an unnamed land-based agency codenamed "Razorback"; and (3) the log from the Drug Interdiction Operations Center (codenamed "Salty Dog").¹ The court reviewed these sets of logs and determined that they were required to be disclosed by Rule 16(a)(1)(C) and also as Brady material, but were not discoverable under the Jencks Act. Finally, the district court found that defendants were not prejudiced by the government's failure to disclose the logs, because the information to which defendants were entitled was made available to them through other means, namely, the reporting data and FLIR videotapes from Omaha 13, Omaha 85, and Hawk 514.

B. Appellants' Renewed Claims of Discovery Violations

Although appellants agree with the district court's determination that the logs were discoverable under Rule 16(a)(1)(C) and also under Brady, they claim that the court erred in finding that all relevant information had been disclosed and that the defendants suffered no prejudice from the nonproduction. After careful consideration of the parties' supplemental briefs on this issue, we find no reversible error in the district court's ruling.

As a preliminary matter, we emphasize that the government's failure to produce discoverable materials in this case is a serious infraction which we do not condone. There is no dispute that the prosecution had access to these logs before and during trial. The sole basis offered by the United States for resisting disclosure is the desire to maintain the secrecy of the logs' code names, an objective that could have been easily and effectively achieved through redaction without depriving the appellants of information to which they were entitled under the Rules of Criminal Procedure and federal case law. Mindful of the government's error, we will proceed to consider appellants' claims of error by the district court.

Appellants' first contention -- that the district court could not know whether all relevant information was disclosed to them through other means -- is their strongest. The government's response -- that appellants fail to "pinpoint" any information that was not disclosed -- is clearly inadequate; appellants' very point is that they do not and cannot know what exculpatory information may have been on the logs, and yet the government expects them to identify particular pieces of information to which the government improperly denied them access. Given the accidental destruction of the Salty Dog log requested by the defense, we are inclined to agree with the appellants that the district court was in a poor position to determine with absolute certainty whether that log contained any discoverable information that was not in fact produced in another form. However, we do not require "absolute certainty" to support a trial court's determinations on the discoverability of information under the federal rules nor under Brady. The district court's findings were made with the benefit of written and oral argument from both sides and after the government produced to the appellants and to the court all existing materials that could reasonably have been expected to contain discoverable information relevant to the motion to compel. Because the appellants have done little more than speculate as to what other information the logs might have contained, we simply cannot hold that the district court abused its discretion in finding that all discoverable information had in fact been produced to the defendants by other means.

Whatever our nagging doubts regarding the completeness of the information produced to appellants by other means, we are in complete agreement with the district court that appellants were not prejudiced by the failure to produce the logs. The record amply demonstrates that appellants were not impeded in the presentation of their defense, and the substantial other evidence presented at trial was such that the mere possibility of additional...