United States v. Laurent

United States Court of Appeals
For the First Circuit

No. 09-1543

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES LAURENT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges.

Richard L. Goldman, by appointment of the court, with whom
Orlen and Goldman was on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.

June 17, 2010
 BOUDIN, Circuit Judge. On November 17, 2006, a

confidential informant told an undercover officer--New Hampshire

state trooper Melissa Robles--about a man who was selling crack

cocaine in Manchester. At Robles' request, the informant called

the man to arrange a meeting. That afternoon, the informant and

Robles drove to a supermarket parking lot in Manchester where a man

arrived, driving alone in a maroon Chevrolet Malibu with

Connecticut license plates, and introduced himself as "Frenchie."

Frenchie entered Robles' car and--after ensuring that

Robles was neither wired nor armed--sold her a baggie containing

0.86 grams of crack cocaine, taken out of a stash of several

baggies, in exchange for $100 in cash (whose bill numbers had been

recorded). Robles and Frenchie talked briefly after the sale, and

then Robles and the informant drove away. A surveillance team

observed Frenchie, including his entry into and exit from Robles'

car.

Between November 2006 and July 2007, Robles made five

other purchases of crack cocaine from Frenchie: on November 29,

2006 ($200 for 1.96 grams); December 11, 2006 ($300 for 3.23

grams); January 9, 2007 ($200 for 2.36 grams); March 19, 2007 ($200

for 2.36 grams); and July 18, 2007 ($200 for 1.33 grams). All but

the last purchase occurred in the afternoon in broad daylight; and

Robles said it was still light out during the last, even though it

was in the evening.

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 The surveillance team observed most of these

transactions. They also watched Frenchie before and after some of

them, observing him on several occasions entering with a key and

exiting a house at 196 Lowell Street in Manchester, which they

concluded was a base for his drug operations. Audio recordings

were made of some of the meetings between Robles and Frenchie, and

of some phone calls between Robles, Frenchie and two others.

One of the other phone call participants was Frenchie's

cousin "Zeus" (whom Robles later identified as Jean Verdiner);

Frenchie referred Robles to Zeus on one occasion when Frenchie was

not available to sell drugs and Robles then purchased drugs from

Zeus. The second participant was a man Robles knew as "Blaze"

(whom Robles later identified as Wilfrantz Verdiner); the silver

Chevrolet Impala that Frenchie drove to the March 19 and July 18,

2007, transactions was registered in Wilfrantz's name, which also

appeared on the 196 Lowell Street mailbox.

In between those last two transactions, Robles applied--

on March 26, 2007--for an arrest warrant, supplying an affidavit

that identified the subject of the warrant as "Frenchie," a black

male who lived at 196 Lowell Street in Manchester. Robles arranged

with Manchester police officers to make that arrest on August 22,

2007. That evening, Robles called Frenchie to set up a transaction

and the two met in a supermarket parking lot in Hooksett.

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 Frenchie arrived alone, driving the silver Impala that he

had driven to the two prior transactions. He was holding a wad of

tissues when Robles approached his car. When Frenchie opened the

wad, a small bag fell onto the passenger seat. Reaching through

the car window, Robles placed $200 in marked bills on the seat and

took the bag, which contained 2.47 grams of crack cocaine. After

the purchase, Robles' supervisor directed Manchester police

sergeant Robert Moore to effect Frenchie's arrest.

A member of the surveillance team for some of the prior

transactions, Moore was parked in the same lot as Robles and

Frenchie on August 22, 2007, and observed them conversing through

Frenchie's car window. Moore and fellow officer Stephen Coco,

another member of the team, watched Robles drive off and then

independently followed Frenchie's car until two other Manchester

officers stopped it, with Moore and Coco (as well as another member

of the surveillance team) confirming from afar that the correct car

had been stopped.

The driver, ordered to exit the silver Impala, was James

Laurent, whom Moore and Coco later identified as Frenchie both from

seeing him and from his driver's license photograph. In the course

of the arrest, the officers found $990 in cash on Laurent's person,

including the marked $200 from Robles' drug purchase money and--

stuffed into Laurent's waistband--marijuana and a clear plastic bag

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containing 5.73 grams of crack cocaine. The car also contained

four cell phones.

Laurent was indicted on seven counts of distributing

crack cocaine (the seven transactions already described) and one

count of possession with intent to distribute crack cocaine (the

cocaine seized upon his arrest). 21 U.S.C. § 841(a)(1) (2006). He

filed two motions to suppress evidence seized and statements made

in connection with his August 22, 2007, arrest. The district judge

denied both motions.

In the jury trial that followed, Laurent did not testify,

but his primary defense was misidentification--that he was not

Frenchie, and that instead Frenchie might have been Jean Verdiner,

Wilfrantz Verdiner, or Shoubert Beauchamps (a man who also

reportedly lived at 196 Lowell Street). Laurent's counsel

emphasized that the government had no "physical evidence connecting

Mr. Laurent to these charges," specifically, no photographs or

video recordings of the meetings between Frenchie and Robles, and

no fingerprint evidence connecting Laurent to the bags of crack

cocaine.

During cross-examination of Robles, Laurent and his

counsel learned for the first time that a video recording had been

made of the first drug deal on November 17, 2006. Robles explained

upon further questioning that no video had been offered or would be

at trial because when she requested it from the Manchester Police

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Department a few months after Laurent's arrest, she learned that

the videotape--by then almost a year old--had been routinely erased

by the Manchester Police Department pursuant to standard practice.

Laurent promptly filed a motion to dismiss, arguing that

the video's destruction and the failure to timely disclose its

creation and destruction had deprived him of material, potentially

exculpatory evidence. Robles said she had advised the federal

prosecutor of the loss; and the prosecutor conceded that in the

course of pretrial discovery, she must have learned of the tape and

failed to inform Laurent of its creation and destruction, but she

said her omission was unintentional. In response, the court

dismissed the first count against Laurent--the count predicated on

the November 17, 2006, drug transaction.

The jury convicted Laurent on the seven remaining

counts--six of distribution and one of possession with intent to

distribute--and found that the drug weight for the last count was

greater than 5 grams. Rejecting arguments for a lower sentence,

the court imposed a sentence of 84 months' imprisonment. Laurent

now appeals from his conviction and sentence.

Laurent's main arguments on appeal concern the videotape.

In considering his claims, we are concerned with two events rather

than one: the erasure of the tape by the local police and the

failure by the federal prosecutor to disclose before trial the

prior existence of the tape and its erasure to Laurent. It is not

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clear that the erasure can be held against the United States, which

apparently did not control the investigation and certainly did not

erase the tape; but even if we simplify matters by assuming

otherwise, the destruction itself does not give Laurent a viable

claim.

Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988), and

related cases do recognize a due process violation where the

government destroys evidence in a criminal case, but not in all

circumstances. The Supreme Court has distinguished between

evidence that was apparently exculpatory before the evidence was

destroyed, for which the failure to preserve is a due process

violation even without bad faith, and evidence that was only

"potentially useful" for the defense, for which the defendant must

establish the government's bad faith to show a violation.1

Here, the video was only potentially useful, as Laurent's

counsel conceded in the district court; indeed, unless the several

officers were collectively lying, it is more likely than not--if

the seller in the tape were visible--that the tape would have

inculpated Laurent. Thus, Laurent must prove bad faith destruction

of evidence, but he has pointed to no evidence that would undermine

the government's description of a routine erasure, by no means

1
Illinois v. Fisher, 540 U.S. 544, 549 (2004) (per curiam);
California v. Trombetta, 467 U.S. 479, 485, 488-89 (1984);
Olszewski v. Spencer, 466 F.3d 47, 55-56 (1st Cir. 2006), cert.
denied, 550 U.S. 911 (2007); United States v. Femia, 9 F.3d 990,
993 (1st Cir. 1993), cert. denied, 516 U.S. 936 (1995).

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uncommon, e.g., United States v. Garza, 435 F.3d 73, 75-76 (1st

Cir.), cert. denied, 547 U.S. 1158 (2006); United States v. Lewis,

40 F.3d 1325, 1340 (1st Cir. 1994); United States v. Arra, 630 F.2d

836, 849 (1st Cir. 1980), nor were the circumstances here

suspicious.

Laurent's second argument, directed against the

government's delayed disclosure, does implicate the United States,

because the federal prosecutor (by Robles' account) was told of the

tape. Brady v. Maryland, 373 U.S. 83, 87 (1963), requires the

prosecutor to produce exculpatory evidence to the defense and this

could conceivably include information that someone--even a private

citizen--had destroyed exculpatory evidence. But, of course, the

tape was not shown to be exculpatory and, as we shall explain, its

destruction provided no basis for an inference helpful to Laurent.

However, the district court found that putting Brady to

one side, there had nevertheless been a violation of Federal Rule

of Criminal Procedure 16, which governs pre-trial disclosure by

federal prosecutors in criminal cases. Fed. R. Crim. P. 16(a),

(c). Whether or not this is so,2 the government wisely does not

dispute that it should have disclosed information about a destroyed

piece of tangible evidence previously in police hands. Instead,

2
The rule's language arguably required only that the
government produce the tape if it had it; the most pertinent
language in Rule 16 requires that "material" items of various kinds
be disclosed to the defense, but the items are all seemingly
tangible or arguably so in context. Fed. R. Crim. P. 16(a)(1).

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the government says that by dismissing the count directed at the

videotaped transaction, any possible prejudice was removed--ample

sanction for an inadvertent failure to disclose.

To the extent that the nondisclosure was a violation, of

either Brady or Rule 16, we review the district court's remedy for

abuse of discretion. United States v. Soto-Beniquez, 356 F.3d 1,

30-31 (1st Cir.), cert. denied, 541 U.S. 1074 (2004); United States

v. Josleyn, 99 F.3d 1182, 1196 (1st Cir. 1996). Where an error is

unintentional, remedying prejudice is usually the key concern.3

Laurent's only claim of prejudice from the nondisclosure is that

had disclosure been made, his counsel in opening argument would not

have said: "You would think that the government who has, entirely

has the burden, would maybe take a little videotape of this drug

transaction or these drug transactions. No."

Laurent argues that when Robles then revealed in

cross-examination that one video had been made--even though it was

now unavailable--it undermined his counsel's credibility in the

3
United States v. Van Anh, 523 F.3d 43, 51 (1st Cir.)
(requiring the defendant to show prejudice from a Brady violation),
cert. denied, 129 S. Ct. 236 (2008); United States v. Alvarez, 987
F.2d 77, 85 (1st Cir.) (same for Rule 16 violation), cert. denied,
510 U.S. 849 (1993). Prejudice from delayed disclosure is
variously described. E.g., United States v. Devin, 918 F.2d 280,
290 (1st Cir. 1990) ("given timeous disclosure [of the pertinent
information], a more effective [defense] strategy would likely have
resulted"); United States v. De La Rosa, 196 F.3d 712, 716 (7th
Cir. 1999) (when defendant "is unduly surprised and lacks an
adequate opportunity to prepare a defense, or when the violation
substantially influences the jury").

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jury's eyes. However, defense counsel was free to make clear that

any misstatement was the government's fault; and, more important,

it did not undermine counsel's consistent theme, from opening to

closing and in between: that the government could offer no physical

evidence--such as videotapes--to corroborate its officers'

identification of Laurent as Frenchie, and that it instead would

rely on "words, and words alone."

In fact, Robles' delayed revelation arguably helped

Laurent's misidentification argument since his counsel wove the

incident into his theme that the government had been "deceptive,

and that they have been hiding things, and you should hold that

against them," combining the videotape's destruction with the

government's failure to present as a witness the confidential

informant who initially introduced Frenchie to Robles, and arguing

that this evidence was perhaps not presented because it would have

revealed that Laurent was not Frenchie.

Finally, no tweaking of defense counsel's argument could

have made any difference. Multiple members of the surveillance

team identified Laurent as Frenchie; he was seen making multiple

drug deals almost all in daylight with an undercover officer; and

surveillance followed his car from the last drug transaction to the

stop where officers found marked bills and more drugs on his

person. Dismissal of the entire case--a rare remedy that is deemed

"drastic," Soto-Beniquez, 356 F.3d at 30, and "draconian," United

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States v. Candelaria-Silva, 162 F.3d 698, 703 (1st Cir. 1998)--

could scarcely have been justified.

Alternatively, Laurent claims that at a minimum a

continuance should have been granted so his counsel could

investigate further the details of the destruction. But while

counsel did request a continuance and discovery as a possible

lesser remedy in his written motion to dismiss the entire case,

Laurent did not advocate a lengthy continuance when discussing the

motion with the judge and prosecutor and he did not push for a

longer continuance when the government suggested a short one.

Sanctions aside, Laurent argues that the district court

should have instructed the jury that it could draw an adverse

inference from the destruction of the video.4 He had proposed the

following instruction, which the court did not give:

Evidence has been heard that the
prosecution and its agents at one time
possessed a videotape of the alleged drug sale
occurring on November 17, 2006.

You may assume that such evidence would
have been unfavorable to the prosecution only
if you find by a preponderance of the evidence
that:
(1) The prosecution and its
agents negligently destroyed or

4
The heading of the argument in Laurent's brief suggests that
he is attacking the failure of the district court to allow an
inference based on the delayed disclosure rather than the erasure
of the tape; but, as this is neither the instruction sought in the
district court nor the error urged below the heading, we ignore
this variation.

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 caused the evidence to be
destroyed; or
(2) The prosecution and its
agents caused the evidence to be
destroyed in bad faith.

The government says that this claim is subject only to

plain error review because no objection was made after the court

charged the jury. Compare Fed. R. Crim. P. 30(d) (requiring

objection "before the jury retires to deliberate" or else plain

error review applies), with Fed. R. Civ. P. 51(b)(2), (c) (allowing

objection before closing arguments and jury instructions to

preserve appellate rights). We bypass the government's waiver

argument because the refusal to give the charge was not error at

all.

A "spoliation" instruction, allowing an adverse

inference, is commonly appropriate in both civil and criminal cases

where there is evidence from which a reasonable jury might conclude

that evidence favorable to one side was destroyed by the other. 4

L. Sand et al., Modern Federal Jury Instructions § 75.01

(instruction 75-7), at 75-16 to -18 (2010). The burden is upon the

party seeking the instruction to establish such evidence. 4 Sand

et al., supra, § 75.01, at 75-18; United States v. Lopez-Lopez, 282

F.3d 1, 18 (1st Cir.) ("[A] defendant is not entitled to an

instruction on a defense when the evidence in the record does not

support that defense."), cert. denied, 536 U.S. 949 (2002).

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 In general, the instruction usually makes sense only

where the evidence permits a finding of bad faith destruction;

ordinarily, negligent destruction would not support the logical

inference that the evidence was favorable to the defendant. 4 Sand

et al., supra, § 75.01, at 75-17. But the case law is not uniform

in the culpability needed for the instruction5 and, anyway, unusual

circumstances or even other policies might warrant exceptions.

Consider, for example, negligent destruction of a particular piece

of evidence likely to be exculpatory or routine destruction of a

class of such evidence--neither variation being present here.

In all events, above all else an instruction must make

sense in the context of the evidence, and no adverse-inference

instruction would make sense here. The routine erasure of a video

surveillance tape by the Manchester Police Department after much

5
E.g., Buckley v. Mukasey, 538 F.3d 306, 322-23 (4th Cir.
2008) (mere negligence not enough, intentional conduct--but not bad
faith--required); United States v. Artero, 121 F.3d 1256, 1259-60
(9th Cir. 1997) (bad faith required), cert. denied, 522 U.S. 1133
(1998); Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)
(same); Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir.
1997) (same); Gumbs v. Int'l Harvester, Inc., 718 F.2d 88, 96 (3d
Cir. 1983) (suppression of the evidence must be intentional, not
accidental); Residential Funding Corp. v. DeGeorge Fin. Corp., 306
F.3d 99, 101, 108-10 (2d Cir. 2002) (negligent destruction is
enough if other indications suggest the evidence would have favored
the party affected by the destruction). Our own decision in
Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d
214, 217-20 (1st Cir. 1982), is not entirely clear on this point.
See also Blinzler v. Marriott Int'l, 81 F.3d 1148, 1159 (1st Cir.
1996) (stating that the factfinder is "free to reject" the adverse
inference when it believes the evidence was "destroyed accidentally
or for an innocent reason").

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time had elapsed without an arrest creates no inference that the

tape was destroyed because it contained evidence favorable to the

defendant. Cf. Pimentel v. Jacobsen Fishing Co., 102 F.3d 638, 640

n.1 (1st Cir. 1996) (finding a district court's refusal to draw an

adverse inference from an inadvertent destruction of evidence to be

neither clear error nor an abuse of discretion).

Admittedly, this explanation of what happened rests on

Robles' testimony, but it was given under oath and was not

implausible. If Laurent's counsel seriously doubted the

explanation, he could have said why and pressed unequivocally for

an opportunity to conduct discovery about it. He did neither and,

given the dismissal of the count in question, his course was hardly

unreasonable: nothing suggested that the police had erased this

particular tape for any reason beyond the passage of time.

Laurent next argues that the district court should have

granted his motions to suppress--on two different grounds--the

evidence seized and Laurent's statements made upon his August 22,

2007, arrest. The first is that the arrest warrant issued on March

26, 2007, was tainted by Robles' affidavit stating that Frenchie

lived at 196 Lowell Street when in fact (Laurent says) she believed

Frenchie resided out of state and used 196 Lowell Street as a base

for drug operations.

Given Frenchie's observed access to and use of the

premises, the discrepancy appears trivial and no basis for a

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hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

Further, the arrest warrant was unnecessary and invalidating it

would not change the outcome: the arrest was amply supported by

probable cause--the observations of the August 22, 2007, offense by

several officers who collectively confirmed that Laurent was the

man observed committing that offense--and was therefore

independently valid without the need for a warrant. United States

v. Link, 238 F.3d 106, 109 (1st Cir. 2001).

Laurent's second ground for suppression rests on the

premise that the officers found the drugs in Laurent's car and not

on Laurent's person--a premise that is far from settled.6 He then

argues that the officers exceeded the bounds of their authority,

under Terry v. Ohio, 392 U.S. 1 (1968), by searching his car as

part of a mere traffic stop rather than only patting him down for

weapons. Of course, if the drugs were found on Laurent, a full

search of his person and not a mere pat down was permitted incident

to his lawful arrest. United States v. Vongkaysone, 434 F.3d 68,

75 (1st Cir.), cert. denied, 547 U.S. 1142 (2006).

Even if the drugs were found in the car and not on

Laurent's person, the car search was permitted because there was

6
The claim rests on Laurent's interpretation of an audio
recording of the arrest; but in fact, the excerpt of the audio
recording transcript does not clearly support his factual claim,
which was directly contradicted by the searching officer's
testimony that the drugs were found on Laurent's person.

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probable cause to suspect drugs would be found there, given that

officers had followed the car immediately after a drug transaction

involving Laurent and given Laurent's tendency in prior

transactions to sell crack cocaine out of a stash of multiple bags

that he had with him. Maryland v. Dyson, 527 U.S. 465, 467 (1999)

(per curiam); United States v. Lopez, 380 F.3d 538, 543-45 (1st

Cir. 2004), cert. denied, 543 U.S. 1074 (2005). "Police may search

a vehicle incident to a recent occupant's arrest . . . [if] it is

reasonable to believe the vehicle contains evidence of the offense

of arrest." Arizona v. Gant, 129 S. Ct. 1710, 1723-24 (2009).

Finally, Laurent argues that the district court erred in

determining his sentence because it relied upon incorrect factual

assumptions about crack cocaine. Based on the convictions, the

amount of drugs and Laurent's criminal history, the court found his

total offense level to be 24 and his criminal history category to

be IV, yielding a sentence range of 77 to 96 months. The sentence

imposed was in the middle of the range. Laurent does not now claim

that the range was incorrectly calculated.

Rather, Laurent requested a lower sentence, arguing among

other things that the court should downward depart to mitigate the

powder cocaine/crack cocaine sentencing disparity under the

guidelines. In refusing this request, the sentencing judge said--

in comments now assailed by Laurent--that crack cocaine is "more

devious," "more addictive," "more dangerous," "more destructive,"

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and "more devastating to society than powder cocaine" and that

therefore crack cocaine distribution offenses are at "a higher

culpability level."

On this appeal, Laurent claims that in Kimbrough v.

United States, 552 U.S. 85, 97-98 (2007), the Supreme Court

recognized these facts as disproved, and he asserts that the

Justice Department supports legislation to "completely eliminate

the sentencing disparity between crack cocaine and powder cocaine,"

e.g., Unfairness in Federal Cocaine Sentencing: Is It Time to Crack

the 100 to 1 Disparity: Hearing Before the Subcomm. on Crime,

Terrorism, & Homeland Sec. of the H. Comm. on the Judiciary, 111th

Cong. 28 (2009) (statement of Lanny A. Breuer, Assistant Att'y

Gen., Criminal Division, U.S. Department of Justice).

Kimbrough took note of the extreme sentencing disparity

then existing under the guidelines and held that a district court

may depart downward based on policy disagreement with the

guidelines' disparity, but the Court did not require a departure or

a variance. 552 U.S. at 91, 101; accord Spears v. United States,

129 S. Ct. 840, 843-44 (2009) (per curiam); United States v.

Gibbons, 553 F.3d 40, 46 (1st Cir. 2009). The district court was

aware of its option to depart downward on that basis, but declined

to exercise it.

Further, the disparity on which Kimbrough cast doubt was

the then-applicable crack-powder sentencing disparity that was

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particularly extreme, see 552 U.S. at 91, and subsequent amendments

to the guidelines shrank that disparity by reducing the offense

levels for crack cocaine offenses, U.S.S.G. app. C, amend. 706

(Supp. Nov. 1, 2009). Laurent benefited from those reductions

because his sentencing range was determined by the revised

guidelines.

Neither Kimbrough nor the Sentencing Commission has

declared that no sentencing disparity can be justified; and

Congress and the Commission continue to believe some disparity is

justified by differences in the two drugs' addictiveness,

propensity to involve weapons or injury, and association with

higher levels of crime. Kimbrough, 552 U.S. at 98-99, 105; U.S.

Sentencing Comm'n, Report to the Congress: Cocaine and Federal

Sentencing Policy 32, 62 (May 2007). That the Justice Department

may favor a change in legislation does not alter the present law.

Affirmed.

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