United States v. Brimage

United States Court of Appeals
For the First Circuit

Nos. 96-1269, 96-1455, 96-1998, 96-1999

UNITED STATES OF AMERICA,
Appellee,

v.

FRANK BRIMAGE and TRACY ROSS,
Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]

Before
Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Frances S. Cohen, with whom Michael D. Vhay, C. Dylan Sanders and

Hill & Barlow PC were on brief, for appellant Tracy Ross.

Peter B. Krupp, with whom Lurie & Krupp LLP was on brief, for

appellant Frank Brimage.

James F. Lang, Assistant United States Attorney, with whom Donald

K. Stern, United States Attorney, was on brief, for appellee.

June 9, 1997

LYNCH, Circuit Judge. A sting operation in the gun
LYNCH, Circuit Judge.

trade involving a government informant resulted in the arrest

of Frank Brimage and Tracy Ross. Brimage was convicted of

being a felon in possession of a firearm and ammunition;

Ross, of being a felon in possession of ammunition, both in

violation of 18 U.S.C. 922(g)(1). Brimage was sentenced to

more than 11 years in prison; Ross to more than 8 years in

prison.

The primary argument they make on appeal is that a

federal agent acted in bad faith in monitoring but not

recording their conversations during the sting (thus not

preserving conversations said to be exculpatory) and that

such bad faith requires dismissal of the charges. They also

argue that there was error in not requiring the government to

disclose prior investigative reports involving the government

informant, and that certain other evidence was Brady material

which should have been disclosed. Ross argues in addition

that he should have been granted a new trial based on newly

discovered exculpatory evidence and that the district court

erroneously concluded it did not have discretion to depart

downward to make him eligible for a residential drug

rehabilitation program. Both defendants are ably

represented, but the record reveals no such errors and we

affirm.

I.

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This weapons transaction unfolded in a Boston

neighborhood which had been plagued with drive-by shootings

and murders. Freddy Pena, a supplier of both guns and drugs,

decided to lessen his potential criminal liability -- on

account of pending state cocaine charges and threatened

federal firearms charges -- by accepting an offer extended by

Special Agent Daniel Campbell of the Bureau of Alcohol,

Tobacco, and Firearms (the "ATF") to become an informant.

To compensate Pena for his initial efforts as an

informant, the federal authorities intervened and arranged

for a reduction in Pena's state charges, and they never

brought the threatened federal firearms charge. Thereafter,

he earned cash for his efforts, and was paid $600 for this

particular sting.

This sadly common urban tale unfolded in January of

1995. Frank Brimage then had a considerable criminal record,

including commitments for rape, armed robbery, and assault

with a deadly weapon. Tracy Ross had a relatively minor

prior criminal record. He had been a high school basketball

star who won a scholarship to college, but apparently flunked

out. After this, he worked intermittently, and ultimately

descended into heroin addiction. According to Ross, Brimage

was his dealer.

Brimage usually hung out next to a liquor store on

Blue Hill Avenue in Boston. Pena approached him there on

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January 16, 1995 and asked him if he had any guns to sell.

Brimage replied that he had a .32 caliber handgun and a .380

caliber handgun but was not going to sell them. Pena

reported the conversation to his ATF contact, Campbell.

Campbell told Pena to ask Brimage if he wanted to participate

in an armed robbery of a drug dealer. Pena asked Brimage the

next day, saying that he needed "two guys and two guns."

Brimage responded "[t]hat's me." Ross then joined them.

Pena and Brimage continued discussing the robbery; Ross

indicated that he wanted to participate and asked how much

money he would get out of it. None of these conversations

were recorded or monitored by the ATF.

Pena told the ATF agent that Brimage and Ross were

willing to commit the robbery on January 19. On the

appointed day, Agent Campbell met Pena and took him to the

police station. Pena was strip-searched, wired with a

transmitter, given a car, and told where to go and what to

do. Pena was kept under surveillance by three mobile units,

including one carrying Agent Campbell, who monitored the

conversations from Pena's transmitter on an ATF portable

radio. Two Boston Police Detectives were also in the

unmarked vehicle with Campbell.

Pena drove to the vicinity of the liquor store on

Blue Hill Avenue to pick up Brimage and Ross. Brimage told

Pena, in a conversation overheard by two officers, that they

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had to go to Greenville Street to get the guns. Before doing

that, Brimage went into a store and emerged with a bag. Ross

and Brimage got into the car and drove to Greenville Street.

In an overheard conversation, Brimage said the bag contained

tape.

At Greenville Street, Brimage got out and went into

a building. While he was gone, Ross again asked how the

money would be divided. Pena told him to ask Brimage. When

Brimage returned, Pena drove to a large parking lot in a

shopping center where a Toys'R'Us was located, as the ATF

agent had previously directed. En route, Pena talked about

how the drug dealer would not resist so they would not have

to shoot him. At the shopping center, Pena got out of the

car and walked alone into the store, ostensibly to meet

someone who had a key to the drug dealer's apartment

building.

On signal, the police teams surrounded the car. On

the floor of the front passenger's side, where Brimage had

been seated, the police found a .380 caliber semi-automatic

pistol, loaded with six rounds of ammunition. On the floor

of the rear passenger side, where Ross had been seated, the

ATF agent found a .32 caliber revolver, loaded with five

rounds, in a clear plastic bag. There were no fingerprints

on the guns. On the rear seat was a white plastic bag with

two rolls of duct tape. Brimage and Ross were arrested by

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the Boston Police. Throughout these events on January 19,

Agent Campbell monitored but did not record Pena's

conversations with the two defendants.

II.

Failure To Record Wire Transmissions

Defendants advance the theory that the ATF

deliberately failed to record Pena's initial solicitation of

their participation in the robbery and the circumstances of

the sting, in a bad faith effort to avoid the creation or

preservation of exculpatory evidence. From this they argue

that: (1) the government is obligated not to act in bad

faith in its decisions as to which conversations to record

(and monitor); (2) that the appropriate remedy for a bad

faith failure to record is dismissal of the charges; (3) that

the district court was obligated to hold an evidentiary

hearing; and (4) that the affidavits defendants submitted

supported findings that the government acted in bad faith and

that the "lost" evidence was exculpatory and irreplaceable.

The government responds that it has no obligations

whatsoever to record and thus "create" evidence. It says

that the application of the bad faith test is limited to

failure to preserve already existing evidence in the

government's possession. The government argues that the

doctrines announced in California v. Trombetta, 467 U.S. 479

(1984), and Arizona v. Youngblood, 488 U.S. 51 (1988),

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requiring the preservation of existing evidence, should be

taken no further. In any event, the government says, the

defendants' allegations do not rise to the level of bad faith

under the test this court used in United States v. Femia, 9

F.3d 990 (1st Cir. 1993), in the aftermath of Trombetta and

Youngblood. Femia, 9 F.3d at 993-95.

The government is surely correct that the decision

not to record a conversation is categorically different from

the failure by police to maintain the breath samples of a

drunk driving defendant, as was the case in Trombetta, or the

failure to preserve semen samples in a sexual assault case,

as happened in Youngblood. Those cases raise issues of

destruction of evidence closer to those involved in Femia,

which concerned the destruction of recorded conversations.

For the purposes of the Jencks Act, 18 U.S.C. 3500, we have

already recognized such a distinction, holding that the Act,

which requires the production of all statements by government

witnesses relating to the substance of their testimony, does

not require the government to record all aspects of

interviews with witnesses, United States v. Lieberman, 608

F.2d 889, 897 (1st Cir. 1979), or always to take notes,

Campbell v. United States, 296 F.2d 527, 531-32 (1st Cir.

1961).

At the same time it is not particularly helpful to

think of the issue as broadly as the government frames it:

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that there is absolutely no duty on the part of the

government to "create" evidence. At issue here is the

government's decision not to "create" independent

verification evidence in the form of recordings and instead

to rely on the memory of witnesses and their testimony about

what was said, and we limit our inquiry accordingly.

The breadth of the defendants' line of argument

poses its own problems. It is, of course, easy for a

defendant to raise a claim that an unrecorded conversation

should have been recorded. Even if the recording of the

conversation would have inculpated, not exonerated him, a

defendant may get some benefit from the government's failure

to record by raising the argument and flagging that issue for

the jury.

The government is quite correct to point to another

problem with the defendants' argument. There is a need by

law enforcement personnel for considerable flexibility in how

they go about their investigations, and courts should not

intrude into this area. That interest is somewhat lessened,

but not eliminated here, by evidence that the ATF may have

violated its own somewhat ambiguous regulations in deciding

not to record the sting operation or the initial contact.1

1. The pertinent ATF policy required "all undercover
contacts by . . . confidential informants" to be "supported
by electronic surveillance monitoring/recording in order to
enhance special agent/officer/confidential informant safety,
as well as to collect evidence in the investigation."

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The government's interests may, however, be thought to cut

another way in this matter. As this court recently noted in

rejecting a Jencks Act challenge to the practice of

government agents not to take notes or record interviews with

government witnesses:

By adopting a "what we don't create can't
come back to haunt us" approach,
prosecutors demean their primary mission:
to see that justice is done. . . . By
and large, the legitimate interests of
law enforcement will be better served by
using recording equipment and/or taking
accurate notes than by playing hide-and-
seek.

United States v. Houlihan, 92 F.3d 1271, 1289 (1st Cir.

1996).

The issue is whether the fair trial rights of the

defendants have somehow been violated by the failure to

record. Some situations may raise concerns about whether the

government is putting the due process rights of defendants at

risk. Here, of the six persons who heard the conversations

and could testify to them, four were on the government

payroll (the three officers and the informant) and the

remaining two, the defendants, would have had to waive their

Fifth Amendment right to remain silent in order to testify to

their versions of the conversations. However, that

situation, absent a good deal more, is not in itself enough

to raise due process concerns.

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Given the vastly different fact patterns in which

this issue may arise, we see no reason to adopt the

government's position that a decision by law enforcement

officials not to record key conversations (to be relied on in

the prosecution) between a defendant and a confidential

informant may never be probed to determine if the decision

was made in bad faith.

Neither do we adopt the mirror rule that such a

test is always appropriate, as defendants would have us do.

Instead we turn to what we said once in a case raising a

similar claim:

Perhaps there may be a case where
selective recording presents a reviewing
court with constitutional concerns. We
need not speculate on this score,
however, for this is surely not such a
case.

United States v. Chaudhry, 850 F. 2d 851, 857 (1st Cir. 1988)

(rejecting due process claim of selective recording where

defendant did not assert government acted in bad faith).

Nothing about the circumstances of this case or in

defendants' meager proffer comes close to raising concerns

that Agent Campbell's decision not to record was made in bad

faith. Brimage submitted an affidavit, in which he made no

claim that the statements attributed to him were false but

said only that "The statements that I made during my

conversations with Freddy Pena, if taken in context, are much

more innocuous than the statements . . . attributed to me out

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of context . . . ." Ross submitted an affidavit from counsel

also suggesting that the statements by her client should be

understood in context. Both counsel took advantage of the

lack of context and argued to the jury the issue of the

government's failure to record. Their proffer has quite a

distance yet to go before it raises the spectre of bad faith.

Defendants rely heavily on another argument: the

allegedly implausible nature of Agent Campbell's articulated

reasons for not recording. Defendants largely ignore

Campbell's testimony that his squad usually monitored but did

not record sting operations and that the primary reason for

doing even that was to protect the confidential informant,

not to create evidence. Agent Campbell testified before

trial that he did not record the conversations here because

this was a joint state-federal operation and he believed the

recordings would be inadmissible in state court.2

At trial, Agent Campbell gave a somewhat different

reason for not recording: "I didn't think I would have to

rely on anything that was said in order to convict the both

suspects [sic]." While the responses were characterized by

the district court as "lame," they are not inconsistent and

2. The dispute between the parties as to whether such
recordings are admissible in state court is largely
irrelevant. One cannot say that the agent's understanding
was plainly wrong, see Commonwealth v. Jarabek, 424 N.E.2d

491, 493 (Mass. 1981), that he should have known it was
wrong, and thus that it was reasonable to think he had some
other nefarious motive.

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do not show bad faith. In fact, Agent Campbell's assessment

of the case may have been correct: the car was clean when

Agent Campbell gave it to Pena to use in the sting, Campbell

then monitored Pena's use of the car, and guns and ammunition

were found on the floor of the car where each of the

defendants had been sitting. The agent's testimony does not

mandate an inference of bad faith.

The claim that the district court was obligated, on

this showing, to hold an evidentiary hearing on the issue of

bad faith is without merit. Such decisions are within the

discretion of the district court, United States v. Calderon,

77 F.3d 6, 9 (1st Cir. 1996), and there was no abuse here.

Prior Investigative Reports

Brimage and Ross argue that the government's prior

investigative reports should have been disclosed to them as

they would have demonstrated the informant's modus operandi.

This information might, they say,3 have shown that, in prior

stings, Pena attributed to others the same incriminating

comments he now attributes to them. This, in turn, might

have shown that Pena was confused about who said what when.

Defendants also argue that the reports might have shown that

Pena had an opportunity to plant weapons and that he knew he

could successfully attribute incriminating remarks to others

3. Defendants have reshaped their arguments somewhat on
appeal. While there may be something to the government's
waiver argument, the same result is reached on the merits.

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if he was not being recorded. By not having the reports,

they say, they were deprived of their Sixth Amendment right

to cross-examine Pena effectively.

Although the trial judge preliminarily disagreed

that the reports were discoverable exculpatory material

within the terms of Brady v. Maryland, 373 U.S. 83 (1963),

she did, at the defendants' request, review the reports in

camera before trial. Judge Saris concluded that they

contained no exculpatory information. The defendants at

trial raised for the first time the argument that the reports

were Jencks Act material. Judge Saris again reviewed the

reports and again ruled they were not exculpatory and were

not Jencks Act material. In fact, she found that the reports

tended to buttress Pena's testimony.

Our review of these determinations is for abuse of

discretion. United States v. Femia, 57 F.3d 43, 45 (1st

Cir. 1995) (Jencks Act material); United States v. Perkins,

926 F.2d 1271, 1276 (1st Cir. 1991) (Brady material). The

prosection vigorously disputes that these reports are Jencks

Act material because the reports involved investigations

other than the one in this case. We need not resolve that

argument. This case does not provide the occasion to explore

the parameters of the Jencks Act requirement that statements

be produced "which relate[] to the subject matter as to which

the witness has testified." 18 U.S.C. 3500(b). Like the

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district court, we have reviewed the reports submitted in

camera. We readily hold that the conclusions drawn by the

trial judge were not an abuse of discretion.

The Motions for New Trial

1. The Victoria Pena Evidence

Defendants argue from the premise that the

impeachment of Freddy Pena was key to the defense, despite

the fact that the firearms and ammunition were found

virtually at their feet. Even accepting the premise, the

defense acknowledges that it knew at trial that Pena had been

arrested in 1989 and charged in state court with a cocaine

trafficking count, that the trafficking charge was reduced to

a possession charge, and that Pena was sentenced to time

served.

What defendants did not know, they say, was that

the charge was reduced because Pena's sister, Victoria Pena,

had worked as an informant for the state police in a case

involving another drug dealer, Jose Calderon. In January

1996, four months after the conviction, Brimage sought a new

trial based on the government's failure to disclose this

information. The district court held that the government had

not suppressed the information within the meaning of United

States v. Osorio, 929 F.2d 753 (1st Cir. 1991), and that the

evidence was not material in the sense of requiring a new

trial.

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The denial of the motion for a new trial is

reviewed for a manifest abuse of discretion. United States

v. Tibolt, 72 F.3d 965, 972 (1st Cir. 1995). There was no

such abuse. We cannot say that this evidence "would so

undermine the government's case as to give rise to a

'reasonable' probability of acquittal on retrial." Id.

Defendants say that the Victoria Pena evidence

would have permitted them to pursue two different lines of

examination: that Pena was an incorrigible drug and firearms

recidivist and that Pena lied when he testified at trial that

his sister Victoria had never dealt drugs out of their

mother's home.

A Brady violation occurs when "(1) the prosection

. . . suppress[es] or withhold[s] evidence, (2) which is

favorable, and (3) material to the defense." United States

v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991). We bypass the

Osorio issue of whether the government had this information

and suppressed it and go directly to the third prong of the

Brady analysis. We agree with the district court that the

evidence is not material and our confidence in the verdict is

not undermined by the fact that the defense lacked this

information.

Pena's character, if not unblemished before cross-

examination, was thoroughly and ably sullied in cross-

examination. Two pages of the district court's order denying

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the motion for a new trial were devoted to descriptions of

the impeachment of Pena. His characteristic devotion to

drugs and guns was explored. As to the "lie" about his

sister, Pena testified only that she had never sold drugs out

of her mother's home, and none of the new information is to

the contrary: it only shows that she worked as an undercover

informant for the state police.

The premise of the entire argument -- that the case

turned on the impeachment of Pena -- is itself flawed. There

are the telltale guns and ammunition: the most likely

explanation was that the defendants were in possession of

them.

2. Ross' Motion for New Trial

One month after the jury verdict, Ross filed a

motion for a new trial based on newly discovered evidence: a

statement by Michael Holmes, Brimage's cellmate after the

arrest.

The district court heard evidence and found that

soon after Brimage was arrested:

Brimage told Mr. Holmes that he (Brimage)
had been "set-up"; that Ross had only
been along for the ride as a "drug
tester"; and that Ross' high bail was
hard to understand, because Ross had had
"nothing to do with it." In a later
conversation, Brimage told Mr. Holmes
that Ross was "in the back seat all high"
and didn't know what was going on; and
that he (Brimage) would tell the court
that Ross had nothing to do with it.

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It is worth observing that Holmes is the son of Ross'

fiancee.

This claim is subject to the same review for

manifest abuse of discretion as the other new trial motion

and comes to the same end. The district court found, and we

agree, that Ross failed to be diligent in attempting to

secure Holmes' testimony before the trial ended. Ross

himself knew of the alleged conversation between Brimage and

Holmes within a month or two of the arrest and while Holmes

was still in jail and thus reachable. In all events, it is

unlikely that this new evidence would have resulted in an

acquittal. Ross twice asked what his share of the take would

be, and a gun and ammunition were found virtually under his

feet.

Ross' Sentencing Argument

Ross says that he is in need of drug treatment;

that the guidelines authorize a downward departure, based on

a likelihood of rehabilitation, to permit a defendant to

enter a residential Bureau of Prisons drug treatment program

that is only open to those within 36 months of release; that

the district court misunderstood its authority to make such a

downward departure when it sentenced him to 97 months; and

that the case should be remanded for resentencing.

Ross and the government go through the usual

dispute as to how to characterize the issue, with the hopes

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of persuading us that the district court did or did not make

an error of law. United States v. Saldana, 109 F.3d 100,

102-03 (1st Cir. 1997).

The question of whether the guidelines authorize a

downward departure to permit a defendant to enter a

residential drug treatment program is a thicket which we

describe briefly but do not enter. In pragmatic terms, there

is now only one residential drug treatment program, available

at 34 sites, in the federal Bureau of Prisons system. There

are many more inmates who need treatment than there are beds

available in this residential program. The Bureau of Prisons

has decided its program is best suited for those within 36

months of release. Here, Ross' guidelines range was 110 to

137 months imprisonment. He could not be immediately

eligiblefortheprogramunlessthedistrictcourt departeddownward.

The legal argument is put in these terms. Ross

claims the district court had the authority to depart

downward pursuant to 18 U.S.C. 3553(a)(2)(D), which directs

the sentencing court to consider the need for "educational or

vocational training, medical care, or other correctional

treatment . . . ." The government counters that the

guidelines categorically prohibit departures based on drug

dependence. U.S.S.G. 5H1.4.

The circuits are split on this issue. Some have

concluded that, because drug rehabilitation presupposes drug

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dependence, the guidelines prohibit any departures to

facilitate drug rehabilitation. United States v. Ziegler, 1

F.3d 1044, 1049 (10th Cir. 1993); United States v. Martin,

938 F.2d 162, 163-64 (9th Cir. 1991); United States v. Pharr,

916 F.2d 129, 133 (3d Cir. 1990). Other circuits have

concluded that, while the guidelines prohibit downward

departures due to drug dependence per se, they do not

prohibit departures based on a defendant's potential to be

rehabilitated. United States v. Maier, 975 F.2d 944, 947-48

(2d Cir. 1992); United States v. Williams, 948 F.2d 706, 710

(11th Cir. 1991). We need not resolve the legal issue.

Looking at the totality of the record, United

States v. Grandmaison, 77 F.3d 555, 561 (1st Cir. 1996), we

understand the district court to have decided that, in light

of specific facts about Ross, it would not exercise any

discretion it might have to authorize a downward departure.

Ross had twice before failed to complete drug rehabilitation

programs. As the court told Ross' counsel:

I have less sanguine feelings than you do
about the recidivism, particularly since
here's a guy who panned out of a program
one time, who is facing trial and then
does it a second time. That worries me
about his ability to comply with the
rules of the program.

Later the court ruled:

I do not think that I'm going to
downwardly depart on the ground of the
likelihood of rehabilitation. I often
say that people make their bed, they lie

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in it, and all I have on the record,
despite the best of intentions, is that
he went through two drug programs and
they didn't work out.

The trial court is in the best position to make such a

discretionary judgment. That discretionary decision by the

trial court is not subject to our review.

To complete the picture, we note that the trial

court did recommend to the Bureau of Prisons that Ross be

admitted to an alternative 600-hour drug rehabilitation

program while in prison.

Affirmed.

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