United States v. Henry

United States Court of Appeals
For the First Circuit

No. 06-1530

UNITED STATES OF AMERICA,

Appellee,

v.

LEE HENRY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before
Boudin, Chief Judge
Torruella and Lynch, Circuit Judges.

John M. Thompson with whom Linda J. Thompson and Thompson &
Thompson, P.C. were on brief for appellant.
Alex J. Grant, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.

April 6, 2007
 BOUDIN, Chief Judge. Lee Henry was indicted on October

23, 2003, on four counts of distribution and possession with intent

to distribute heroin and cocaine base in violation of 21 U.S.C. §

841 (2000). The charges stemmed from controlled drug buys that

occurred on February 6 and 26 and on May 2 and 13, 2003. The

controlled drug buys were made by Carlos Ortiz, who was cooperating

with the FBI, under the supervision of FBI Special Agent Robert

Lewis.

In early 2004, prior to trial, Henry sought exculpatory

evidence from the government, and the district court ordered the

government to produce four categories of documents relating

primarily to the government's contacts with and benefits supplied

to Ortiz. Further evidence was sought in June 2004 (e.g., drug

tests and debriefing reports) and further evidence was produced.

In a July 2004 hearing the court ordered the government to give yet

further evidence to the defense.

On December 30, 2004, one business day before trial,

Henry sought to subpoena further documents from Ortiz and Agent

Lewis, with both requests asking for very broad categories of

documents including material earlier furnished.1 The district

1
For example, the Ortiz subpoena sought any record of any
aspect of Ortiz' dealings with the FBI and the U.S. Attorney's
Office; any record or evidence of Ortiz' drug dealing and use; any
record of the amount of benefits provided to Ortiz; any transcript
of any of Ortiz' testimony given in any criminal proceeding; a copy
of any statement given in connection with Ortiz' involvement in the
investigation of Henry; any record of dealing with Section 8

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court, citing delay, overbreadth and prior production, quashed the

subpoena as to Ortiz and granted only limited items demanded of

Lewis. A renewed request during trial was denied.

Trial began on January 3, 2005, and continued until

January 13, 2005. The government offered Agent Lewis and a

cooperating local law enforcement agent to testify as to the

arrangements for the buys (e.g., dates, searches of Ortiz and his

car before and after the buys, recording equipment). There was

also identification of the drugs recovered from Ortiz after each of

the transactions. Ortiz testified as to the buys themselves and

identified Henry as the seller.

The pièce de résistance was the recordings of the

February transactions from a concealed camera and audiotape device

in Ortiz' car where the February deals occurred. In the February

26 sale, the seller could be seen and heard and exchanges of money

and drugs witnessed by the jury. In a tape of a phone call also

presented to the jury, the seller answers to the name "Lee," and

the buyer refers to "Lee" throughout the various recordings.

Despite some discrepancies (e.g., the seller had a mustache and

housing authorities; all phone records from March 2001 onward; any
record of any accusation of misconduct while Ortiz served as a
confidential informant and cooperating witness; and all tax returns
during the time Ortiz was working with the FBI.

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Henry appeared clean shaven at trial), the jury could compare the

face on the video with Henry.2

The first May buy followed the same pattern but took

place outside the car, and the main taped evidence was from audio

recordings. The jury could, of course, compare voices from the

first May audio with the two February audio recordings; and, in

addition, although Henry did not testify at trial, Agent Lewis

testified that he had heard Henry speak in person in late 2003 and

that Henry's voice matched the voice on the tape.

The second May buy was also outside the car. The

government offered an audiotape of a telephone conversation between

Ortiz and someone at a cell phone number assigned to Henry

arranging to meet near a restaurant; but, because of distortions at

the noisy restaurant, the corresponding audiotape of the

transaction itself was hard to make out, although the government

sought to show fragments allegedly consistent with a drug deal.

The defense called no witnesses except for Agent Lewis

who was recalled and subject to brief examination primarily about

Ortiz' admissions of past criminal conduct. The defense did,

however, bring out Ortiz' very extensive record of past criminal

conduct, the benefits he received from the government, and alleged

2
The February 6 recording was less complete because Ortiz
partially covered up the video camera, but the audiotape was played
to the jury and still frames of the video allowed the jury to see
part of the defendant's face and the money change hands.

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deviations from standard guidelines by Lewis or other agents in

handling or compensating Ortiz.

In closing the prosecutor relied scarcely at all on Ortiz

but focused heavily on the videos for the February buys and on the

audio for the first May transaction. For the second May

transaction, the links were the telephone call arranging the

meeting and the less distinct audio-taped discussion at the

transaction site. The defense closing was an energetic kitchen-

sink collection of criticism of Ortiz, Lewis and the prosecution's

supposed failure to prove what it had promised.

The jury, after approximately five hours of deliberation,

found Henry guilty as to the first three transactions and acquitted

as to the fourth (the May 13 sale, which was the one minimally

recorded). The district court sentenced Henry to 144 months'

imprisonment. Henry has now appealed and we have pending both his

appeal from his conviction and a recent motion by Henry filed in

this court seeking a remand to permit him to file in the district

court a Rule 33 motion based on newly discovered evidence. Fed. R.

Crim. P. 33.

On this appeal, Henry wisely does not challenge the

sufficiency of the evidence against him. The first of his two sets

of arguments is directed to discovery and the main contention is

that the district court erred in quashing the eve-of-trial subpoena

to Ortiz and limiting the similar subpoena to Lewis. A second

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strand of this argument claims that alleged discovery order

violations should have led to suppression of evidence.

In federal criminal trials, defense access to government

evidence that is exculpatory or helpful in impeaching government

witnesses is governed by a set of statutory and rule-based

requirements elaborated through much doctrine. Among the most

familiar are those reflected in the Jencks Act, 18 U.S.C. § 3500,

Fed. R. Crim. P. 26.2, Fed. R. Crim. P. 16, and the Brady decision,

Brady v. Maryland, 373 U.S. 83 (1963).

In addition, but with limitations, the defense may use

subpoenas before trial to secure admissible evidence but not as a

general discovery device. Fed. R. Crim. P. 17; Nixon v. United

States, 418 U.S. 683 (1974); Bowman Dairy Co. v. United States, 341

U.S. 214, 218 (1951). The court has power to quash a subpoena that

is unreasonable or oppressive, Fed. R. Crim. P. 17(c)(2), and

review on appeal is for abuse of discretion. Nixon, 418 U.S. at

702; United States v. Lieberman, 608 F.2d 889, 904 (1st Cir. 1979).

Here, the subpoenas were not only extremely broad and

unrealistic, especially as eve-of-trial demands, but the categories

of information overlapped with prior demands for information.

Henry's briefs do not explain just what materials had been produced

by the government in response to the prior requests; but if the

earlier production had been unjustifiably deficient, the

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deficiencies should have been identified--and well before the last

working day before trial.

In addition, practically all errors relating to discovery

or the admission or exclusion of evidence require some showing of

prejudice--usually, some variant on a likelihood of a different

outcome if the error had not been made. See, e.g., United States

v. Castellini, 392 F.3d 35, 52 (1st Cir. 2004) (improperly admitted

evidence must have "likely affected the outcome of trial"). Less

is sometimes needed for constitutional error but, even there, some

prejudice ordinarily is required.3

Most of the salient material sought both in the earlier

demands by Henry and in his eve-of-trial subpoenas aimed at two

targets. Most important was material to impeach Ortiz, and

understandably so since he alone had dealt with the drug supplier.

But Ortiz was impeached by overwhelming evidence of his criminal

past and the payments to him from the government. The prosecution

relied centrally on the videos and audiotapes. The jury,

acquitting on the last transaction, showed that it placed minimal

faith in Ortiz.

3
See, e.g., Chapman v. California, 386 U.S. 18, 24 (1967)
(requiring harmlessness beyond a reasonable doubt). No-prejudice
reversals are ordinarily reserved for very rare errors so
fundamental as to be deemed "structural error"--a somewhat ill-
defined category none of whose examples approach the present case.
See Neder v. United States, 527 U.S. 1, 8 (1999) (collecting
examples).

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 The defense also sought information to show that the FBI

had mishandled Ortiz, either by sloppy procedures or by failing to

comply with various Justice Department guidelines for dealing with

confidential informants or cooperating witnesses. Some of this

information the defense received and used in evidence and in

arguing to the jury; but so far as information sought aimed to

impeach Ortiz, it was redundant; and the alleged violations were,

as we will see, not an independent basis for suppressing evidence.

Asked by us at oral argument about the apparent lack of

prejudice and the powerful taped evidence supporting the

convictions, Henry's counsel said that the defense hoped to show

that Agent Lewis had been careless and even untruthful as to prior

dealings with Ortiz. But only two examples were offered and

neither was very significant.4 Lewis was not shown to be

generally unworthy of belief, and any doubts raised about either

competence or veracity could not have seriously undermined the

video and audio evidence.

Henry argues that the limitations on discovery and the

subpoenas constituted not only an abuse of discretion by the

district court but also a violation of the Sixth Amendment, which

guarantees "criminal defendants a meaningful opportunity to present

4
First, Lewis was required to do a thorough suitability check
on Ortiz but testified at trial to lacking background information
about Ortiz. Second, Lewis testified that Ortiz told him that he
was not a substance abuser when they first met, while Ortiz stated
he told Agent Lewis that he had been involved in drugs.

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a complete defense." Holmes v. South Carolina, 126 S. Ct. 1727,

1731 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 689-90

(1986)). Just when a restriction on discovery or admission of

evidence rises to the level of a Sixth Amendment violation need not

be pursued.5 We have found nothing to indicate that the quashing

was error nor, if Henry argues that the application of Rule 17

while correct was still unconstitutional, that the requisite

prejudice existed. See United States v. Hughes, 895 F.2d 1135,

1145 n.15 (6th Cir. 1990).

Henry makes one other discovery-related argument, namely,

that the government read an early discovery order too narrowly and

that the district judge should have sanctioned the government. The

argument is not adequately developed in Henry's opening brief and

so is forfeit, Mass. Sch. of Law v. Am. Bar Ass'n, 142 F.3d 26, 43

(1st Cir. 1998). In any event, the judge supportably found that

the government's reading was reasonable.

Henry's other main claim on appeal is that "the district

court erred in admitting the evidence obtained through . . .

Ortiz's commission of federal and state crimes." This interesting

argument starts with a series of propositions: that the Attorney

General has only doubtful power to authorize acts that constitute

5
See Kyles v. Whitley, 514 U.S. 419, 434 (1995); Pennsylvania
v. Ritchie, 480 U.S. 39, 56-57 (1987); United States v. Valenzuela-
Bernal, 458 U.S. 858, 872-73 (1982); United States v. Theresius
Filippi, 918 F.2d 244, 247-48 (1st Cir. 1990); United States v.
Hoffman, 832 F.2d 1299, 1303 (1st Cir. 1987).

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crimes even in aid of criminal "sting" investigations; that the

authority to delegate this authority to others is even more

limited; and that the FBI in this case ignored numerous

restrictions in Justice Department guidelines. The remedy, Henry's

brief argues, should be suppression of evidence including the

tapes.

The government says that neither the lack of authority

nor the guideline violation claims were adequately preserved as

bases for suppression. This is quite arguably so as to the former;

the latter may have been preserved. But, by-passing waiver or

plain error requirements, we reject the exclusion claim on the

merits. Even assuming arguendo infirmities as to authority,

delegation or compliance with Justice Department guidelines,

exclusion of the evidence was not warranted in this case.

Nothing here involves evidence made unreliable by

government misconduct, so exclusion would serve only a deterrent

value--if misconduct there were--at the cost of letting an

otherwise guilty defendant go free. The Supreme Court has been

willing to pay that price in the case of evidence secured by

certain constitutional violations, although even in such instances

it has adopted a number of qualifications. See, e.g., United

States v. Leon, 468 U.S. 897, 922 (1984); Stone v. Powell, 428 U.S.

465, 493 (1976).

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 The Court has been far less ready to require exclusion

for violations of any non-constitutional rubrics. A few supposed

examples are older cases dealing with provisions designed to

protect constitutional interests. E.g., McNabb v. United States,

318 U.S. 332, 347 (1943). More recently, the Court has said that

the cases of suppression for statutory violations are "few,"

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2681 (2006); for obvious

reasons this is even more clearly true of regulations.6

Similarly, this court has said that "[t]he exclusionary

rule was not fashioned to vindicate a broad, general right to be

free of agency action not 'authorized' by law." Hensel, 699 F.2d

at 29. Judge Posner has explained why: "Exclusion confers

windfalls on the guilty and therefore, at least as a device for

enforcing nonconstitutional rules, is disfavored." United States

v. Dawson, 425 F.3d 389, 394 (7th Cir. 2005), reh'g granted on

other grounds, 434 F.3d 956, cert. denied, 127 S. Ct. 831 (2006).

There is a good deal of precedent supporting the use of

sting operations in law enforcement, including drug transactions

involving undercover agents or cooperating private persons;7 and

6
United States v. Caceres, 440 U.S. 741, 754-55 (1979) (IRS
regulations); Buntrock v. SEC, 347 F.3d 995, 999 (7th Cir. 2003)
(SEC regulations); United States v. Hensel, 699 F.2d 18, 29 (1st
Cir.), cert. denied, 461 U.S. 958 (1983) (Coast Guard regulations).

7
Hampton v. United States, 425 U.S. 484, 485 (1975) (DEA
informant arranged drug deals between defendant and government
agent); United States v. Russell, 411 U.S. 423, 425-26 (1973)

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while undercover operations can be, and have been, abused, an

exclusionary rule based on the principle that all such operations

are unlawful would be an extraordinary step.

Justice Department guidelines were not compelled by

statute, nor intended to create private rights. United States v.

Flemmi, 225 F.3d 78, 88 (1st Cir. 2000), cert. denied, 531 U.S.

1170 (2001). Henry may be right in saying that the guidelines are

underenforced, and this would be cause for concern, but that is

primarily a matter for the Justice Department or, if Congress

wishes, for its supervision.

We deny Henry's "motion for remand to permit filing of

Rule 33 motion for new trial based on newly discovered evidence."

All of the "newly discovered evidence" Henry points to would either

be used to further impeach Ortiz or Lewis or to argue for the

suppression of evidence. As we have already explained, impeachment

of Ortiz was thoroughly accomplished and suppression of evidence on

account of the way Ortiz was supervised is not appropriate.

Affirmed.

(undercover federal agent supplied drug component and purchased
drugs from defendant); Lewis v. United States, 385 U.S. 206, 207
(1966) (undercover agent purchased drugs from defendant); United
States v. Murphy, 768 F.2d 1518, 1528-29 (7th Cir. 1985), cert.
denied, 475 U.S. 1012 (1986) (approving undercover sting operation
targeting judicial misconduct by staging cases); United States v.
Monaco, 700 F.2d 577, 580-81 (10th Cir. 1983) (approving use of
cooperating witnesses working as prostitutes to obtain
information); United States v. Myers, 692 F.2d 823, 847 (2d Cir.
1982), cert. denied, 461 U.S. 961 (1983) (approving Abscam sting
operation).

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