United States v. Brassard

United States Court of Appeals
For the First Circuit
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No. 97-1885

UNITED STATES OF AMERICA,

Appellee,

v.

KENNETH W. BRASSARD,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, U.S. District Judge]

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Before

Boudin, Stahl, and Lynch,
Circuit Judges.

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Peter F. Kuntz, by appointment of the court, for appellant.
Kenneth W. Brassard pro se.
Kathleen A. Felton, Attorney, Criminal Division, U.S. Department
of Justice, with whom Margaret E. Curran, United States Attorney, and
Richard W. Rose, Assistant U.S. Attorney, were on brief, for appellee.

____________________

May 12, 2000
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 LYNCH, Circuit Judge. Following a jury trial, Kenneth W.

Brassard was convicted of attempted possession with intent to

distribute cocaine, see 21 U.S.C. §§ 841(a)(1), 846, and use of a

firearm during and in relation to a drug trafficking offense, see 18

U.S.C. § 924(c)(1). He was sentenced to consecutive terms of 5 years

imprisonment, as well as four years of supervised release. His appeal

alleges various and numerous errors by the district court at trial and

sentencing, none of which has merit. Consequently, we affirm.

I.

The government says that Brassard was caught in a

straightforward reverse sting operation; Brassard says he was

entrapped. Each side presented its version of events to the jury, an

outline of which follows.

Brassard owned a janitorial services company that had

contracts to clean several Burger King franchises in southern New

England. Seeking additional contracts, in June 1995, he went to speak

to Ronald Rego, the manager of a Burger King. Unbeknownst to Brassard,

Rego was an informant for the Providence Police. Rego testified that

Brassard, in order to get a contract, offered him a kickback, which he

refused. He then testified that, after he mentioned to Brassard that

he also worked at a Spanish nightclub, Brassard asked him if he knew

anyone "in the business," meaning the drug business. Rego testified

further that Brassard pestered him until Rego put him in contact with

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a drug dealer. In fact, the person with whom Rego put Brassard in

contact was a detective with the Providence Police.

Claiming entrapment, Brassard testified that Rego pressured

him into finding buyers for his drugs, and Brassard, desperate for work

after losing two accounts and having his car mysteriously ruined,

feigned interest so that Rego would give him a cleaning contract.

Finally, Brassard says, he agreed to a plan in which he would buy

cocaine provided that Rego would take the drugs from him and sell them

himself. Rego, Brassard said, coached him on how to act like a drug

dealer and told him to bring a gun to the drug purchase. Rego was

motivated, Brassard alleged, by a deal he had with the Providence

Police to recoup a percentage of moneys forfeited as a result of his

tips.

In January 1996, Rego's handler, Detective Frank DellaVentura

of the Providence Police, gave Detective Freddy Rocha, an undercover

narcotics officer, Brassard's phone number. Rocha was to pose as a

drug dealer named Raul. DellaVentura said that Brassard was expecting

"Raul" to call him about a drug deal. After a few conversations in

which Rocha and Brassard discussed the quantity and price of the drugs,

as well as, allegedly, Brassard's past history as a drug dealer,

Brassard agreed to purchase a kilogram of cocaine from Rocha for

$18,000. Brassard was to place a down payment of $5000, with the

remainder secured by Brassard's mobile home as collateral. The

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conversations between Rocha and Brassard were recorded. Brassard and

Rego arranged to meet at the Marriott Hotel, in Providence, Rhode

Island, on January 26, 1996. After the exchange of cash for cocaine

was made in a hotel bathroom, Brassard was arrested as he attempted to

leave. A loaded handgun was found on him.

II.

Brassard, through his attorney and pro se, raises seven

grounds for appeal.

1. Discovery

Brassard says that the district court erred when it

conditioned further discovery of information as to promises,

inducements, or rewards made to the informant Rego on the calling of

the informant as a witness at trial. General information had been

provided before trial. Brassard says that, if he had received the

additional information before trial, he would not have had to call Rego

as a witness, a witness who was clearly more favorable to the

government. This amounts, he says, to a violation of Brady v.

Maryland, 373 U.S. 83 (1963). The government says that it turned over

all relevant information a month before trial, including the total

amount paid to Rego from prior closed cases, and that the district

court ordered more specific disclosures (the precise amounts paid to

Rego in each case) in sufficient time for the defense to make use of

them at trial.

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 We review for abuse of discretion, see United States v.

Josleyn, 99 F.3d 1182, 1196 (1st Cir. 1996), and there was none.

Production was ordered in adequate time for the information to be used

effectively by the defense at trial. We reject the argument that the

late production of more detailed evidence, if late it was, forced the

defense to call the informant Rego as a witness, or that it caused

prejudice. See Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999);

Josleyn, 99 F.3d at 1196.

2. Government's Opening

Brassard says that the district court should have granted his

motion for a mistrial after the government, in its opening argument,

made one impermissible reference to inadmissible hearsay evidence. We

review for abuse of discretion. See United States v. Sepulveda, 15

F.3d 1161, 1184 (1st Cir. 1993). Brassard objected to the prosecutor's

statement, "Now the Defendant asked the informant if he knew where the

Defendant could purchase a large quantity of cocaine. As I already

told you, unbeknownst to the Defendant, however, the informant had been

employed by the Government on several prior occasions." The objection

was based on the prosecution's assertion that it did not intend to call

the informant Rego as a witness. The hearsay statement contradicted

Brassard's version of who introduced the topic of drugs, and the

question of who first introduced the topic of drugs was pertinent to

the entrapment defense. In response to the objection, the trial

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prosecutor argued that the information could be introduced without

calling Rego as a witness. The district court disagreed and sustained

the objection. Brassard then turned down the court's offer of a

curative instruction and, instead, moved for a mistrial. The judge

denied the motion. The government now acknowledges that the prosecutor

erred in making the statement, but says that the error was harmless.

The district court judge did not abuse his discretion. The

offending remark was brief, the judge had told the jury that counsel's

statement was not evidence, the judge offered a curative instruction,

and it is likely that, coming when it did, the remark had no effect.

As noted in United States v. Brandon, 17 F.3d 409, 446 (1st Cir. 1994),

"[t]he level of prejudice, if any, was not sufficiently significant to

overturn the judge's decision to accept the defendant['s] tactical

choice to forgo more appropriate methods of addressing the potential

prejudice in favor of the unrealistic and unnecessary solution of a

dismissal or a new trial."

3. Tape Recordings

Brassard, pro se, says that the tape recordings and

transcripts of conversations between him and the undercover agent were

impermissibly admitted because no foundation was laid, because the

first tape was incomplete, and because the tapes were not properly

authenticated. We review for abuse of discretion. See United States

v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986). In his testimony,

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Detective Rocha, who made the recordings and transcripts, laid proper

foundation and made proper authentication of the tapes and the

transcripts, explaining how the first minute was irreparably damaged

while he was making copies of the tapes. See United States v. Doyon,

194 F.3d 207, 212-13 (1st Cir. 1999). While the initial moments of one

of the tapes were destroyed, that did not make that tape inadmissible.

See id. Further, there was ample cross-examination of Detective Rocha

on the substance of the conversation that took place during the missing

portion of the tape to allow the jury to evaluate for itself the

content and importance of that part as to both the prosecution's and

the defense's cases. See id.

4. Questioning of Informant

Brassard says that the district court erred when it allowed

the government, over his objection, to ask the informant certain

questions, which, he contends, elicited inadmissible hearsay and

violated the Constitution's Confrontation Clause. See U.S. Const.

amend. VI. He challenges, in particular, Rego's testimony that his

Burger King district manager, Gary Poulin, "blew right up" when he

heard that Rego was considering Brassard for a cleaning contract, as

well as Rego's explanation of why Poulin reacted that way (which

included the statement "I guess they [i.e., Burger King] had a problem

. . . about drugs"). The government's questioning did not elicit

hearsay because the testimony was not offered for its truth but to show

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that Rego had a reason not to hire Brassard and decided so quickly.

Further, there are no Confrontation Clause issues because Poulin, the

declarant, later testified at trial. See United States v. Palow, 777

F.2d 52, 57 (1st Cir. 1985).

5. Cross-examination of Brassard

Brassard says that the court erred, in violation of Federal

Rule of Evidence 608(b), when it allowed the government to cross-

examine him and question two Burger King employees regarding Brassard's

prior employment history with Burger King, particularly the reasons for

Burger King's termination of its contract with Brassard's company.1

Brassard made no objection to this line of questioning at trial and so

review is for plain error. See United States v. Conley, 186 F.3d 7, 15

(1st Cir. 1999). This questioning was not improper impeachment in

violation of Rule 608(b) because Brassard's prior employment history

with Burger King was not a specific instance of conduct for the purpose

of attacking his credibility, nor was the questioning about a

collateral unrelated matter. The questioning was relevant to rebut

Brassard's entrapment defense: the evidence made it clear that Brassard

1 Rule 608(b) states, in pertinent part:

Specific instances of the conduct of a witness, for the purpose
of attacking or supporting the witness' credibility, other than
conviction of a crime as provided in rule 609, may not be proved
by extrinsic evidence.

Fed. R. Evid. 608(b).

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knew he would not get a Burger King contract, thereby making it more

likely that Brassard was the one who initiated the drug-dealing

conversation.

6. Sentencing

Brassard says that the district court erred in the

computation of his offense level for sentencing because he "lack[ed]

the resources to buy as agreed." Thus, pointing to the last sentence

of application note 12 of § 2D1.1 of the United States Sentencing

Guidelines, he claims that he should have been treated like a seller

who "was not reasonably capable of providing[] the agreed-upon quantity

of the controlled substance," and the court should have "exclude[d]

from the offense level determination the amount of the controlled

substance that . . . he . . . was not reasonably capable" of

purchasing. U.S.S.G. § 2D1.1, application note 12.

There was no error in sentencing. Brassard agreed and

intended to purchase one kilogram of cocaine. Application note 12 of

the Sentencing Guidelines, § 2D1.1, specifies that, "in a reverse

sting, the agreed-upon quantity of the controlled substance would more

accurately reflect the scale of the offense because the amount actually

delivered is controlled by the government, not by the defendant." The

last sentence of application note 12, relied on by Brassard and quoted

above, which deals with a defendant selling drugs, clearly does not

apply. See United States v. Gomez, 103 F.3d 249, 252-53 (2d Cir.

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1997). See generally United States v. Williams, 109 F.3d 502, 511-12

(8th Cir. 1997) (noting that courts applied the last sentence of the

pre-1995 version of application note 12 to reverse stings, but not

deciding whether the same should be done after the 1995 amendments,

which, inter alia, added specific language concerning reverse stings).

7. Ineffective Assistance of Counsel

Brassard, pro se, says that his trial counsel was

ineffective. This claim is premature and inappropriate to hear on

direct appeal "[s]ince the existing record does not enable reliable

appellate review." United States v. Ademaj, 170 F.3d 58, 64 (1st

Cir.), cert. denied, 120 S. Ct. 206 (1999).

III.

For these reasons, we affirm the judgment and sentence of the

district court.

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