United States v. Dumas

United States Court of Appeals
For the First Circuit

No. 99-1658

UNITED STATES,

Appellee,

v.

ROLAND MARSHALL DUMAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Gary C. Crossen, with whom Evan Georgopoulos, and Foley,
Hoag & Eliot were on brief for appellant.

Geoffrey E. Hobart, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
March 13, 2000
 BOWNES, Senior Circuit Judge. Appellant Roland

Marshall Dumas was convicted in a jury trial of conspiracy to

possess cocaine with intent to distribute, in violation of 21

U.S.C. § 846 (1988). The district court (Woodlock, J.) imposed

a sentence of 262 months imprisonment, and denied Dumas's Motion

for New Trial and Revised Motion for New Trial based on newly

discovered evidence. Dumas appeals this ruling denying his

motions for a new trial.

On appeal, Dumas presents two instances in which he

claims the district court abused its discretion in denying his

motions for a new trial, which we address seriatim. First, he

claims that the district court should have granted his motions

because the government failed to disclose allegedly exculpatory

documents relating to the impeachment of a government witness.

This witness's lack of credibility, he claims, was vital to his

entrapment defense. Second, he claims that the district court

should have granted the motions for a new trial in order to

remedy a violation of due process springing from the

government's failure to disclose, and subsequent destruction of,

notes that Dumas claims constituted exculpatory material. For

the reasons discussed below, we affirm the district court's

denial of the motions, finding no abuse of discretion.

I. Facts

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 The facts of this case are byzantine in their

complexity. We recount only those facts that are essential to

our decision. In the fall of 1993, Dumas was serving a sentence

in federal prison in Pennsylvania. At the request of the United

States Attorney's Office, the Bureau of Prisons transferred

Dumas to the Plymouth County House of Corrections ("Plymouth"),

a Massachusetts state prison facility. According to Dumas, the

United States Attorney's Office sought this transfer in order to

obtain his testimony before a federal grand jury in a public

corruption case. Dumas refused to testify, and was subsequently

held in contempt and remained incarcerated at Plymouth. This

refusal to testify, Dumas argued at trial, set in motion the

events that led to his ultimate entrapment by the government.

He claimed at trial, and continues to do so on appeal, that the

government entrapped him in order to gain additional leverage

with which to secure his grand jury testimony.

While at Plymouth, Dumas met Christopher Coyne, who

invited Dumas to share a cell with him. Coyne, unbeknownst to

Dumas, was an informant for the Drug Enforcement Agency ("DEA").

Coyne's initial investigative goal did not involve Dumas; Coyne

sought, unsuccessfully, to set up drug transactions involving

four others, and only turned his attention to Dumas after he

failed in that endeavor.

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 Dumas claims that during the time in which the two

shared a cell at Plymouth, Coyne put extraordinary pressure on

him to engage in a drug transaction. The amount of time that

the two spent in a cell together was a matter of dispute, and

one which Dumas felt was vital to his entrapment defense. DEA

Agent Steven Story testified that the two men shared a cell for

"no more than a week." Coyne, for his part, recalled that they

shared a cell for approximately two weeks. Dumas, on the other

hand, testified that he and Coyne shared a cell for nearly two

months.

Eventually, Coyne introduced Dumas to Agent Story, who

was posing as a drug dealer affiliated with Coyne. Dumas

participated in three telephone conversations with Agent Story,

and planned a drug transaction. Though the transaction never

took place, these conversations formed the basis for Dumas's

conspiracy conviction.

None of the conversations between Coyne and Dumas,

which Dumas claims constituted entrapment, were recorded.

Because of this, Dumas claims that Coyne's credibility was

crucial to his conviction. He points, inter alia, to the

closing argument of the prosecutor, who stated: "If you believe

Chris Coyne, the case is very simple."

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 Nearly two years after entry of judgment, Dumas moved

for a new trial. He did so because he had learned from a

corrections officer that, during the relevant time period, Coyne

had been placed on a "Q-5 suicide watch" at Plymouth. This

information had not been provided to the defense, although the

defense had received general information on Coyne's overall

psychiatric background. The government was aware of the suicide

watch, because it was documented in the notes of DEA Agent

Thaddeus Blazak. Apparently, Agent Blazak had spoken with

corrections officials, and had taken notes at the meeting.

Blazak had learned that Coyne had been placed on the Q-5 suicide

watch because of "relationship problems." In the course of

investigating this new revelation, Dumas also claims to have

learned definitively that he and Coyne had shared a cell for

nearly two months.

Based on this information, Dumas brought a motion for

a new trial. The government, not surprisingly, opposed this

motion. In doing so, the government contended that Coyne had

requested the suicide watch in order to be segregated from the

general population because he was afraid of Dumas. The

government, in support of this position, offered the testimony

of Agent Story, who had spoken with another informant who was

incarcerated with Coyne. The informant stated to Agent Story:

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 [T]hat he was aware that there had been some
problems surrounding Coyne backing out of
the proposed undercover transaction and that
he felt because of some heat, as he put it,
that the defendant Dumas . . . had placed on
him, that Coyne staged this incident or
staged this ruse as an attempt to get him
away from the defendant and to put him in a
safe position without actually having to ask
or request prison officials to be moved to
isolation which invariably would mean that
he had the status of being a Government
informant.

A-182. After he was informed that he would be testifying in a

hearing on Dumas's motion for a new trial, Agent Blazak shredded

certain pages from his notebook which the defense alleges

contained information relating to Dumas's case. Dumas claims

that Blazak did this despite knowing that he would have to

produce any relevant notes at this hearing.

Some pages pertaining to Dumas remained in Agent

Blazak's notebook, including those pages that documented the Q-5

suicide watch. In addition, Blazak's notes contained

information that supported Dumas's contention that Dumas and

Coyne had shared a prison cell for nearly two months. These

notes, Dumas now asserts, could have been used to impeach both

Coyne and Agent Story. In addition, Dumas claims that the

government discovered during trial that Story's testimony on the

length of time Coyne and Dumas shared a cell was erroneous, and

failed to correct it. Finally, Dumas asserts that the shredding

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of pages from Blazak's notebook constituted destruction of

evidence in violation of his Due Process rights.

II. Standard of Review

We review the district court's denial of a motion for

a new trial only for manifest abuse of discretion. See United

States v. Brimage, 115 F.3d 73, 79 (1st Cir.), cert. denied,

118 S. Ct. 321 (1997). In motions brought for a new trial based

upon newly discovered evidence of prosecutorial nondisclosure,

we accord deference to the district court's determination of

materiality. See United States v. Hahn, 17 F.3d 502, 510 (1st

Cir. 1994) ("[T]he district court's determination of the

materiality of newly discovered evidence in prosecutorial

nondisclosure cases is ordinarily accorded deference.") (quoting

United States v. Sanchez, 917 F.2d 607, 618 (1st Cir. 1990)).

III. Analysis

While Dumas states many facts, he alleges essentially

two legal claims. First, he alleges that failure to disclose

the contents of Agent Blazak's notes, which included information

on the Q-5 suicide watch and the amount of time Coyne and Dumas

shared a cell, which would constitute a Brady violation

justifying a grant of a new trial. Second, he argues that the

shredding of certain of Blazak's notes could be a violation of

Arizona v. Youngblood, 488 U.S. 51, 58-58 (1988) (holding that

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bad faith destruction of evidence constitutes a due process

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

disclosure of exculpatory evidence).

A. Substantive Standards

1. Brady

As the Supreme Court has stated: "We do not . . .

automatically require a new trial whenever a combing of the

prosecutors' files after the trial has disclosed evidence

possibly useful to the defense but not likely to have changed

the verdict . . . ." Giglio v. United States, 405 U.S. 150, 154

(1972) (internal quotation marks omitted). Instead, "[a]

finding of materiality of the evidence is required under Brady."

Id.

Evidence is material under Brady only when "there is

a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different." United States v. Bagley, 473 U.S. 667, 682 (1985)

(opinion of Blackmun, J.); see also Kyles v. Whitney, 514 U.S.

419, 433-35 (1995) (endorsing Bagley test); United States v.

Cunan, 152 F.3d 29, 34 (1st Cir. 1998) (same). This, as we

stated in Cunan, does not mean that the reviewing court must be

certain that a different result would obtain. See id. Rather,

a defendant such as Dumas may prove a Brady violation by showing

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that "the favorable evidence could reasonably be taken to put

the whole case in such a different light as to undermine

confidence in the verdict." Kyles, 514 U.S. at 435; Cunan, 152

F.3d at 34.

2. Destruction of Evidence

Part of Dumas's prayer for a new trial is based on

destruction of exculpatory evidence under Youngblood. We

examine this claim under a different standard. As we noted in

a previous case, "[T]he Supreme Court's jurisprudence divides

cases involving nondisclosure of evidence into two distinct

universes. Brady and its progeny address exculpatory evidence

that is still in the government's possession. Youngblood and

Trombetta govern cases in which the government no longer

possesses the disputed evidence." United States v. Femia, 9

F.3d 990, 993 (1st Cir. 1993). This standard, culled from

California v. Trombetta, 467 U.S. 479, 488-89 (1984), and

Youngblood, 488 U.S. at 58, establishes three hurdles. The

defendant must show that, in failing to preserve the evidence,

the government, (1) acted in bad faith when it destroyed

evidence, which (2) possessed an apparent exculpatory value and

which (3) is to some extent irreplaceable. See Femia, 9 F.3d at

993-94.

B. Application

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 1. Failure To Turn Over Evidence of the Q-5
Suicide Watch

According to Dumas, had he been able to introduce

evidence of Chris Coyne's suicide watch, the jury would have

assessed Coyne's credibility differently. Dumas suggests,

probably rightly, that in order for the jury to reject his

entrapment defense, it would have needed to find Coyne more

credible than Dumas. Evidence of psychiatric problems, he

asserts, would have called into question the reliability and

accuracy of Coyne's testimony.

As a preliminary matter, it is clear that impeachment

evidence falls within the Brady rule. See Giglio, 405 U.S. at

154. The simple fact that evidence could be used to impeach a

government witness, however, does not end the materiality

inquiry. "Impeachment evidence, even that which tends to

further undermine the credibility of the key Government witness

whose credibility has already been shaken due to extensive

cross-examination, does not create a reasonable doubt that did

not otherwise exist where that evidence is cumulative or

collateral." United States v. Shelton, 588 F.2d 1242, 1248 (9th

Cir. 1978), quoted in United States v. Sanchez, 917 F.2d 607,

618-19 (1st Cir. 1990).

The district court considered Dumas's contentions with

respect to the suicide watch in some detail. It ultimately

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concluded that the evidence would not likely have aided Dumas's

cause, in light of the explanation that would have been offered

by the government for the suicide watch. The court stated:

With respect to the question of Mr. Coyne's
placement on the Q-5 suicide watch, I start
with what seems to me to be – in the light
most favorable to the defendant – a very
contested set of circumstances about what
was really going on here. The evidence that
I have before me of record suggests that Mr.
Coyne undertook this as a self-help measure
to protect himself from being identified as
an informant and being exposed to some form
of retaliation. It is, of course, also,
consistent with a fragile psychological
construct. And there have been some
disclosures of psychological difficulties by
Mr. Coyne. But the weight of the evidence
simply does not support the proposition that
there is a sufficient basis to have a jury
find that he was put in administrative
supervision on the basis of some sort of
suicidal ideation.

. . . This much I know: That given the
state of the record now, this would not have
been exculpatory rather than inculpatory of
Mr. Dumas.

This evidence, which arguably impeaches Coyne with

respect to mental stability and his ability to recall and

perceive events accurately, does not rise to the level of

materiality required. While we recognize that impeachment

evidence, if powerful enough, could constitute grounds for a new

trial, we do not think that such is the case here. See Sanchez,

917 F.2d at 618-19.

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 In United States v. Slade, 980 F.2d 27, 29 (1st Cir.

1992) we noted, in conducting abuse of discretion review of a

motion for a new trial, that "the district court is usually in

a much better position to judge the credibility of the witnesses

and to assess the highly nuanced relationship between the

purported new evidence, and what previously transpired at trial

. . . ." We think Slade's words instructive in this case.

Therefore, mindful of the district court's superior position

from which to assess the new evidence and the credibility of the

witnesses, we are unwilling to disturb the court's careful

conclusion on this point.

2. Failure To Turn Over Evidence of the Amount
of Time Dumas and Coyne Shared a Cell

Dumas, as we have stated, argued that he was entrapped

by Coyne, a government agent. He argues on appeal that his

entrapment defense would have been successful had Dumas's

testimony about the length of time he shared a cell with Coyne

been corroborated by Brady material that should have been turned

over. This evidence, too, was considered by the district court

on the motion for a new trial. The court stated:

I turn to the question of the amount of time
that he shared the cell with Mr. Coyne.
That was the disputed issue at trial. But
was it material? Would it have made a
difference in . . . the outcome? I think
not. [Defense counsel] makes a forceful
point that it was a kind of reed from which

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 he was attempting to construct a defense,
but it was a thin reed. And the defense,
given the state of the record, was grasping
at such reeds. And this difference in the
amount of time simply wouldn't have made a
difference in the result of the case. That
really was a dispute over subsidiary and,
frankly, secondary kinds of issues that do
not provide a touchstone for the kind of
proof or evidentiary material that Bagley
and all of its progeny have required for
there to be a finding of materiality with
respect to late disclosed exculpatory
evidence . . . in the final analysis, it
would not have made a difference.

Upon careful review, we find an adequate basis for the court's

conclusion that there was not a reasonable probability that

evidence would have made a difference in the result of the

trial. We are particularly persuaded by the district court's

view of the collateral nature of the disputed evidence. This

view, to which we owe deference, see Slade, 980 F.2d at 29,

provides sufficient basis for the court's decision.

We are impressed by the fact that Dumas himself

admitted on cross-examination that Coyne did not mention a drug

transaction for some time after they began sharing a cell. The

government presses this point on appeal, noting the following

colloquy from the trial record:

Q. Christopher Coyne didn't say
anything to you about a drug deal the first
three weeks you were there; is that your
testimony?

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 A. The first three or four weeks, he
said nothing until – I think it was right
around the time I went to the Grand Jury.
Q. When was that?
A. I have no idea. It probably was –
I think I went to the Grand Jury ten days
after I was there. And about a week after I
got back, I was complaining because I was
going to get the contempt charge . . . So,
I'd say it was probably the last week of
October.

Dumas's argument for the materiality of the disputed

evidence is that Coyne pressured him into the drug transaction

over an extended period of time. The longer they shared a cell,

Dumas argues, the more time Coyne had to exert pressure. But

Dumas's own testimony undercuts this view. He admits that for

a significant proportion of the time they were together, Coyne

did not pressure him.

The district court's decision on this point is further

bolstered by the fact that the evidence goes to only one prong

of an entrapment defense. See United States v. Gifford, 17 F.3d

462, 468 (1st Cir. 1994) (affirmative defense of entrapment

includes proof of both inducement and lack of predisposition).

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Given Dumas's criminal history,1 the latter element might likely

have proven just as fatal as the former.2

3. Shredding of Agent Blazak's Notes

In order to prevail on a motion for a new trial based

on destruction of evidence, a defendant must show that the

government: (1) acted in bad faith when it destroyed evidence,

which (2) possessed an apparent exculpatory value and which (3)

is to some extent irreplaceable. See Femia, 9 F.3d at 993-94.

Dumas's argument that the government violated his due process

rights by destroying Blazak's notes calls us to split this first

prong of the analysis into two distinct inquiries. First, did

the government destroy evidence at all? Second, was that

evidence destroyed in bad faith?

1
Dumas was sentenced as career offender, a designation he
does not dispute on appeal. Even without the career offender
designation, his criminal history category, as revealed in the
Presentence Report, is Category V.
2Dumas also argues more generally that the evidence about
the length of time he and Coyne shared a cell could have
affected the verdict because it would have bolstered his own
credibility and weakened that of both Coyne and Story, and that
the entrapment defense as a whole turned on witness credibility.
But even if the disputed evidence clearly established that Coyne
and Story's recollections regarding the time period were
inaccurate and that Dumas's was accurate, it seems unlikely that
the jury would have drawn any general inference of dishonesty or
honesty from the comparison, much less that their verdict could
have turned on it.

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 With respect to the first question, the district court

found as a matter of fact that Blazak did not destroy notes that

were relevant to the instant case. The court stated:

[I]t is bad business for the Government to
fool around with integrated documents that
are going to provide the basis for
examination and they do so at their peril.
And I'm astonished that an agent with even a
couple of years of experience would treat
the notebook that he has like a game: "This
is relevant, that part isn't" and throw that
part out and keep this part.
Nevertheless, I've looked at the
notebook fairly carefully. I've looked at
the agent's testimony fairly carefully and
thought about it. And I believe that what
remains here is all that is relevant to the
Dumas case.

We share the district court's incredulity at this unquestionably

poor law enforcement practice. This does not, however, undercut

our faith in the district court's finding of fact that the

relevant materials were not excised, but were in fact produced.

With respect to the second question, the court

determined that any destruction was not in bad faith. The court

stated: "[I]f it is all that is relevant – and I find that it is

– then it does nothing more than show certain sloppy practice."

Again, we are loathe to disturb a finding based so heavily on

the credibility of witnesses. See Slade, 980 F.2d at 29.

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 The district court's findings with respect to either

the first or second question would each individually suffice to

support its denial of the motion based on destruction of

evidence. Accordingly, we refuse to disturb that decision.

4. Cumulative Effect of the New Evidence

Having found that the district court did not abuse its

discretion with respect to each piece of new evidence in

isolation, all that remains is to determine whether it abused

its discretion in failing to order a new trial due to the

cumulative effect of the errors Dumas claims. The district

court considered the cumulative effect, succinctly stating: "I

can't find that, individually or taken together, the evidentiary

materials upon which Mr. Dumas now relies would have been

sufficient to change the outcome. And for that reason, they are

not material and ultimately do not provide a basis for a new

trial." Put just as succinctly, we agree.

IV. Conclusion

For the foregoing reasons, we affirm the district

court's ruling in its entirety.

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