United States v. Garza

United States Court of Appeals
For the First Circuit
________________
No. 04-2400

UNITED STATES OF AMERICA,

Appellee,

v.

VICTOR GARZA,

Defendant, Appellant.
_____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

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

________________________

Before
Boudin, Chief Judge,
Lipez, Circuit Judge,
and Schwarzer,* Senior District Judge.
____________________

Jeffrey S. Levin, Assistant Federal Public Defender,
Federal Defender Office, for appellant.
Mark E. Howard, Assistant United States Attorney, with
whom Thomas P. Colantuono, United States Attorney, was on brief for
appellee.
_______________

January 24, 2006

*
Of the Northern District of California, sitting by
designation.
 SCHWARZER, Senior District Judge. Victor Garza appeals

his conviction on two counts of distribution of crack cocaine. At

trial, he claimed to have been a victim of mistaken identity,

contending that it was his uncle Alejandro who participated in the

drug deals for which he was convicted, not Garza. The jury

rejected the claim and convicted Garza. On appeal Garza raises

three contentions: that he was denied due process by reason of the

state’s destruction of the drugs and tape recordings which were

evidence of the drug deals; that the district court erred in

admitting a transcript of the lost tapes; and that the statute of

limitations had run before Garza was brought to trial. Finding

none of the contentions to have merit, we affirm the conviction.

I. DUE PROCESS VIOLATION

The drug transactions underlying Garza’s convictions were

"controlled buys" organized and arranged by Sergeant Robert Quinn,

a narcotics officer with the New Hampshire State Police, with the

help of an informant. These buys took place in 1996. Garza was

not apprehended until 2004.

The evidence collected from these buys consisted of the

drugs purchased, as well as a tape recording of a telephone

conversation between the informant and the drug seller, and a

second tape recording of a brief conversation during the exchange

of drugs for money in the informant’s apartment while Sergeant

Quinn was in the apartment. The drugs and the tapes were stored in

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the State Police Forensic Laboratory. Pursuant to its regular

practice, the laboratory from time to time sent out a list of

evidence items in its possession that might be disposed of, either

because a case has been closed, or is stale, or has been abandoned.

Sergeant Quinn regularly received this list from the laboratory and

until 2002 directed the lab to retain the evidence from Garza’s

case. In 2002, when the case was again listed, Sergeant Quinn

authorized destruction of the drugs. The laboratory then applied

for a court order authorizing destruction. The order was issued

and the drugs were destroyed. Unbeknownst to Quinn, the laboratory

also destroyed the tape recordings. Two years later Garza was

apprehended and the government proceeded to trial on the charges.

Garza moved to dismiss the charges, arguing that the

destruction of the evidence violated his due process rights. After

an evidentiary hearing, the district court denied the motion. It

found that the evidence was only potentially useful, not materially

exculpatory, to Garza and, that while the destruction was

negligent, there was “little suggestion of bad faith.”

On appeal, Garza contends that the district court erred

in finding no bad faith. He argues that Sergeant Quinn’s

deliberate destruction of evidence he knew to be relevant to a

still open case, contrary to the usual procedure, compels a finding

of bad faith. We review the district court’s fact findings for

clear error and its legal conclusions de novo. See United States

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v. Gallant, 25 F.3d 36, 39 (1st Cir. 1994) (applying clearly

erroneous standard to district court's conclusions regarding bad

faith).

In California v. Trombetta, 467 U.S. 479 (1984), the

Supreme Court held that for destruction or loss of evidence to

constitute a constitutional violation, "the evidence must both

possess an exculpatory value that was apparent before the evidence

was destroyed, and be of such a nature that the defendant would be

unable to obtain comparable evidence by other reasonably available

means." Id. at 489. In Arizona v. Youngblood, 488 U.S. 51 (1988),

the Court further held that where lost or destroyed evidence is

deemed to be only potentially exculpatory, as opposed to apparently

exculpatory, the defendant must show that the evidence was

destroyed in bad faith. Id. at 58.

Garza does not challenge the district court’s

determination that the drugs and tapes were only potentially

exculpatory, not apparently exculpatory. But he maintains that

under the circumstances of this case, Sergeant Quinn's

authorization of destruction of the evidence amounts to bad faith.

While the evidence was destroyed as a result of Quinn’s

conscious and deliberate decision, intentionality is not enough to

show bad faith. Gallant, 25 F.3d at 39 n.2. Even if, as found by

the district court, Sergeant Quinn’s actions were “short-sighted and

even negligent,” this does not satisfy the requirement of bad faith.

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See United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (holding

that the "district court clearly erred in finding a due process

violation because [the evidence] was destroyed due to the

government’s gross negligence, not bad faith"). Garza must show

“independent evidence that the [government] was somehow improperly

motivated.” Gallant, 25 F.3d at 39 n.2. Sergeant Quinn's apparent

desire to free up space in the laboratory was not an improper

motivation. Moreover, that the evidence was destroyed in the course

of implementing routine procedures militates against a finding of

bad faith. See United States v. Lewis, 40 F.3d 1325, 1340 (1st Cir.

1994) (finding no bad faith in routine destruction of surveillance

tapes); United States v. Arra, 630 F.2d 836, 849 (1st Cir. 1980)

(holding that erasure of Coast Guard tapes was done in good faith

as part of a routine that was not related to the case). Here, Quinn

did not single out the evidence in Garza’s case, but authorized its

destruction only after the laboratory had repeatedly placed the case

on a list of old cases for the purpose of purging the storage

facility. While Garza argues that it was not “normal” procedure to

destroy evidence in cases that were still open, there is no evidence

that Quinn was motivated by malice or bad faith in authorizing the

destruction. Nor does the fact that the evidence was destroyed

before trial support a finding of bad faith. See Illinois v.

Fisher, 540 U.S. 544, 548 (2004) (finding no due process violation

in destruction of evidence even though defendant had requested the

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evidence prior to becoming a fugitive); Trombetta, 467 U.S. at 482-

83, 488 (finding no bad faith where evidence was destroyed before

defendants were charged); Femia, 9 F.3d at 991-92, 994 (finding no

bad faith where evidence was destroyed even though defendant had

been charged and remained a fugitive); Picariello, 568 F.2d 222,

227-28 (finding no bad faith where evidence was destroyed four

months prior to trial).

Garza seeks to avoid a bad faith hurdle by arguing that

the destruction of the evidence constitutes a violation of Brady v.

Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S.

97 (1976). His premise is that Youngblood and Trombetta apply to

situations where the police authorize destruction of evidence, as

opposed to authorization by a prosecutor. Whenever the prosecutor

authorizes destruction of evidence, he contends, Brady applies,

requiring no showing of bad faith. Here, Garza argues, because

Sergeant Quinn may have spoken to a prosecutor who may have

authorized destruction of the evidence, due process was violated

regardless of whether there was bad faith.

Garza misapprehends the distinction between the Brady and

Youngblood lines of cases. That distinction rests on the nature of

the evidence and whether or not the evidence is still in existence,

not who authorized destruction of the evidence. "Brady and its

progeny address exculpatory evidence still in the government's

possession. Youngblood . . . govern[s] cases in which the

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government no longer possesses the disputed evidence." Femia,

9 F.3d at 993.

For a Brady violation to occur, the evidence must be not

only in existence but also materially exculpatory. Agurs, 427 U.S.

at 105-06. Here, the district court found that the evidence was,

at best, only potentially exculpatory, and Garza has not challenged

that determination.

We conclude that the district court did not err in denying

Garza’s motion to dismiss.

II. READING OF THE TRANSCRIPTS

At trial the government offered the transcripts of the

tape recordings. Garza objected for lack of authentication. The

district court did not receive the transcripts into evidence but

permitted the government to read them to the jury, holding that they

constituted past recollection recorded admissible under Federal Rule

of Evidence 803(5). While Garza argues that the district court

erred, we need not address this issue for the government defends

the ruling on a different ground.

The government argues that the transcripts were admissible

as party admissions under Rule 801(d)(2)(A), exempting from the

hearsay rule a party’s own statement when offered against that

party. The government argues here that there was sufficient

evidence to establish, for admissibility purposes, that the

transcript included Garza's admissions. While this rationale was

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not addressed by the district court, this court may affirm the

admission of evidence on a ground that the district court did not

consider. See United States v. Cabrera-Polo, 376 F.3d 29, 31 (1st

Cir. 2004).

Admitting the transcripts on the ground that they contain

statements by Garza is not inconsistent with trying Garza's defense

that he was not involved in the drug deals. That is because the

evidentiary requirement for testing the admissibility of evidence

differs from that governing criminal liability. "The inquiry made

by a court concerned with these matters is not whether the proponent

of the evidence wins or loses his case on the merits, but whether

the evidentiary Rules have been satisfied. Thus, the evidentiary

standard is unrelated to the burden of proof on the substantive

issues." Bourjaily v. United States, 483 U.S. 171, 175 (1987).

Questions of admissibility are decided by the court, Fed. R. Evid.

104(a), using the preponderance of the evidence standard.

Bourjaily, 483 U.S. at 175-76. So long as there is a preponderance

of evidence indicating that it was Garza’s voice on the tapes, the

transcripts could be treated as containing his admission. See

United States v. Newton, 891 F.2d 944, 947 (1st Cir. 1989) (finding

sufficient circumstantial evidence to support admission of a

document as a party admission where the defendant denied being the

author of the document); see also United States v. Lang, 364 F.3d

1210, 1222-23 (10th Cir. 2004) ("the government need only prove by

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a preponderance of the evidence that [the defendant] made the

statements in question"), vacated, 125 S. Ct. 986, reinstated

405 F.3d 1060, 1061 (10th Cir. 2005). Here, both the informant and

Sergeant Quinn identified Garza as the individual who sold the

drugs. Both testified to the phone call to Garza and the placement

of a recording device in the bedroom where the drug transaction took

place. These facts sufficed to support a finding by a preponderance

of the evidence that Garza made the transcribed statements.

Even if the district court erred in allowing the

transcripts to be read to the jury, the error was harmless. "A

non-constitutional evidentiary error is harmless (and, therefore,

does not require a new trial) so long as it is highly probable that

the error did not influence the verdict." United States v. Piper,

298 F.3d 47, 56 (1st Cir. 2002). It is highly unlikely that the

reading of the transcripts influenced the verdict. The transcripts

merely described the setup and execution of a drug deal between a

confidential informant and a drug seller. Garza’s defense was not

that the call and drug deal did not occur but that they involved

someone else. The court instructed the jury that the transcripts

were not evidence to be considered in deciding that issue. Garza

was not prejudiced by the reading of the transcript to the jury.

III. STATUTE OF LIMITATIONS

In an additional pro se brief, Garza contends that because

the drug sales occurred in 1996, more than five years before his

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trial, the prosecution was barred by the statute of limitations.

Title 18 U.S.C. § 3282(a) divests a federal court of jurisdiction

over a non-capital offense committed more than five years before an

indictment is found or an information instituted. Garza was

indicted on July 10, 1996, less than one month after the drug

transactions. At all times prior to Garza’s arrest and trial, the

indictment remained pending.1

Garza’s contention that there was no sufficient indictment

is belied by the record, which includes the indictment. If there

were any defects in the indictment, the failure to raise an

objection before trial constitutes a waiver. Fed. R. Crim. P.

12(b)(2); United States v. Rodriguez-Marrero, 390 F.3d 1, 11-12 (1st

Cir. 2004).

CONCLUSION

For the reasons stated, the conviction and judgment are

1
As Garza's pro se brief broadly characterizes this delay as
a violation of his Fifth and Sixth Amendment rights, we consider
whether this delay violated Garza's Sixth Amendment right to a
speedy trial. From statements made at the sentencing hearing, it
appears that Garza was in Mexico for seven and a half of the eight
years between his indictment and arrest. The government contacted
Garza's family in New Hampshire over the years, unsuccessfully
trying to find Garza. Garza was arrested at the first practical
opportunity, when he illegally re-entered the country in February
2004. After his arrest, the government acted promptly in
transferring Garza to New Hampshire and bringing this case to
trial. Under these facts, there is no showing that the government
failed to exercise diligence, and therefore no violation of Garza's
right to a speedy trial. See United States v. Casas, 356 F.3d 104,
113 (1st Cir. 2004).

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affirmed.

Affirmed.

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