United States Court of Appeals
For the First Circuit
No. 95-1826
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD MARSHALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Lynch, Circuit Judge,
Aldrich and Bownes, Senior Circuit Judges.
Gordon D. Fox, with whom David A. Cooper and Cooper & Sanchez
were on brief, for appellant.
Craig N. Moore, Assistant United States Attorney, with whom
Sheldon Whitehouse, United States Attorney, and Zechariah Chafee,
Assistant United States Attorney, were on brief, for appellee.
March 31, 1997
LYNCH, Circuit Judge. The Providence police
LYNCH, Circuit Judge.
arrested Richard Marshall and another individual in a Rhode
Island hotel room for possession of heroin with intent to
distribute and conspiring to do the same. Initially,
Marshall was acquitted on the conspiracy count, but the jury
deadlocked on the possession with intent charge. A second
trial, limited to the charge of possession with intent,
resulted in a guilty verdict. Marshall was sentenced to 72
months' incarceration.
Marshall argues on appeal that his conviction was
brought about by a series of errors: the district court's
denial of his motion to suppress, its failure to make the
police produce a tape recorder and tape which may or may not
have been in the hotel room, and its limitation of cross
examination; a DEA agent's inconsistent testimony before the
grand jury and at trial; and improper statements by the
prosecutor in his closing argument. We reject these claims
and affirm the conviction. The issue which merits the most
discussion is the contention about the "missing evidence."
I.
We outline the facts only as necessary to set the
framework for the issues, because Marshall does not challenge
the overall sufficiency of the evidence. To the extent
Marshall challenges the sufficiency of the evidence to
support the trial judge's determination against him on the
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motion to suppress, the evidence is described in the light
most favorable to the government. United States v.
Hernandez, 1997 WL 109200, *1 (1st Cir. Mar. 17, 1997).
On the morning of November 30, 1994, a Providence
police lieutenant received a phone call from the manager of
the Day's Hotel in Providence. The manager reported that he
suspected there was drug activity in Room 312 involving a
Richard Marshall and explained the reasons for his
suspicions. The federal Drug Enforcement Administration
("DEA") was brought into the case. The officers did a
background check on Richard Marshall and came up with a
criminal record and a photograph. They drove to the hotel,
where the manager confirmed there had been a heavy flow of
traffic in and out of Marshall's room, identified the
photograph as being of Marshall, and said Marshall had listed
his car as a Mercedes Benz on the hotel registration card.
While the officers were in the lot looking for the Mercedes,
Marshall appeared. The officers identified themselves and
asked if they could speak with him. Marshall agreed, and
when they said there had been complaints about the activity
in his room, he said he had "his girl" in the room.
The officers asked which was his car, and Marshall
pointed to a Toyota, which had a different license plate
number than the one he had listed on the registration card.
The officers asked permission to look in the car; Marshall
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agreed, and they searched the car but found no drugs. When
asked, Marshall denied ever having been arrested, but when
shown his arrest record, started to chuckle.
The officers asked Marshall if he minded if they
went to his room. He said he did not mind and repeated that
his girl was there. They all went up to the room. Although
Marshall had his room key, he knocked on the door before
opening it.
There was no woman in the room. There was,
however, a man, Thomas Dantzler, soon to become a co-
defendant. In addition, there was a paper bag protruding
from between the mattress and the box springs of one of the
beds. The bag contained almost 200 grams of heroin, with a
street value of about $26,000.
II.
We address Marshall's claims seriatim.
Exculpatory Evidence Claim
Marshall asserts that he had a micro-cassette
recorder, switched to the "on" position, in the room at the
time of his arrest, that the tape captured what happened in
the room both before and during the arrival of the police,
and that the tape would exculpate him. It would prove
exculpatory in at least two senses, he submits: it would
show that he and Dantzler were in fact talking about rock
concert promotions, not drug dealing, and it would tend to
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support his version of the facts -- which differs radically
from the officers' version -- relevant to his Fourth
Amendment claims. There is some room for skepticism:
whatever his conversation with Dantzler, the drugs were in
his room, and on the motion to suppress, the court found that
he had consented to the officers' request to enter his room
before they entered the room. Nonetheless, the government is
obligated to produce exculpatory evidence to a defendant.
Brady v. Maryland, 373 U.S. 83 (1963).
We set the factual stage. Marshall testified that
he recorded his conversation with Dantzler about a concert
they were promoting and that he left the tape recorder
running when he left the hotel room to go to the parking lot.
This was done, he said, to keep track of whether Dantzler
used his telephone. He says the recorder would still have
been running when he returned to the room and that one of the
detectives picked it up and made a remark about it.
The officers who were present in Marshall's hotel
room tell a different story. DEA Agent Mansolillo and
Detective Cross both testified that they did not see a tape
recorder in the room. Detective Lauro indicated that he saw
a "narrow" "electronic device" in the room, which he thought
"might have been a tape recorder." Detective Lauro denied
picking it up or saying anything about it. The fourth
officer, Detective Gerstmeyer, though cross-examined at some
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length by defense counsel, was never asked whether he had
seen a tape recorder. The officers did seize some small
electronic equipment (two beepers, two portable phones, and a
small calculator), but none of them remembered seizing a tape
recorder.
Agent Mansolillo took control of the drugs and
other seized evidence, but unfortunately did not prepare an
inventory. Later, both the prosecutor and defense counsel
examined that evidence and did not find a tape recorder or
tape. The court asked the prosecutor whether he had
specifically questioned the officers on the existence of the
recorder; he replied that he had not. The court requested
that the prosecutor do so. The prosecutor did check, but
with only two of the four officers. The court instructed the
prosecutor to go back and check with the other two officers;
the prosecutor failed to do so, but defense counsel did not
pursue the issue any further. The judge stated that he could
not require the government to produce something which it said
it did not have. Defense counsel did cross-examine the
officers about the tape recorder and argued the missing
evidence theory to the jury.
Marshall's exculpatory evidence argument has two
predicates: that the recorder and tape existed and that the
contents of the tape were exculpatory. His claim flounders.
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Marshall does not argue that the government did
possess the tape recorder and tape and destroyed it in bad
faith. Cf. Arizona v. Youngblood, 488 U.S. 51 (1988). He
does not even argue that the government removed the tape
recorder and tape from the hotel room. He simply says that
the recorder was there, the government agents were aware of
it, the agents were the ones who seized the evidence, and the
tape should have been produced.
United States v. Femia, 9 F.3d 990 (1st Cir. 1993),
which the government cites as dispositive, does not directly
address the issue here. In Femia, there was no dispute over
whether certain tape recordings existed; the issue was the
consequences of the government's inadvertent destruction of
the tapes.
The government also cites United States v. Pedraza,
27 F.3d 1515 (10th Cir. 1994), which is more pertinent.
There the defendants claimed that a government informant had
taped certain calls and that the government had failed to
produce the tape recordings of the calls. Id. at 1526-27.
The court concluded that the defendants "have presented
insufficient evidence that the government either failed to
turn over 'missing tapes,' or that it destroyed them in bad
faith. The fact of the matter is, [defendants] have failed
to produce any convincing evidence that these tapes ever
existed." Id. at 1527. The defendants' claim was based on
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an equivocal statement from the informant that he attempted
to record all the calls.
Like the court in Pedraza, we think the defendant
here bore the initial burden of persuading the district court
that there was reason to believe the recorder and tape
existed. He did not do so. Absent a rare case in which the
government may be in a better position than the defendant to
disprove the existence of evidence claimed to be exculpatory,
there is no unfairness in placing the burden on the
defendant. It is difficult for the government to disprove
the existence of something and easy for defendants to claim
that something existed and was exculpatory but that the
government failed to preserve it.
Placing the initial burden on the defendant is also
consistent with the general law in the area. Even where it
is undisputed that "missing evidence" exists, it is the
defendant's burden to show that the evidence is material,
that is, that "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).
Defendants also bear a two-part burden to show a
constitutional violation when the government fails to
preserve evidence on their behalf. California v. Trombetta,
467 U.S. 479 (1984) (breath alcohol test). The "missing
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evidence" must possess an "exculpatory value that was
apparent before the evidence was destroyed" and must be "of
such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means."
Id. at 489; see also Femia, 9 F.3d at 993. In Arizona v.
Youngblood, the Court imposed a third burden on a defendant
where the potentially exculpatory evidence has been
destroyed: that of showing the government acted in bad faith
in destroying the evidence. 488 U.S. at 58. Under this
precedent, absent some unusual situation, the initial burden
is on the defendant to show the evidence existed. That
burden was not satisfied here.
The related evidentiary claim that the district
court improperly limited the cross-examination of Detective
Lauro, as beyond the scope of direct, is without merit.
Fourth Amendment Claims
Marshall makes two Fourth Amendment arguments: (1)
that he did not consent to have the police enter his room,
and therefore all evidence that came from the room was seized
illegally, and (2) that he was under de facto arrest. Both
contentions require that Marshall's version of the facts be
accepted and the government's version rejected. The district
court's factual determinations depended in large part on whom
the court believed, as the testimony of the witnesses painted
two very different scenarios. The district court disbelieved
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Marshall's version. Factual findings by the judge may not be
reversed unless clearly erroneous. United States v.
Cleveland, 1997 WL 61397, *7 (1st Cir. Feb. 18, 1997). There
can be no clear error where factual findings turn on the
credibility of the witnesses who appear before the judge.
United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990).
Defendant having consented, there is no Fourth Amendment
issue regarding the seized evidence. United States v.
Zapata, 18 F.3d 971 (1st Cir. 1994).
The district court also disbelieved Marshall's
testimony on which he relies for the de facto arrest theory.
There being no error in the finding that Marshall consented
to the officers' request to enter his room, the district
court's conclusion that there was no de facto arrest is
hardly clear error.
For the same reasons, we uphold the denial of the
motion to suppress the drugs. The trial judge chose to
believe the testimony of the officers, who provided a
sufficient predicate.
Motion to Suppress Marshall's Statements.
Marshall argues that the court abused its
discretion in refusing to hear his motion to suppress
statements he made before the drugs were found in his room.
The district court found that Marshall had waived this motion
by failing to make it in a timely fashion. We agree.
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Marshall filed the motion to suppress statements
two months after the date the motions were due. Marshall
also did not object to the statements when they were
introduced into evidence. Because Marshall failed properly
to raise the issue in the district court, we do not consider
it. United States v. Nunez, 19 F.3d 719 (1st Cir. 1994). We
add that the motion is premised on Marshall's argument that
he did not give consent to enter his room and, as a result,
he was in custody and should have been informed of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). Thus, even
had there not been waiver, the argument would have failed
because the court determined the consent issue against
Marshall.
Grand Jury Testimony
The testimony given by DEA Agent Mansolillo varied
slightly at trial from the testimony he had given before the
grand jury about exactly where the bag of drugs was found and
about the sequence of actions by a Providence police
lieutenant who was in the room. The agent was thoroughly
cross-examined on the point. It appears that this is an
instance of confusion or mistake in the agent's grand jury
testimony, and there is nothing in the record before us to
suggest perjury. The dispute about where the drugs were
found in the room was largely immaterial to the indictment:
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whether the drugs were under the mattress or not does not
undermine the charge of possession with intent to distribute.
Even if there were an error in the grand jury
process, and we do not suggest there was one, defendant had a
fair trial, and the verdict renders any error at the
preliminary stage harmless now. United States v. Mechanik,
475 U.S. 66, 72-73 (1986).
Prosecutor's Closing Argument
To understand Marshall's objection to the
prosecutor's summation, the procedural history of the case
must be recalled. This is Marshall's second trial; in the
first trial, he was acquitted of a charge of conspiracy to
distribute drugs.
Marshall says that the prosecutor improperly
accused him of a conspiracy in the face of an acquittal, that
the prosecutor relied on facts not in evidence, and that the
prosecutor improperly vouched for a witness. The first two
points are related.
While the prosecutor never used the word
"conspiracy," and never referred to the prior trial or
charges, Marshall says that he did so in essence with the
following argument:
I submit to you that the two of them were
working together and this is what
happened. That the drugs were flown in
from Chicago that day.
. . . .
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The defendant met Dantzler, the other man
who brought the drugs in from Chicago.
And they set up together in that room and
the plan, I submit to you, was for them,
for Marshall to be the middleman for the
sale of those drugs, the wholesale of
those drugs to people in Providence.
Marshall relies on United States v. McBride, 862
F.2d 1316 (8th Cir. 1988), where the Eighth Circuit upheld
the trial court's discretionary ruling awarding a new trial
due to three trial errors. One of the errors involved a
statement made by a prosecutor in final argument which
appeared to refer to counts previously dismissed and to
conflict with the evidence. Id. at 1318. Marshall's
argument is not frivolous, but, on balance, we think the
prosecution did not exceed the bounds. The presence of
Dantzler in the room and the quantity of drugs fairly support
the "with intent to distribute" portion of the possession
charge.
The prosecutor's words suggested, we think, a
permissible inference from the evidence produced at trial,
and were not a reference to the conspiracy charge. The
statement was within the allowable scope of argument. United
States v. Ovalle-Marquez, 36 F.3d 212 (1st Cir. 1994). Even
if the prosecutor's remarks were an improper veiled reference
to the conspiracy charge, they were not sufficiently
egregious to warrant a reversal of the verdict.
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The argument about improperly vouching for a
witness is based on three portions of the prosecution's
closing:
Mr. Marshall, in effect, has said by
telling the version he is saying, he, in
effect, has said to you, the police are
not telling you the truth. That they
have come in here and taken the oath
about what happened, and they haven't
told you the truth under oath.
. . . .
They say, I submit to you, they have told
the story the way it truly
unfolded . . . .
. . . .
So, I ask you in choosing between these
versions think carefully about what the
police could have done if these men,
Steven Cross, Detective Lauro, Detective
Gerstmeyer, Detective Mansolillo had been
people who would deliberately come in
here and tell you the truth. Yes, you
will hear undoubtedly in summation that
Detective Mansolillo made a mistake in
the Grand Jury. People make mistakes,
and he corrected it here. All right.
Defendant did not object to what he now attacks as witness
vouching, and so our review in this context is for plain
error. United States v. Grabiec, 96 F.3d 549, 550 (1st Cir.
1996); United States v. Sepulveda, 15 F.3d 1161, 1187-88 (1st
Cir. 1993). These first two comments do not, we think,
amount to improper vouching. United States v. Cruz-Kuilan,
75 F.3d 59, 62 (1st Cir. 1996) (holding that it is not
vouching for prosecutor to say that jury should come to
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believe on the evidence that the events occurred the way the
government's witnesses said they did).
The last statement is simply too garbled to be
vouching. We assume what the prosecutor meant to say was
that the Providence police would not permit its officers to
deliberately tell lies. He said, as best we can tell, the
opposite. Defendant has no complaint. Even if the remarks
were inappropriate, an inappropriate comment is not a
reversible error unless it is likely to have affected the
outcome of the trial. United States v. Cartagena-
Carrasquillo, 70 F.3d 706, 713 (1st Cir. 1995). These
comments did not likely affect the outcome of the trial.
It is an oft-heard complaint that the prosecutor is
putting his personal endorsement on the scale. Of course he
should not do so, but there are two sides to this. Not every
factual recitation in the prosecutor's argument must start
with a personal disclaimer. It is one thing to emphasize
personal endorsement. It is another for the prosecutor to
refer to the evidence in factual form as he goes along
without constant qualification. The line, of course, may
sometimes be close. But an excellent test is whether counsel
contemporaneously thinks the line has been crossed, and
objects, which, in turn, enables the court to instruct the
jury. In the absence of such objections, plain error review
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is called for. There is no plain error here. See Grabiec,
96 F.3d at 550.
The conviction is affirmed.
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