F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 28 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 96-1400
DONALD C. SCARBOROUGH,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 96-CR-31-M)
Richard Kent Kornfeld (Gary Lozow with him on the briefs), Isaacson,
Rosenbaum, Woods & Levy, P.C., Denver, Colorado, for the Defendant -
Appellant.
James C. Murphy, Assistant U.S. Attorney (Henry L. Solano, United States
Attorney, with him on the brief), Denver, Colorado, for the Plaintiff - Appellee.
Before EBEL, KELLY and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
Appellant Donald Scarborough (“Scarborough”) was convicted of
knowingly possessing with the intent to distribute 500 grams or more of cocaine.
He appeals the jury decision on the following grounds of alleged error by the trial
court: (1) the denial of his motion to dismiss on the basis of the government’s
untimely disclosure of exculpatory information; (2) the refusal to give a proposed
jury instruction; (3) the denial of his motion to suppress based on the asserted
lack of reliability of the narcotics canine; (4) the admission of allegedly
prejudicial evidence; and (5) the preclusion of certain testimony. We find no
reversible error.
I
The government maintained at trial that on June 16, 1994, the defendant
mailed or caused to be mailed from Denver, Colorado, an Express Mail package
containing approximately half a kilogram of cocaine to his brother Michael
Scarborough in Omaha, Nebraska. The label on the package stated that it was
from “Tony Patterson” at “1768 Billing.” In the city section of the return address,
“Aur” was crossed out and replaced by “Den, CO.” The package was addressed
to “Micheal [sic] Patterson,” “3020 Newport St.,” “Omaha, Nebr. 68112.”
Omaha postal inspectors detained the package and submitted it to a
certified narcotics-trained canine because it fit a suspicious package profile.
Pogo, the dog, alerted to the package, motivating the inspectors to obtain a
federal search warrant and open it. The package contained two items: a sealed
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telephone box, which contained cocaine, and a toy Tonka truck still in its
cardboard frame.
The postal service then conducted a controlled delivery of the package to
the delivery address, where it was accepted and signed for by Michael
Scarborough, using the name “Michael Smith.” The postal inspectors and Omaha
police obtained a no-knock search warrant for the delivery locale and, about 15
minutes after delivering the package, entered the house, found the unopened
package behind a couch and arrested Michael Scarborough.
Denver Postal Inspector Earl Winsor testified at trial that in April 1995,
prior to Donald Scarborough’s arrest, he obtained handwriting samples from the
defendant, pursuant to a federal grand jury subpoena, and fingerprinted him. The
original mailing label for the Express Mail package in which the cocaine was
found, along with defendant’s handwriting sample and fingerprint chart, were sent
to the Postal Inspection Service crime laboratory in Chicago, Illinois for analysis.
The lab found four latent prints on the label, one of which was identified as the
defendant’s left thumbprint. Defendant was arrested in January of 1996.
II
A. The Delayed Disclosure of Exculpatory Material
The government’s final witness was Roger Ball, the forensic scientist from
the Chicago lab. At the close of the government’s direct examination of Ball, the
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prosecutor inquired whether Ball had been asked “in connection with this case to
conduct any other kind of analysis.” Appellant’s Supp. App. at 226. The
following exchange ensued:
A. Yes, sir, I was.
Q. What was that?
A. I was requested by Inspector Winsor, I believe it was, to
compare the fingerprints of an additional case from Omaha to see
if I could identify any latent prints in that specific case with the
submitted prints of Donald C. Scarborough.
Q. And were you able to do that?
A. No, sir, they were not identified with that particular case.
Id. At this point the government ended its direct examination of the witness, and
the defense requested a bench conference. Apparently this was the first time
either defense or prosecution had been informed of another analysis conducted by
Ball in connection with this case. The trial judge granted a 15-minute recess so
both sides could question the witness to clarify this testimony. The recess
interview of Ball revealed that, in late 1994, Douglas Czepa of the U.S. Postal
Inspection Office in Omaha had sent the various items taken from the package
containing the cocaine, including the Tonka truck and the telephone box, to the
Chicago crime lab for a fingerprint analysis which revealed latent prints. In
March 1996, about 60 days prior to the trial of Donald Scarborough, Inspector
Winsor asked the lab to compare the latent prints found on the package’s contents
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to those of defendant. This test, conducted by a lab employee who was not a
witness at the trial, revealed that defendant’s prints did not match the latent
prints developed from the Tonka truck. The defense had not been informed of the
1994 test for prints on the items in the package containing the cocaine, the 1996
analysis showing that the latent prints developed from the Tonka truck did not
match defendant’s, or the written report regarding this negative comparison.
As a result of this revelation of exculpatory material just prior to the end of
trial, the defense moved to dismiss the case and for sanctions against the
government for violating Brady v. Maryland, 373 U.S. 83 (1963). The defense
asserted prejudice from this alleged violation based on the fact that its trial
strategy, in particular its opening statement to the jury and cross-examination of
witnesses, as well as any decision to put defendant on the stand, might have been
substantially different if this information had been disclosed earlier. The judge
denied the motion and sanctions on the grounds that any harm to the defense from
the late disclosure of the exculpatory material could be cured by cross-
examination of the witness.
In Brady, the Supreme Court stated, “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Brady, 373 U.S. at 87. We review de novo a
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claim of failure to disclose evidence in violation of Brady. United States v.
Rogers, 960 F.2d 1501, 1509 (10th Cir. 1992). Brady mandates reversal when a
failure to disclose is coupled with a finding that the evidence is “material,”
meaning 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); see United States v. Young,
45 F.3d 1405, 1408 (10th Cir. 1995). In this case, the evidence was eventually
disclosed to the defense, albeit towards the end of the trial. “This court has
previously held that Brady is not violated when the Brady material is made
available to defendants during trial.” United States v. George, 778 F.2d 556, 561
(10th Cir. 1985) (citing United States v. Behrens, 689 F.2d 154, 158 (10th Cir.
1982) and United States v. Alberico, 604 F.2d 1315, 1319 (10th Cir. 1979)). As
this court has observed, “[w]hile we strongly disapprove of delayed disclosure of
Brady materials, that alone is not always grounds for reversal. As long as
ultimate disclosure is made before it is too late for the defendant[] to make use of
any benefits of the evidence, Due Process is satisfied.” United States v. Warhop,
732 F.2d 775, 777 (10th Cir. 1984) (citation omitted) (finding disclosure of
ostensibly exculpatory report to defense during cross-examination of government
witness not Brady violation because defendant was able to use evidence).
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Following the recess, defense counsel extensively cross-examined Ball
regarding the tardily-disclosed evidence. Defense counsel also used the
exculpatory material to strong effect in his closing argument. Under these
circumstances, the fact that the material, if disclosed earlier, may have affected
the defense strategy does not mandate reversal. “We have held that, ‘the relevant
standard of materiality does not focus on the trial preparation, but instead on
whether earlier disclosure would have created a reasonable doubt of guilt that did
not otherwise exist.’” Rogers, 960 F.2d at 1511 (quoting George, 778 F.2d at
562). The late disclosure of this exculpatory information is troubling, and it
highlights the need for vigilance by prosecutors in ensuring that government
agents are informed of and respect Brady requirements. Ultimately, however,
appellant has not shown that earlier disclosure of this material would have created
any greater doubt about defendant’s guilt or affected the result of the trial. Thus,
the trial court did not err in denying the motion to dismiss.
B. Jury Instructions
Appellant claims that the trial court’s refusal to allow defendant’s proposed
jury instruction number four denied him his right to a fair trial. “Jury instructions
must be examined as a whole and a de novo standard of review is applied to
determine the propriety of an individual jury instruction to which objection was
made at the time of trial.” United States v. Mullins, 4 F.3d 898, 900 (10th Cir.
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1993) (citations omitted). A reviewing court must have “substantial doubt that
the jury was fairly guided” in order to reverse a judgment below. Id. (citation
omitted); see also United States v. Barrera-Gonzales, 952 F.2d 1269, 1271 (10th
Cir. 1992) (“[A]ppellate court must review the record as a whole to determine
whether the instruction stated the governing law and provided the jury with ample
understanding of the issues and standards applicable.”).
Proposed instruction four, as modified by the court prior to ultimately
deciding to reject it, states that “[m]omentary possession of a package containing
contraband does not in itself prove that the defendant had knowledge of the
contents of the package.” Defendant claims that in declining to give this
instruction the court failed to instruct the jury on one of his theories of defense,
and that such an omission is reversible error because the evidence supports the
theory presented in the instruction. See United States v. Felsen, 648 F.2d 681,
685-86 (10th Cir. 1981). The defendant does not dispute that the charge given to
the jury included an instruction proffered by defendant on his theory of defense.
That other instruction states:
The defendant, Donald C. Scarborough, has pleaded not guilty to
the charge contained in the indictment, and this plea of not guilty puts
in issue each of these essential elements of the offense described in the
instructions, and imposes on the government the burden of establishing
each of these elements by proof beyond a reasonable doubt.
The defendant, Donald C. Scarborough, contends that he did not
at any time knowingly possess the cocaine at issue in this case. The
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defendant further contends that he never intended to distribute the
cocaine at issue in this case, and the defendant denies that he had
knowledge of the contents of the package. 1
* * *
As used in these instructions, possession is the exercise of
dominion, control or authority over the controlled substance in question.
Appellant’s Supp. App. at 313-14. Defendant’s rejected instruction sets forth an
argument in support of an inference the jury could draw from the evidence. Cf.
United States v. Chadwick, 532 F.2d 773, 784 (1st Cir. 1976) (relationship
between extent of possessory interest and knowledge of contents is question of
inference), aff’d, 433 U.S. 1 (1977). We conclude the district court did not err in
excluding such an instruction from its charge to the jury. The charge given,
considered as a whole, correctly states the law, fairly and adequately covers the
issues presented, and defines both “possession” and “knowingly” in such a
manner as to allow the jury to draw the inference sought by the rejected
instruction; as the instructions adequately state Scarborough’s defense of
possession in factual terms and correctly instruct the jury on the law applicable to
that defense, error did not occur.
This paragraph was adapted by the trial court from defendant’s proposed instruction
1
number nine.
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C. Denial of Motion to Suppress
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Appellant challenges the district court’s denial of his motion to suppress
the cocaine on the ground that it was illegally seized. 2 In reviewing the denial of
a motion to suppress, we must accept the trial court’s findings of fact unless they
are clearly erroneous, and all the evidence is viewed in the light most favorable to
the government. United States v. Knapp, 1 F.3d 1026, 1027 (10th Cir. 1993).
According to appellant, the initial detention of the package by postal
authorities, pending Pogo’s sniff, was an illegal search and seizure under the
Fourth Amendment. The temporary detention of mail for investigative purposes
is not an unreasonable seizure when authorities have a reasonable suspicion of
criminal activity. See United States v. Van Leeuwen, 397 U.S. 249, 250 (1970).
In the present case, the package shared some of the characteristics of a profile
developed to identify narcotics packages in that it contained a handwritten label;
was going from an individual to an individual; was coming from a narcotics
source state; bore no return zip code; had a misspelled return address street;
contained a correction in the city portion of the return address; and was found to
contain a nonexistent return address street number. Scarborough argues that each
of these factors taken alone may be innocent, and they cannot be combined to
2
The government argues that appellant lacks standing to contest the seizure of this
evidence because he has no recognizable privacy interest in the contents of a package on which
his name does not appear. We need not address this issue because we find that, even assuming
that defendant does have standing, it is clear that there was no constitutional violation in either
the initial detention or subsequent search of the package.
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create reasonable suspicion. We do not agree. A combination of seemingly
independent innocent factors may create a reasonable suspicion justifying
detention for a dog sniff if the factors substantially reflect elements of a
suspicious profile. See United States v. Lux, 905 F.2d 1379, 1382 (10th Cir.
1990) (package meeting three factors from postal service’s “drug package profile”
gives authorities sufficient reasonable suspicion to subject package to drug
detection dog); cf. United States v. Williams, 726 F.2d 661, 663 (10th Cir. 1984)
(police recognition that individual’s behavior matches certain elements of drug
courier profile provides reasonable suspicion to justify stop and dog sniff of
luggage).
Appellant also challenges the government’s reliance on Pogo to obtain the
search warrant and open the package. It is undisputed that a drug sniffing dog’s
detection of contraband in itself establishes probable cause for a search warrant.
See Williams, 726 F.2d at 663 (drug sniffing dog’s alert on luggage provides
probable cause for arrest). Appellant argues, however, that Pogo’s 79% reliability
rate when working with postal inspectors, as reflected in the affidavit submitted
in support of the search warrant, as well as the absence of any details on his
training and his apparent lack of continued training, raise questions about whether
Pogo’s abilities are sufficient to create probable cause. The analysis of a properly
drafted search warrant affidavit requires only that there be a “substantial basis”
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for finding probable cause. United States v. Cusumano, 83 F.3d 1247, 1250 (10th
Cir. 1996) (en banc). The affidavit states that Pogo is certified, was trained to
alert to drug odors at the Rudy Drexler School for Canines in Omaha, and had
alerted approximately 65 times to controlled substances and contraband in four-
and-one-half years on the job. Drugs were not found five of those times -- for an
overall reliability rate of 92 percent. 3 The accuracy of the affidavit is not
challenged and, with such a success rate, we do not agree it was clear error for the
trial court to find that Pogo is a credible narcotics dog and that his alert
adequately supports the finding of probable cause.
D. Admission of Evidence
Appellant challenges the admission into evidence of nine earlier Express
Mail labels and his two driver’s licenses, claiming that any probative value of that
evidence is substantially outweighed by prejudice to the defendant. A district
court has broad discretion in balancing the probative value of evidence against its
potential prejudicial effect, and will be reversed only on a showing of abuse of
that discretion. United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir. 1991).
We find no abuse of discretion in the admission of any of these items.
3
While on specific assignment for the Omaha postal service, Pogo’s skills were utilized
approximately 24 times, resulting in 19 alerts, four of which resulted in no drugs, about a 79
percent success rate. Defendant’s argument that we should discard Pogo’s overall history of
reliability and look solely to his lower success rate in the subset related to postal investigations is
rejected because no reasons are provided as to why Pogo’s abilities might be materially affected
by working for the postal service.
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1. Admission of the Labels
Postal Inspector Czepa testified that after Michael Scarborough’s arrest he
had ordered a search for any other labels (previously pulled and filed separately
by the Omaha postal inspection office) that contained either the same address,
same street name or same names as the label of the package in which the cocaine
was found. Over defense objections, the court allowed into evidence nine
Express Mail labels dated between May 23, 1991 and November 23, 1993
retrieved from this search. The court instructed the jury that though Czepa
testified that these labels had been pulled because they were identified as part of
“something called a profile and, therefore, in some way suspicious to [the
witness],” the jury was not to consider them “as any evidence that [they] were in
fact used for packages in which cocaine or something else, a drug, was contained.
They are simply labels that were collected through this process and put in the file.
So they’re received simply for what they are, as labels out of the files.”
Appellant’s Supp. App. at 42.
Appellant tells us the admission of these nine labels was reversible error
because the labels lack any probative weight due to prosecutorial failure to link
the nine earlier labels to the label at issue, to other drug transactions or to
defendant. Appellant contends the admission is substantially prejudicial, in that it
may have led the jury to infer that Scarborough mailed drugs from Denver to
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Omaha on nine prior occasions, or that he must have mailed the Express Mail
package found to contain cocaine because he mailed the earlier packages.
Appellant’s argument is patently wrong. Beverly Mazur, a handwriting
analyst employed by the Nebraska Police Crime Lab in Omaha, testified at trial
that the “to and from sections” of the Express Mail label on the package
containing the cocaine were written by the same person who wrote the nine other
Express Mail labels. When he was arrested, defendant had in his possession two
driver’s licenses, each with his picture. One showed the name “Donald
Scarborough, Jr.” with an address at “4604 Sable St.,” “Denver CO 80239,” and
the other showed the name “Carvin Teon Scarborough” with an address at “1300
Adam St. 205,” “Denver CO 80206.” Three of the nine contested labels list
Donald Scarborough as the sender, and one lists Carvin Scarborough as the
recipient. Six of the labels, one of which was from a “Tony Patterson” (listed as
the sender on the package in question), contain the Adam Street address listed on
one of the defendant’s driver’s licenses, and another contains that same Adam
Street address with a different apartment number. Still another label contains the
Sable Street address listed on the other driver’s license.
The judge’s limiting instruction to the jury upon admitting these nine labels
into evidence mitigated any prejudice that may have arisen from improper
consideration of the labels as evidence of prior crimes, bad acts or of a modus
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operandi of engaging in suspicious mail transactions. The district judge did not
abuse his discretion in concluding that these nine labels, linked to the defendant
through his two driver’s licenses and linked to the label on the package containing
the cocaine through handwriting analysis, were crucial to establishing the identity
of the sender of the package containing the cocaine, and this circumstantial value
outweighs any potential prejudice.
2. Admission of the Driver’s Licenses
Appellant also challenges the admission into evidence of one of the two
Colorado driver’s licenses found on his person when he was arrested in January
1996. At trial, defense counsel objected to the admission of the license
containing the name “Carvin Teon Scarborough” along with defendant’s picture
on the ground that it was irrelevant because it was issued on October 10, 1992,
nineteen months prior to the date of the crime. Defense counsel stressed
admission would be inordinately prejudicial because the jury might infer from the
presence of an alias on the license that defendant had been involved in illegal
activities long before the crime in question. The court denied the objection and
also denied defendant’s request to redact the alias from the license.
Both driver’s licenses were probative of a key issue at trial, linking
defendant to the nine earlier labels and, through handwriting analysis, to the label
on the package containing the cocaine. The fact that the license with the alias
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was issued in October 1992, nineteen months before the crime in question, does
not lessen its relevance. The nine labels were mailed between May 1991 and
November 1993. Therefore, the issuance of the license with the alias was
contemporaneous with at least some of the nine labels. The district court properly
concluded that redaction of the alias name would have detracted from the
probative link between the earlier labels and the label on the package with the
cocaine, because at least one of the earlier labels contained the name “Carvin
Teon Scarborough” and another contained the address appearing on that license.
As both licenses were relevant to linking defendant to the crime, the district court
did not abuse its discretion in admitting them without redaction.
E. Preclusion of Testimony
During cross-examination of Inspector Czepa and Omaha police officer
John Neaman, the defense sought to elicit testimony that the federal charges
against Michael Scarborough had been dismissed for speedy trial violations. The
government objected on the grounds of hearsay and relevance, and the court
sustained the objections. Appellant now argues that in preventing him from
eliciting such testimony, “the district court precluded [defendant] from presenting
key evidence supporting his theory of defense, i.e. that federal agents unfairly
targeted him only after failing to successfully prosecute Michael.” Appellant’s
Br. at 35. According to appellant, the testimony is probative because it bears on
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the credibility of the government’s witnesses, and, moreover, the government
opened the door to such information by describing Michael Scarborough’s arrest
in its opening statement and alluding to it throughout the trial.
A trial court’s decision to exclude evidence is reviewed for abuse of
discretion and will be reversed only if it is manifestly erroneous. See United
States v. Simpson, 7 F.3d 186, 188 (10th Cir. 1993). Appellant has not shown
how the testimony it sought to elicit bears on defendant’s guilt or innocence and
did not establish at trial that either witness had personal knowledge of the status
of Michael Scarborough’s case. The district court acted squarely within its
discretion. We will not disturb its determination that such testimony lacked
foundation or could confuse the jury about issues that were not probative of
defendant’s guilt or innocence. Moreover, the district court was appropriately
concerned that such testimony could lead to improper argument -- i.e., that
Donald Scarborough’s innocence was linked to Michael Scarborough’s innocence,
which, in turn, was conclusively demonstrated by the dismissal of the charges
against him.
AFFIRMED.
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