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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