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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