UNITED STATES OF AMERICA, Aрpellee, v. LEE HENRY, Defendant, Appellant.
No. 06-1530
United States Court of Appeals For the First Circuit
April 6, 2007
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge]
Before Boudin, Chief Judge, Torruella and Lynch, Circuit Judges.
Alex J. Grant, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.
Lee Henry was indicted on October 23, 2003, on four counts of distribution and pоssession with intent to distribute heroin and cocaine base in violation of
In eаrly 2004, prior to trial, Henry sought exculpatory evidence from the government, and the district court ordered the government to produce four categories of documents relating primarily to the government‘s contacts with and benefits supplied to Ortiz. Further evidence was sought in June 2004 (e.g., drug tests and debriefing reports) and further evidence was produced. In a July 2004 hearing the court ordered the government to give yet further evidence to the defense.
On December 30, 2004, one business day before trial, Henry sought to subpoena further documents from Ortiz and Agent Lewis, with both requests asking for very broad categories of documents including material earlier furnished.1 The district
Trial began on January 3, 2005, and continued until January 13, 2005. The government offered Agеnt Lewis and a cooperating local law enforcement agent to testify as to the arrangements for the buys (e.g., dates, searches of Ortiz and his car before and after the buys, recording equipment). There was also identification of the drugs recovered from Ortiz after each of the transactions. Ortiz testified as to the buys themselves and identified Henry as the seller.
The pièce de résistance was the recordings of the February transactions from a concealed camera and audiotape device in Ortiz’ car where the February deals occurred. In the February 26 sale, the seller could be seen and heard and exchanges of money and drugs witnessed by the jury. In a tape of a phone call also presented to the jury, the seller answers to the name “Lee,” and the buyer refers to “Lee” throughout the various recordings. Despite some discrepancies (e.g., the seller had a mustache and
The first May buy followed the same pattern but took place outside the car, and the main taped evidence was from audio recordings. The jury could, of course, compare voices from the first May audio with the two February audio recordings; and, in addition, although Henry did not testify at trial, Agent Lewis testified that he had heard Henry speak in person in late 2003 and that Henry‘s voice matched the voice on the tape.
Thе second May buy was also outside the car. The government offered an audiotape of a telephone conversation between Ortiz and someone at a cell phone number assigned to Henry arranging to meet near a restaurant; but, because of distortions at the noisy rеstaurant, the corresponding audiotape of the transaction itself was hard to make out, although the government sought to show fragments allegedly consistent with a drug deal.
The defense called no witnesses except for Agent Lewis who was recalled and subject to brief examination рrimarily about Ortiz’ admissions of past criminal conduct. The defense did, however, bring out Ortiz’ very extensive record of past criminal conduct, the benefits he received from the government, and alleged
In closing the prоsecutor relied scarcely at all on Ortiz but focused heavily on the videos for the February buys and on the audio for the first May transaction. For the second May transaction, the links were the telephone call arranging the meeting and the less distinct audio-taped discussion at the transaction site. The defense closing was an energetic kitchen-sink collection of criticism of Ortiz, Lewis and the prosecution‘s supposed failure to prove what it had promised.
The jury, after approximately five hours of deliberation, found Henry guilty as to the first three transactions and acquitted as to the fourth (the May 13 sale, which was the one minimally recorded). The district court sentenced Henry to 144 months’ imprisonment. Henry has now appealed and we have pending both his appeal from his conviction and a recent motion by Henry filed in this court seeking a remand to permit him to filе in the district court a
On this appeal, Henry wisely does not challenge the sufficiency of the evidence against him. The first of his two sets of arguments is directed to discovery and the main contention is that the district court erred in quashing the eve-of-trial subpoena to Ortiz and limiting the similar subpoena to Lewis. A second
In federal criminal trials, defense access to government evidence that is exculpatory or helpful in impeaching government witnesses is governed by a set of statutory and rule-based requirements elaborated through much doctrine. Among the most familiar are those reflected in the
In addition, but with limitations, the defense may use subpoenas before trial to secure admissible evidence but not as a general discovery device.
Here, the subpoenas were not only extremely broad and unrealistic, especially as eve-of-trial demands, but the categories of information overlapped with prior demands for information. Henry‘s briеfs do not explain just what materials had been produced by the government in response to the prior requests; but if the earlier production had been unjustifiably deficient, the
In addition, practically all errors relating to discovery or the admission or exclusion of evidence require some showing of prejudice--usually, some variant on a likelihood of a different outcome if the error had not been made. See, e.g., United States v. Castellini, 392 F.3d 35, 52 (1st Cir. 2004) (improperly admitted evidence must have “likely affected thе outcome of trial“). Less is sometimes needed for constitutional error but, even there, some prejudice ordinarily is required.3
Most of the salient material sought both in the earlier demands by Henry and in his eve-of-trial subpoenas aimed at two targets. Most important was material to impeach Ortiz, and understandably so since he alone had dealt with the drug supplier. But Ortiz was impeached by overwhelming evidence of his criminal past and the payments to him from the government. The prosecution relied centrally on the videos and audiotapes. The jury, acquitting on the last transaction, showed that it placed minimal faith in Ortiz.
Asked by us at oral argument about the apparent lack of prejudice and the powerful taped evidence supporting the convictions, Henry‘s counsel said that the defense hoped to show that Agent Lewis had been careless and even untruthful as to prior dealings with Ortiz. But only two examples were offered and neither was very significant.4 Lewis was not shown to be generally unworthy of belief, and any doubts raised about either competence or veracity could not have seriously undermined the video and audio evidence.
Henry argues that the limitations on discovery and the subpoenas constituted not only an abuse of discretion by the district сourt but also a violation of the Sixth Amendment, which guarantees “criminal defendants a meaningful opportunity to present
Henry makes one other discovery-related argument, namely, that the government read an early discovery order too narrowly and that the district judgе should have sanctioned the government. The argument is not adequately developed in Henry‘s opening brief and so is forfeit, Mass. Sch. of Law v. Am. Bar Ass‘n, 142 F.3d 26, 43 (1st Cir. 1998). In any event, the judge supportably found that the government‘s reading was reasonable.
Henry‘s other main claim on appeal is that “the district court erred in admitting the evidence obtained through . . . Ortiz‘s commission of federal and state crimes.” This interesting argument starts with a series of propositions: that the Attorney General has only doubtful power to authorize acts that constitute
The government says that neither the lack of authority nor the guideline violation claims were adequately preserved as bases for suppression. This is quite arguably so as to the former; the latter may have been preserved. But, by-passing waiver or plain error requirements, we reject the exclusion claim on the merits. Even assuming arguendo infirmities as to authority, delegation or compliance with Justice Department guidelines, exclusion of the evidence was not warranted in this case.
Nothing here involves evidence made unreliable by government misconduct, so exclusion would serve only a deterrent value--if misconduct there were--at the cost of letting an otherwise guilty defendant go freе. The Supreme Court has been willing to pay that price in the case of evidence secured by certain constitutional violations, although even in such instances it has adopted a number of qualifications. See, e.g., United States v. Leon, 468 U.S. 897, 922 (1984); Stone v. Powell, 428 U.S. 465, 493 (1976).
Similarly, this court has said that “[t]he exclusionary rule was not fashioned to vindicate a broad, general right to be free of agency action not ‘authorized’ by law.” Hensel, 699 F.2d at 29. Judge Posner has explained why: “Exclusion confers windfalls on the guilty and therefore, at least as a device for enforcing nonconstitutional rules, is disfavored.” United States v. Dawson, 425 F.3d 389, 394 (7th Cir. 2005), reh‘g granted on other grounds, 434 F.3d 956, cert. denied, 127 S. Ct. 831 (2006).
There is a good deal of precedent supporting the use of sting operations in law enforcement, including drug transactions involving undercover agents or cooperating private persons;7 and
Justice Department guidelines were not compelled by statute, nor intended to create private rights. United States v. Flemmi, 225 F.3d 78, 88 (1st Cir. 2000), cert. denied, 531 U.S. 1170 (2001). Henry may be right in saying that the guidelines are underenforced, and this would be cause for concern, but that is primarily a matter for the Justice Department or, if Congress wishes, for its supervision.
We deny Henry‘s “motion for remand to permit filing of
Affirmed.