USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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Nos. 93-1276
93-1576
UNITED STATES OF AMERICA,
Appellant,
v.
NOEL FEMIA,
Defendant, Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and DiClerico, Jr.,* District Judge.
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Paula J. De Giacomo, Assistant United States Attorney, with
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whom A. John Pappalardo, United States Attorney, and Heidi E.
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Brieger, Assistant United States Attorney, were on brief for
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appellant.
James E. Carroll, by Appointment of the Court, with whom
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John J. O'Connor and Peabody & Arnold, were on brief for
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appellee.
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November 18, 1993
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* Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. The government appeals from
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a district court pretrial order suppressing the testimony of its
central witness in the prosecution of defendant-appellee Noel
Femia for various drug crimes. We have jurisdiction under 18
U.S.C. 3731. The district court suppressed the testimony in
order to remedy a perceived violation of Femia's due process
rights, resulting from the government's allegedly grossly
negligent destruction of tape recordings of conversations between
the witness and other co-conspirators. For the reasons that
follow, we reverse and remand with directions to vacate the
suppression order.
I
I
In the summer of 1985, the Drug Enforcement
Administration ("DEA") entered an on-going investigation of a
metropolitan Boston cocaine organization known as the "Triple X
Public Service Corporation" ("Triple X"), which was being
conducted by the Ashland, Massachusetts Police Department. The
DEA recruited one of the three founding members of Triple X,
Christopher LaPlante, who was also its bookkeeper, as a
government informant in exchange for a plea agreement.1
LaPlante informed the DEA that Femia and co-conspirator Benhur
Perea were the two suppliers of cocaine to Triple X. As part of
the investigation, over a period of several months, LaPlante
secretly tape-recorded conversations with various employees and
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1 The other two founders allegedly were Alan Stone and Edward
Intinarelli.
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customers of Triple X. In all, the government made twenty-four
tape recordings of conversations between LaPlante and alleged co-
conspirators or customers of Triple X (the "LaPlante tapes").
On October 3, 1986, a federal grand jury returned a
multiple count indictment charging Femia with conspiracy to
distribute cocaine, possession of cocaine with intent to
distribute, and aiding and abetting, in violation of,
respectively, 21 U.S.C. 846, 841(a)(1), and 18 U.S.C. 2.2
The indictment also charged eight other defendants and co-
conspirators, whose cases are not part of this appeal, with
various drug crimes. The government secured the conviction of
the other eight defendants by trial or guilty plea in 1987.
Femia remained a fugitive until July of 1992.
The DEA prepared three files for the co-conspirators in
the drug prosecution: one each for Perea, Femia, and Alan Stone,
one of Femia's alleged co-conspirators. The LaPlante tapes were
physically stored in Perea's file. The Perea file was cross-
referenced to the Stone and Femia files. According to DEA
Special Agent Albert G. Reilly, the cross-reference was intended
to indicate that the cases were connected and that the evidence
in each file pertained to the other cases. Apparently, it was
the intent that an agent closing the Perea file would not order
the routine destruction of evidence in the file until all cross-
referenced cases were closed as well.
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2 A racketeering charge for violation of 18 U.S.C. 1962(c) was
dismissed.
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On October 8, 1987, a newly-assigned DEA agent, Albert
Lively, authorized the destruction of all the LaPlante tapes
contained in the Perea file. On that same day, Agent Lively made
a notation in the Femia file that "this case is pending the
arrest and prosecution of Femia."
The government finally apprehended Femia in July of
1992. As a result of requests for information discoverable under
Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373
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U.S. 83 (1963), the government learned that the LaPlante tapes
had been destroyed. Apparently, the destruction was a mistake
that occurred because Agent Lively incorrectly failed to heed the
cross-referencing notation linking the Perea file to Femia's
file, which should have alerted him that the tape recordings in
Perea's file were to be preserved pending the disposition of
Femia's case. According to Agent Reilly, "[t]he fact that the
tape recordings were destroyed was an inadvertent oversight
caused by the three-part filing system that had been created."
The district court specifically found that the government did not
destroy the LaPlante tapes in bad faith, but rather, the
destruction resulted from the government's gross negligence.3
The government, however, provided some information
regarding seventeen of the twenty-four original tape recordings.
Tapes and transcripts had been made for six of the recorded
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3 Whether this conduct can be described as "gross" negligence is
not an issue before us and thus we express no opinion on this
matter except to indicate that we will assume that the finding is
appropriate for purpose of this appeal.
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conversations (the DEA obtained copies of six of the original
tapes from Perea's counsel).4 In addition, transcripts were
made for two other tape recordings;5 no copies of these tapes
are available, however. Finally, the government provided DEA
Report No. 184, identifying the date, person recorded, and, with
respect to some tapes, an extremely cursory description of the
subject matter of the recorded conversation.6 Testimony
concerning the tapes from Agent Reilly and Ashland Police
Detective Thomas Kinder was also presented to the court. Agent
Reilly contemporaneously monitored the recorded conversations and
Detective Kinder reviewed the tapes.
By affidavit, Detective Kinder explained that he
transcribed seven of the tapes. Secretaries at the DEA typed his
notes. He verified that the typed transcripts accurately matched
his notes and again listened to tapes to confirm that each
transcript was accurate and complete. Kinder stated that the DEA
prepared the initial transcript of a conversation on February 13,
1986 (tape N-14). Because he was not satisfied with the DEA
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4 These recordings occurred November 5, 1985, February 13, 18,
27, 1986, and March 18 and 25, 1986.
5 These are transcripts of tape recorded conversation that
occurred on February 4, 1986 and June 5, 1986.
6 These "summaries" are of limited utility; for example, some
provide no information concerning the contents of the
conversations and others merely indicate that the subjects engage
in a "drug conspiracy conversion." The most detailed summary
contains the unhelpful statement that the subject "admitted to
transporting multi-kilos of cocaine from Florida to Massachusetts
for Benhur Perea et al." The reports concern recordings that
occurred on February 11, 1986, March 7 (two on this day), 11, 13
(two on this day), 18, and 25, 1986.
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transcript version, he prepared a second transcript that he
believed was accurate and complete.
Agent Reilly's affidavit is to a similar effect. He
stated that he listened to the conversations as they were
recorded, determined that eight of the tapes were relevant to the
investigation, and had those transcribed by the Ashland police.
Although the DEA transcribed one of the tapes, Reilly had the
Ashland police produce another version, believing that their
knowledge of the central figures and events in the investigation
would produce a more accurate and complete transcript.
Both Kinder and Reilly explained in their affidavits
that they had listened to each of the sixteen tapes which were
not transcribed and determined that, given the investigation's
limited resources and their opinion that the tapes contained
general conversations that were not specifically relevant to the
core of the Triple X investigation, those tapes should not be
transcribed. Both asserted that none of the sixteen tapes
contained any reference to Femia or his code names or numbers.
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Agent Reilly indicated that he would have ordered transcripts
made of any conversation in which references were made to Femia.
Femia filed a motion to dismiss the indictment, or in
the alternative, to suppress the testimony of the government
witness, LaPlante, arguing that the destruction of the LaPlante
tapes denied him of material exculpatory evidence in violation of
Brady and its progeny. After a suppression hearing, the district
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court denied the motion to dismiss, but granted the motion to
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suppress. This appeal followed.
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II
II
In this case we consider the constitutional
ramifications of the destruction by the government of original
tape recorded evidence pertaining to a criminal defendant's case.
It is axiomatic that Brady and its progeny established
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that a defendant has a due process right to request and receive
evidence that the government possesses which is material to his
guilt or punishment. Id., 373 U.S. at 87. The Constitution,
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however, does not require a prosecutor "routinely to deliver his
entire file to defense counsel." United States v. Agurs, 427
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U.S. 97, 111 (1976). In recent years the Supreme Court has
developed a framework to analyze "what might loosely be called
the area of constitutionally guaranteed access to evidence."
California v. Trombetta, 467 U.S. 479, 485 (1984) and Arizona v.
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Youngblood, 488 U.S. 51, 55 (1988) (each quoting United States v.
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Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). The Supreme
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Court's jurisprudence divides cases involving nondisclosure of
evidence into two distinct universes. Brady and its progeny
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address exculpatory evidence still in the government's
possession. Youngblood and Trombetta govern cases in which the
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government no longer possesses the disputed evidence.
The standards established by the Supreme Court to deal
with evidence that the government has lost or destroyed reflect,
in part, "the difficulty of developing rules to deal with
evidence destroyed through prosecutorial neglect or oversight."
Trombetta, 467 U.S. at 486. As the Court stated in Trombetta,
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"[w]henever potentially exculpatory evidence is permanently lost,
courts face the treacherous task of divining the import of
materials whose contents are unknown and, very often, disputed."
Id. The Court's pronouncements also demonstrate respect for the
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difference between nondisclosure cases, which involve known
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quantities of evidence and in which a new trial may be ordered;
and missing evidence cases, which implicate only potentially
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exculpatory evidence and in which the possible remedies are
dismissal or suppression of the state's most probative evidence.
See id. at 486-87.
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Trombetta and Youngblood together established a
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tripartite test to determine whether a defendant's due process
rights have been infringed by law enforcement's failure to
preserve evidence. See Griffin v. Spratt, 969 F.2d 16, 21 (3d
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Cir. 1992); Jones v. McCaughtry, 965 F.2d 473, 476-77 (7th Cir.),
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cert. denied, 113 S. Ct. 360 (1992); United States v. Rastelli,
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870 F.2d 822, 833 (2d Cir.), cert. denied, 493 U.S. 982 (1989).
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In Trombetta, the Court established two hurdles that a
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defendant must surpass to show a constitutional violation for
missing evidence. The court stated:
Whatever duty the Constitution imposes on
the States to preserve evidence, that
duty must be limited to evidence that
might be expected to play a significant
role in the suspect's defense. To meet
this standard of constitutional
materiality, . . . 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
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available means.
Trombetta, 467 U.S. at 488-89.7 In Youngblood, the Court later
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added a third element when it held that "unless a criminal
defendant can show bad faith on the part of the police, failure
to preserve potentially useful evidence does not constitute a
denial of due process of the law." Id., 488 U.S. at 58. A
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defendant who seeks to suppress evidence formerly in the
government's possession therefore must show that the government,
in failing to preserve the evidence, (1) acted in bad faith when
it destroyed evidence, which (2) possessed an apparent
exculpatory value and, which (3) is to some extent irreplaceable.
Thus in missing evidence cases, the presence or absence of good
or bad faith by the government will be dispositive.
Femia contends that the missing evidence test created
by Youngblood and Trombetta is inapplicable to his case and that
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the district court properly suppressed LaPlante's testimony as
required by Brady.8 The thrust of Femia's argument, we gather,
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is that the Youngblood analysis only applies to evidence "of
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which no more can be said than that it could have been subjected
to tests, the results of which might have exonerated defendant."
Id., 488 U.S. at 57. Here, because defendant requested and the
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7 Although Trombetta discussed the constitution's requirements
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with respect to state law enforcement, it applies equally to
federal agencies.
8 We note that applying a Youngblood rather than a Brady
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analysis places a substantially greater burden on the defendant
in that he must demonstrate bad faith by law enforcement
officials. Accord United States v. Caicedo-Llanos, 960 F.2d
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158, 161 (D.C. Cir. 1992).
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government did not furnish evidence that the district court found
to be material exculpatory evidence, Femia contends that Brady
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established and Youngblood confirmed that such evidence must be
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excluded, irrespective of the good or bad faith of the
government. See Brady, 373 U.S. at 87; Youngblood, 488 U.S. at
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57.
Femia asserts that the record evidence fully supports
the district court's conclusion that the LaPlante tapes
constituted material exculpatory evidence. The district court
found that the LaPlante tapes very likely could be used to
impeach LaPlante; second, the tapes, at least those whose
contents are discernible from transcripts or copies, contained
statements that directly exculpate the defendant; and third,
because the tapes implicated other individuals in crimes alleged
to have been committed by Femia, they could be used to create
reasonable doubt.9
The district court appears to have treated the LaPlante
tapes as a monolithic whole rather than distinguishing between
those tapes for which evidence of their contents exists and tapes
for which no copies or transcripts were made. As a result, the
district court incorrectly applied Youngblood. Because the
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Supreme Court has prescribed different due process standards for
different types of nondisclosed evidence, we categorize each
piece of evidence and separately discuss our resolution under the
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9 The district court had no basis to make a factual
determination regarding the exculpatory value of tapes or portion
of tapes concerning which it had no concrete evidence.
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appropriate due process standard. We apply Youngblood to
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evidence which no longer exists and Brady to exculpatory evidence
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in the government's possession.
In this case, we find no due process violation with
respect to evidence that no longer exists because it was not
destroyed in bad faith. As a result, the district court
improperly suppressed LaPlante's testimony on the basis of this
missing evidence. With respect to evidence that exists, we find
that the government complied with its obligation under Brady, it
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disclosed the evidence. Thus, to the extent that the district
court suppressed LaPlante's testimony based on a perceived
violation of Brady, it erred.10
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We begin then by analyzing the six LaPlante tapes for
which copies were made and provided to Femia after being obtained
from Perea's counsel. Femia claims and the district court found
that these tapes contain material exculpatory evidence.11
Femia argues that because the copies cannot serve as a reasonable
substitute for the originals -- he allegedly cannot verify their
authenticity or ensure that no tampering has occurred -- the
district court properly suppressed LaPlante's testimony to remedy
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10 The characterization of evidence as either in existence or no
longer existing is a factual determination. The record is clear
as to which pieces of evidence presently exist.
11 For example, one of the transcripts of the February 13, 1986
tape indicates that the original tape apparently contains
exculpatory material. The tape records a conversation between
LaPlante, Stone, and two others. On that tape, Stone apparently
states: "He's [Benhur Perea] the only one bringing coke in the
area, brother. He was the only one. Him and Noel [Femia], man.
Noel, Noel don't do nothing no more."
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the government's failure to disclose material exculpatory
evidence. We disagree.
No Brady violation has occurred with respect to the six
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LaPlante tapes that were copied because Femia requested and
received copies of these tapes prior to trial. It is true, as
Femia contends, that the six copies may have been altered,
damaged, or inexpertly copied from the originals. We will never
know, however, with any degree of certainty whether the copies
are entirely accurate reproductions of the originals.12 With
respect to fragments of the original tapes that may have been
irretrievably lost, we can say no more than that those fragments
might have contained material exculpatory evidence. These
allegedly missing fragments, like the breath and semen samples at
issue in Trombetta and Youngblood, can only be characterized as
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potentially exculpatory evidence.13 In this circumstance,
having shown no bad faith by the government, the possibility that
the copies of the tapes may have been altered, or segments of
tape may have been deleted, provides no basis for finding a due
process violation.
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12 If, for some reason, Femia could not use the six copies of
these tapes in his defense, we would be confronted with a
situation in which we knew of the existence of material
exculpatory evidence that the government failed to tender. Under
those circumstances, it is quite likely that a Brady violation
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would exist and would warrant granting the defendant's motion to
suppress evidence.
13 The scientific tests required to determine exculpatory value
involved in Trombetta and Youngblood provide no relevant
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distinction. In those cases, some scientific analysis of the
disputed evidence was required. Here, someone had to listen to
the allegedly missing fragments to determine exculpatory value.
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We consider next the tapes for which Femia only
possesses a transcript. Femia complains that the transcripts are
of poor quality. He points to the great discrepancy between the
DEA transcript of the February 13, 1986 tape (tape N-16) and the
Ashland police version as proof that the transcripts do not
reflect important material evidence. The loss of the audio
portion and of the statements that were negligently not
transcribed by law enforcement agents presents the same situation
as the case in which missing fragments of conversation may have
been lost when the six other tapes were copied. We do not know,
and never will know, the content of statements that may have been
lost. Contrary to the district court's decision, no due process
violation has occurred. The government has disclosed the
transcript evidence allegedly possessing exculpatory value, as
required by Brady and its progeny. The lost audio portion and
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statements not transcribed are only potentially exculpatory, and
the failure to retain that evidence does not violate Femia's due
process rights because the government did not destroy the
evidence in bad faith. Youngblood, 488 U.S. at 58.
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With respect to those LaPlante tapes for which only DEA
Report No. 184 summaries exist and the tapes for which no record
of content exists, the district court clearly erred in finding a
due process violation because these tapes were destroyed due to
the government's gross negligence, not bad faith. Id.
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While the failure to demonstrate that the missing
evidence in this case was destroyed in bad faith is sufficient to
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reverse the district court, we note that Femia has not met
Trombetta's materiality requirement for the missing evidence. To
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satisfy Trombetta's constitutional materiality standard,
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"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." Trombetta, 467
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U.S. at 488-89. The evidence before the district court showed
that any missing evidence -- whether one considers allegedly
missing fragments of the tapes for which copies exist or those
tapes which no longer exist in any form -- did not possess
exculpatory value apparent before law enforcement destroyed the
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tapes. Agent Reilly and Detective Kinder provided affidavits
stating that the destroyed tapes contained no references to
Femia, his code names or numbers. Agent Reilly also explained
that any tape containing references to Femia would have been
transcribed. The district court presumably would have found the
destruction to have been in bad faith if it did not credit Reilly
and Kinder's evidence and if the exculpatory value was apparent
before the destruction of the tapes. Youngblood, 488 U.S. at 56
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n.* ("The presence or absence of bad faith by the police for
purposes of the Due Process Clause must necessarily turn on the
police's knowledge of the exculpatory value of the evidence at
the time it was lost or destroyed."). However, no bad faith
finding was made by the district court. Femia therefore did not
establish the constitutional materiality of the lost evidence
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required to demonstrate a due process violation.
We reverse and remand with directions to vacate the
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suppression order.
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