United States v. McDowell
Opinion
USCA1 Opinion
August 12, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2084
UNITED STATES,
Appellee,
v.
BILLY RAY MCDOWELL, JR.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Billy Ray McDowell, Jr. on brief pro se.
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Guillermo Gil, United States Attorney, Jose A. Quiles-
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Espinosa, Senior Litigation Counsel, and Ernesto Hernandez-Milan,
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Assistant U.S. Attorney, on brief for appellee.
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Per Curiam. Billy Ray McDowell, Jr. was convicted of
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three counts of drug offenses. We affirmed that conviction
on appeal. United States v. McDowell, 918 F.2d 1004 (1st
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Cir. 1990); see also United States v. McDowell, 957 F.2d 36
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(1st Cir. 1992) (upholding resentencing after remand).
Thereafter, in December 1992, McDowell filed a motion for a
new trial on the ground of newly discovered evidence, which
he claimed was Brady evidence1 unlawfully retained in the
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hands of the prosecution. This allegedly newly discovered
evidence consisted of (1) tape recordings of two
conversations which occurred on February 1, 1988 between
McDowell and Agent Francisco Sarra, who posed as Franklin
Browne, a co-defendant, at the Dallas/Fort Worth airport2
and (2) McDowell's telephone bills for January and February
1988. The district court denied that motion and McDowell has
appealed. We affirm essentially for the reasons stated in
the district court's opinion and order. United States v.
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McDowell, 830 F. Supp. 90 (D.P.R. 1993). We add only the
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following comments.
It is clear that none of the evidence now relied on is
newly discovered. That is obviously true for McDowell's own
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1. See Brady v. Maryland, 373 U.S. 83 (1963).
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2. One was a telephone conversation with Agent Sarra
pretending to have just arrived at the airport. The second
conversation was recorded by a body wire worn by Sarra when
he met McDowell at the airport.
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telephone bills. Moreover, McDowell's claim that the
prosecution is responsible for producing McDowell's own
telephone bills is not only inaccurate, it is illogical.3
The tape recordings of February 1, 1988 also were not newly
discovered. McDowell, himself, testified at his resentencing
hearing that, immediately after he was arrested, an agent
played him a tape of his conversation with Agent Sarra. Tr.
4/4/91 at 24. He, therefore, knew of that tape's existence
prior to trial. And, both the recordings - that of the
telephone conversation and the recording from Sarra's body
wire - were referred to at trial by Agent Sarra. Tr. 6/27/88
at 565; 567. Even if the government had failed to produce
these tapes prior to trial - a concession which it does not
make - McDowell knew about both recordings, at the latest,
mid-trial, yet did not request copies, complain about any
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3. McDowell claims that, in support of his new trial motion,
he submitted the relevant telephone bills for both his
residence and his mobile telephones. And, he argues that the
district court misunderstood the collect call to Fort Worth,
Texas to which he referred. He says that the relevant call
was the collect call to Fort Worth made by co-defendant
Browne after co-defendant Darrin Taylor was arrested but
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before Browne, himself, was arrested. He contends that no
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charge which could represent that collect call appears on
those bills. Even properly understood, McDowell's claim
cannot evade the fatal blow that his own telephone bills
cannot be newly discovered. In any event, whether Browne did
or did not make a prearrest collect call to McDowell does not
significantly detract from the quantum of evidence supporting
McDowell's conviction.
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late disclosure, or seek a continuance of trial.4 Brady
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claims, at least typically, involve "the discovery, after
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trial of information which had been known to the prosecution
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but unknown to the defense." United States v. Agurs, 427
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U.S. 97, 103 (1976) (emphasis added).
In any event, there is scant, if any, exculpation in the
February 1 recordings.5 McDowell claims that the recorded
telephone conversation is exculpatory because it shows that
the $4,000 amount was suggested by Sarra. Even assuming this
is exculpatory, that is exactly what Sarra testified to at
trial.
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Related
Brady v. Maryland
373 U.S. 83 (Supreme Court, 1963)
United States v. Bagley
473 U.S. 667 (Supreme Court, 1985)
United States v. Billy Ray McDowell Jr.
918 F.2d 1004 (First Circuit, 1990)
United States v. Bill Ray McDowell
957 F.2d 36 (First Circuit, 1992)
United States v. McDowell
830 F. Supp. 90 (D. Puerto Rico, 1993)