USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 95-1826

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD MARSHALL,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

___________________

____________________

Before

Lynch, Circuit Judge,

_____________

Aldrich and Bownes, Senior Circuit Judges.

_____________________

____________________

Gordon D. Fox, with

______________

whom David A. Cooper

________________

and Cooper & Sanc

______________

were on brief, for appellant.

Craig N. Moore, Assistant
________________
Sheldon

Whitehouse, United

United

States

States

Attorney,

Attorney, and

with

Zechariah

Chaf

___________________

_______________

Assistant United States Attorney, were on brief, for appellee.

____________________

March 31, 1997

____________________

LYNCH,
LYNCH,

Circuit Judge.
Circuit Judge.
______________

The

Providence

police

arrested Richard

Island hotel

distribute

Marshall and another individual

room for

and

possession of

conspiring

to

Marshall was acquitted on the

deadlocked on

trial,

limited

do

resulted in a guilty

charge

verdict.

heroin with

the

same.

intent to

Initially,

conspiracy count, but the jury

the possession with

to the

in a Rhode

of

intent charge.

A second

possession with

intent,

Marshall was sentenced

to 72

months' incarceration.

Marshall argues on appeal that his conviction

brought about

by a

denial of his

motion to

police produce

have

been in

series of errors:

the district

suppress, its failure

was

court's

to make

the

a tape recorder and tape which may or may not

the hotel

room, and

its limitation

of cross

examination; a DEA agent's inconsistent

grand

jury

and at

trial;

testimony before the

and improper

prosecutor in his closing argument.

and affirm the conviction.

statements

by the

We reject these

claims

The issue which merits

the most

discussion is the contention about the "missing evidence."

I.

We outline the

facts only as necessary

to set the

framework for the issues, because Marshall does not challenge

the

overall sufficiency

Marshall

challenges

support the

the

trial judge's

of

the evidence.

sufficiency

of

To the

the

evidence

determination against him

-22

extent

to

on the

motion to suppress,

most

favorable

to

the evidence is

the

described in the

government.

light

United States
______________

v.

Hernandez, 1997 WL 109200, *1 (1st Cir. Mar. 17, 1997).

_________

On the

morning of November 30,

police lieutenant received

the

a phone call from

Day's Hotel in Providence.

suspected there

was drug

1994, a Providence

the manager of

The manager reported that he

activity in

Room 312 involving

Richard

Marshall

suspicions.

("DEA")

and

The

federal Drug

was brought

background check

on

criminal record and a

where

explained

into

in

and

out

the case.

photograph.

and

came up

had been a

room,

his

Administration

They drove to

Marshall's

for

The officers

Richard Marshall

of

reasons

Enforcement

the manager confirmed there

traffic

the

did

with

the hotel,

heavy flow of

identified

the

photograph as being of Marshall, and said Marshall had listed

his

While

car as a Mercedes

Benz on the

hotel registration card.

the officers were in the lot looking for the Mercedes,

Marshall

appeared.

asked if they

when they said

The officers identified

could speak

with him.

themselves and

Marshall agreed,

there had been complaints about

and

the activity

in his room, he said he had "his girl" in the room.

The officers asked which

pointed

to a

Toyota, which

number than the one

The officers asked

had a

was his car, and Marshall

different license

he had listed on the

permission to look

-33

plate

registration card.

in the car;

Marshall

agreed,

and they searched the car

asked, Marshall

denied ever

but found no drugs.

having been arrested,

When

but when

shown his arrest record, started to chuckle.

The officers

went to his room.

had his

if he minded

He said he did not mind

his girl was there.

Marshall

asked Marshall

They all went

room key,

and repeated that

up to the room.

he knocked

if they

on the

Although

door before

opening it.

There

however,

defendant.

from

beds.

man,

was no

Thomas

In addition,

woman

in

Dantzler,

room.

soon to

there was a

between the mattress and the

The bag contained

the

There

become

paper bag

co-

protruding

box springs of one of the

almost 200 grams of heroin,

street value of about $26,000.

was,

with a

II.

We address Marshall's claims seriatim.

________

Exculpatory Evidence Claim

__________________________

Marshall

asserts

recorder, switched to the

time of his arrest,

room both before and

and

that the

exculpatory in at

show that he

he

had

micro-cassette

"on" position, in the room

that the tape captured what

the

tape

that

during the arrival

would exculpate

least two

and Dantzler

concert promotions, not

him.

drug dealing, and

-44

happened in

of the police,

It

senses, he submits:

were in fact

at the

would

prove

it

would

talking about

it would tend

rock

to

support his version of

from

the

Amendment

the facts -- which

officers'

version

claims.

There

whatever his

--

is

conversation with

relevant

some

room

differs radically

to

for

his

Fourth

skepticism:

Dantzler, the drugs

were in

his room, and on the motion to suppress, the court found that

he had consented to

the officers' request to enter

before they entered the room.

his room

Nonetheless, the government is

______

obligated

to

produce exculpatory

evidence to

a defendant.

Brady v. Maryland, 373 U.S. 83 (1963).

_____
________

We set the factual

he recorded

they

were

stage.

his conversation

promoting and

that

Marshall testified that

with Dantzler about

he

left the

a concert

tape

recorder

running when he left the hotel room to go to the parking lot.

This was done,

used

he said,

his telephone.

He

to keep track

of whether

says the recorder

Dantzler

would still have

been running when he returned to the room and that one of the

detectives picked it up and made a remark about it.

The officers who

room

tell

were present in

different story.

Detective Cross both testified

DEA

Marshall's hotel

Agent Mansolillo

that they did not see

and

a tape

recorder

in the room.

Detective Lauro indicated that he saw

a "narrow" "electronic device" in the room, which he

"might have

picking

officer,

been a tape

it up

or

recorder."

saying anything

Detective

about

it.

thought

Lauro denied

The

fourth

Detective Gerstmeyer, though cross-examined at some

-55

length by defense

seen

a tape

counsel, was

recorder.

never asked

The officers

whether he

did seize

had

some small

electronic equipment (two beepers, two portable phones, and a

small calculator), but none of them remembered seizing a tape

recorder.

Agent

other seized

inventory.

examined

tape.

Mansolillo took

the prosecutor and

that evidence and did

court

asked

the

he replied that he

that the prosecutor

do so.

the drugs

and

not prepare an

defense counsel

not find a

tape recorder or

prosecutor

whether

specifically questioned the officers

recorder;

of

evidence, but unfortunately did

Later, both

The

control

he

had

on the existence of the

had not.

The court requested

The prosecutor

did check,

but

with only two of the four officers.

prosecutor

The court instructed the

to go back and check with the other two officers;

the prosecutor failed to

do so, but defense counsel

pursue the issue any further.

did not

The judge stated that he could

not require the government to produce something which it said

it

did

officers

not have.

about

Defense counsel

the tape

recorder

did

and

cross-examine the

argued the

missing

evidence argument

has two

evidence theory to the jury.

Marshall's

predicates:

exculpatory

that the recorder and tape existed and that the

contents of the tape were exculpatory.

His claim flounders.

-66

Marshall

does

not argue

possess

the tape recorder and

faith.

Cf. Arizona v. Youngblood,

___ _______
__________

does not

even argue

that

government did

tape and destroyed

it in bad

488 U.S. 51 (1988).

the government

recorder and tape from the hotel

the

that the

room.

recorder was there, the government

He

removed the

tape

He simply says

that

agents were aware of

it, the agents were the ones who seized the evidence, and the

tape should have been produced.

United States v. Femia, 9 F.3d 990 (1st Cir. 1993),

_____________
_____

which the government cites

address the issue here.

whether certain

In

as dispositive, does not directly

Femia, there was no dispute over

_____

tape recordings

consequences of the

existed; the issue

was the

government's inadvertent destruction

of

the tapes.

The government also cites United States v. Pedraza,

_____________
_______

27

F.3d

1515 (10th

Cir.

1994), which

There the defendants claimed

taped

produce

certain calls

is

more pertinent.

that a government informant had

and that

the tape recordings of

the government had

the calls.

failed to

Id. at 1526-27.

___

The

court

concluded

that the

defendants

"have

presented

insufficient evidence

that the

government either

failed to

turn over 'missing tapes,'

faith.

to

The fact

produce any

existed."

Id.
___

or that it destroyed them

of the matter is, [defendants]

convincing

at 1527.

evidence that

-77

have failed

these tapes

The defendants' claim

in bad

ever

was based on

an equivocal

statement from the informant

that he attempted

to record all the calls.

Like the

court in Pedraza, we
_______

think the defendant

here bore the initial burden of persuading the district court

that

there

existed.

government

was reason

to

He did not do so.

believe

the recorder

Absent a rare case in

and

tape

which the

may be in a better position than the defendant to

disprove the existence of evidence claimed to be exculpatory,

there

is

defendant.

no

unfairness

It

is difficult for

the existence of

in

placing

the

burden

on

the

the government to

disprove

something and easy for defendants

to claim

that

something

existed and

was

exculpatory

but that

the

government failed to preserve it.

Placing the initial burden on the defendant is also

consistent with

is

undisputed

defendant's

that is,

the general law in the

that "missing

burden to

evidence"

show that

that "there is

area.

Even where it

exists,

the evidence

it is

the

is material,

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).

______

Defendants also

constitutional

violation

preserve evidence on their

bear a

when

two-part burden to

the

behalf.

government

show a

fails

to

California v. Trombetta,
__________
_________

467

U.S. 479

(1984) (breath

alcohol test).

The "missing

-88

evidence"

must

possess

apparent before the

such

evidence

"exculpatory

value

that

evidence was destroyed" and must

a nature that the

comparable

an

defendant would be

by other

reasonably

was

be "of

unable to obtain

available means."

Id. at 489;
___

see also Femia,

___ ____ _____

Youngblood,
__________

the Court imposed a third

where

the

potentially

9 F.3d at

993.

In Arizona
_______

burden on a defendant

exculpatory

evidence

destroyed: that of showing the government acted

in

destroying the evidence.

488

U.S. at

58.

has

on

the defendant

to show

the

been

in bad faith

Under this

precedent, absent some unusual situation, the initial

is

v.

evidence existed.

burden

That

burden was not satisfied here.

The

court

related

evidentiary claim

improperly limited the

that

the district

cross-examination of Detective

Lauro, as beyond the scope of direct, is without merit.

Fourth Amendment Claims

_______________________

Marshall makes two Fourth Amendment

that he did not

consent to have

arguments: (1)

the police enter his

room,

and therefore all evidence that came from the room was seized

illegally, and (2) that he

contentions require

was under de facto arrest.

Both

that Marshall's version of

the facts be

accepted and the government's version rejected.

The district

court's factual determinations depended in large part on whom

the court believed, as the testimony of the witnesses painted

two very different scenarios.

The district court disbelieved

-99

Marshall's version.

reversed

unless

Factual findings by the judge may not be

clearly

erroneous.

United States
______________

Cleveland, 1997 WL 61397, *7 (1st Cir. Feb. 18, 1997).

_________

can

be no

credibility

clear error

of the

where factual

witnesses who

findings turn

appear before

v.

There

on the

the judge.

United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990).

_____________
____________

Defendant

issue

having consented,

regarding

the

seized

there

is

evidence.

Zapata, 18 F.3d 971 (1st Cir. 1994).

no Fourth

Amendment

United States
______________

v.

______

The

testimony

district

court

also

disbelieved

Marshall's

on which he relies for the de facto arrest theory.

There being no

error in the finding

that Marshall consented

to the

officers' request

to

enter his

court's

conclusion that

there

was no

room, the

de

district

facto arrest

is

hardly clear error.

For

motion

believe

to

the same reasons, we

suppress the

the

testimony

drugs.

of

the

uphold the denial of the

The

trial judge

officers,

who

chose to

provided

sufficient predicate.

Motion to Suppress Marshall's Statements.

________________________________________

Marshall

discretion

in

argues

refusing

to

that

hear

the

court

his

motion

abused

to

its

suppress

statements he made before

the drugs were found in

his room.

The district court found that Marshall had waived this motion

by failing to make it in a timely fashion.

We agree.

-1010

Marshall

filed the

motion to

suppress statements

two months after

also

did

not

the date

object

to

introduced into evidence.

to raise the

the motions were

the

statements

due.

when

Because Marshall

Marshall

they

were

failed properly

issue in the district court, we do not consider

it.

United States v. Nunez, 19 F.3d 719 (1st Cir. 1994).

_____________
_____

add

that the motion is

he did not give consent

We

premised on Marshall's argument that

to enter his room and, as

a result,

he was in custody and should have been informed of his rights

under

Miranda v. Arizona, 384

_______
_______

had there

because

not been

the

court

Marshall.

Grand Jury Testimony

____________________

U.S. 436 (1966).

waiver, the argument

determined

the

Thus, even

would have

consent

issue

failed

against

The testimony given by DEA

slightly

Agent Mansolillo varied

at trial from the testimony he had given before the

grand jury about exactly where the bag of drugs was found and

about

the

sequence

lieutenant who was

cross-examined

instance of

testimony,

suggest

found

of

actions

by

in the

room.

The

on the

point.

and there is nothing

agent was

in the agent's

about where

police

thoroughly

that this

in the record

The dispute

in the room was largely

Providence

It appears

confusion or mistake

perjury.

is an

grand jury

before us to

the drugs

were

immaterial to the indictment:

-1111

whether the drugs

were under

the mattress or

not does

not

undermine the charge of possession with intent to distribute.

Even

if there

were

an error

in

the grand

jury

process, and we do not suggest there was one, defendant had a

fair

trial,

and

preliminary stage

the

verdict

harmless now.

475 U.S. 66, 72-73 (1986).

renders

any

error

at

the

United States v. Mechanik,

______________
________

Prosecutor's Closing Argument

_____________________________

To

understand

prosecutor's summation,

must

first

be recalled.

Marshall's

objection

the procedural history

This

is Marshall's second

trial, he was acquitted

of a charge

to

the

of the

case

trial; in the

of conspiracy to

distribute drugs.

Marshall

says

that

the

prosecutor

improperly

accused him of a conspiracy in the face of an acquittal, that

the

prosecutor relied on facts not in evidence, and that the

prosecutor improperly vouched for a

witness.

The first

two

points are related.

While

"conspiracy,"

the

and

prosecutor

never

referred

never

to the

used

prior

the

trial

word

or

charges, Marshall says

that he

did so in

essence with

following argument:

I submit to you that the two of them were

working
happened.

together

and

That the drugs

from Chicago that day.

. . . .

-1212

this

is

what

were flown in

the

The defendant met Dantzler, the other man

who

brought the

drugs in

from Chicago.

And they set up together in that room and

the plan, I submit

to you, was for them,

for Marshall to be the middleman for

sale of

those

drugs, the

the

wholesale

of

those drugs to people in Providence.

Marshall relies

on United States v. McBride,

______________
_______

F.2d 1316

(8th Cir. 1988),

the trial

court's discretionary ruling awarding

due to

three trial

statement

appeared

made

to

conflict with

argument

by

is not

prosecution

errors.

refer to

the

did

where the Eighth

One of

prosecutor in

counts

Id.
___

Circuit upheld

final

at

argument

1318.

on balance,

not exceed

bounds.

The

which

dismissed and

frivolous, but,

the

a new trial

the errors involved

previously

evidence.

862

to

Marshall's

we think

the

presence of

Dantzler in the room and the quantity of drugs fairly support

the

"with intent

to distribute"

portion of

the possession

charge.

The

permissible

and

were

prosecutor's

inference from

not a

words

suggested,

we

the evidence produced

reference to

the

think,

at trial,

conspiracy charge.

statement was within the allowable scope of argument.

States
______

v. Ovalle-Marquez, 36 F.3d 212 (1st Cir. 1994).

______________

The

United
______

Even

if the prosecutor's remarks were an improper veiled reference

to

the

conspiracy

charge,

they

were

not

egregious to warrant a reversal of the verdict.

sufficiently

-1313

The

witness

is

argument

based on

about

three

improperly

portions

vouching

of the

Marshall, in

effect,

telling the version he is

effect, has said to
not telling
have

come in

you

has

you, the police

and

by

saying, he, in

the truth.

here

said

prosecution's

closing:

Mr.

for

are

That

they

taken the

oath

about

what

happened,

and they

haven't

told you the truth under oath.

. . . .

They say, I submit to you, they have told

the

story

the

way

it

truly

unfolded . . . .

. . . .

So, I ask you

in choosing between

versions think carefully

about what

police

if

could have

Steven Cross,

done

these

these

the
men,

Detective Lauro, Detective

Gerstmeyer, Detective Mansolillo had been

people

who

here and

would

tell you

deliberately come
the truth.

Yes, you

will hear undoubtedly

in summation

Detective

made a

the

Mansolillo

Grand Jury.

People

and he corrected it here.

Defendant

did not object to

vouching,

and so

our review

in

that

mistake in

make mistakes,
All right.

what he now

in this

attacks as witness

context is

for plain

error.

United States v. Grabiec, 96 F.3d

_____________
_______

549, 550 (1st Cir.

1996); United States v. Sepulveda, 15 F.3d 1161, 1187-88 (1st

_____________
_________

Cir.

1993).

amount to

These

first two

improper vouching.

75 F.3d

59, 62

vouching

for

(1st

comments

we think,

United States v. Cruz-Kuilan,

______________
___________

Cir. 1996)

prosecutor to

do not,

say

-1414

(holding

that it

that jury

should

is

not

come to

believe

on the evidence that the events occurred the way the

government's witnesses said they did).

The

vouching.

We

last statement

assume what

that the Providence

is

simply too

garbled to

the prosecutor meant

police would not permit

He said, as

opposite.

no complaint.

Even if

inappropriate

comment

were

inappropriate,

reversible

outcome

an

error unless

of

Carrasquillo,
____________

the

70

it is

best we can tell,

likely to have

is

not

affected the

United States
______________

v.

F.3d 706,

713

1995).

Cir.

the

the remarks

trial.

(1st

was

its officers to

deliberately tell lies.

Defendant has

to say

be

Cartagena__________

These

comments did not likely affect the outcome of the trial.

It is an oft-heard complaint that the prosecutor is

putting

his personal endorsement on the scale.

Of course he

should not do so, but there are two sides to this.

factual

recitation in the

with a personal

disclaimer.

personal endorsement.

refer

without

to the

It is

evidence

It is one

in factual

contemporaneously

objects, which,

form

The

must start

thing to

another for the

constant qualification.

sometimes be close.

jury.

prosecutor's argument

as he

line, of

Not every

emphasize

prosecutor to

goes

along

course, may

But an excellent test is whether counsel

thinks

the

line

in turn, enables

has been

the court to

crossed,

and

instruct the

In the absence of such objections, plain error review

-1515

is

called for.

There is no

plain error here.

96 F.3d at 550.

The conviction is affirmed.

________

See Grabiec,
___ _______

-1616