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August 9, 1994


The opinion of the court was delivered by: ROYCE C. LAMBERTH


 This case comes before the court on defendant Neil Alexander Douglas' Motion for a New Trial on the basis of prejudicial prosecutorial misconduct. The court has considered the record in this case, and finds defendant's claim without merit. The court, therefore, denies defendant's motion.

 Mr. Gregory Moss is a police officer in the Metropolitan Police Department. In August, 1992, Officer Moss was detailed out of the patrol section in order to work as a plain-clothes, undercover officer with the Vice Office in the Fourth District. His assignment was to investigate the defendant, Mr. Neil Douglas. Mr. Douglas became a targeted suspect following a series of complaints from citizens of the area around 14th and Sheperd Streets. Officer Moss viewed two police photographs of Mr. Douglas in order to help him identify the suspect.

 Officer Moss first encountered Mr. Douglas on November 2, 1992. Moss asked to buy half an ounce of cocaine from Mr. Douglas, who responded that Moss should meet him at the 1300 block of Randolph Street. When Moss arrived there, however, he met Robert Johnson instead. The two men had a brief exchange and Mr. Johnson asserted that he would go and "speed up" Mr. Douglas. A few minutes later, Mr. Johnson returned, entered the car in which Officer Moss sat, and gave Moss a white rock-like substance in exchange for five hundred dollars. Officer Moss then returned to the Fourth District Police Station and gave the package to the narcotics division. The substance tested positive for crack cocaine.

 On November 10, 1992, Officer Moss was in the area of 3933 Fourteenth Street, N.W., Washington, D.C. Officer Goodwin, another member of the Metropolitan Police Department, had arrived earlier in order to videotape the events. Moss met Mr. Douglas and asked to buy a half-ounce of cocaine from him. Mr. Douglas explained that he would first need to buy a scale to measure the cocaine. The two men got into Moss' unmarked police car and drove around the block to a corner store on Fourteenth and Spring Road. (The videotape recording cuts off when the car went around the block, and resumes when the car is parked at 3933 Fourteenth Street.) Mr. Douglas acquired a scale and the two men drove back to 3933 Fourteenth Street.

 Moss and Douglas got out of the car and entered the building. Mr. Douglas then went up to the second level, where he remained for approximately three to five minutes. When he returned, he handed Moss a white rock-like substance in exchange for five hundred dollars. Moss then returned to his car and drove to the Fourth District Police Station. The substance tested positive for crack cocaine.

 On November 16, 1992, Officer Moss returned to the 3900 block of Fourteenth Street, this time wearing a small tape recorder (Nagra). He met with Mr. Douglas and had a brief conversation. Moss asked Mr. Douglas if he had seen Mr. Johnson. Douglas responded that Mr. Johnson had just left. The two men then conversed briefly about job opportunities at the United Parcel Service office in Burtonsville. (Officer Moss' Nagra tape recorder recorded this conversation.)

 Officer Moss next saw Mr. Douglas on November 25, 1992, from an observation post. He identified all target suspects, including Mr. Douglas, and they were arrested.

 Mr. Douglas was subsequently indicted for unlawfully, knowingly and intentionally distributing a mixture and substance containing a detectable amount of cocaine base, also known as crack. On May 12, 1993, Mr. Sussman, defense counsel for Mr. Douglas, wrote a letter to Mr. Glenn Ivey, the prosecutor handling the case at that time. In the letter, Mr. Sussman asked Mr. Ivey to confirm his understanding that the Government had no tapes. Mr. Ivey never responded to Mr. Sussman's letter.

 Mr. Stephen McCool subsequently assumed responsibility for this case from Mr. Ivey. Mr. McCool learned of the tapes on July 9, 1993, immediately informed Mr. Sussman of their existence and invited him to inspect the tapes. Mr. Douglas comes now before this court seeking a new trial on the basis of prejudicial prosecutorial misconduct. The court analyzes Mr. Douglas' claims and their merits.


 Mr. Douglas argues that the prosecutor's deliberate and prejudicial misconduct denied him a fair trial. Defendant's Motion-I at 6, 9,12. *fn1" Mr. Douglas argues four points of prosecutorial misconduct: (1) the discovery delay, (2) the introduction of hearsay testimony during direct examination and the summation rebuttal, (3) the improper reference to the defendant's ethnicity, and (4) the introduction, at trial, of photographs obtained pursuant to an illegal seizure. The court analyzes each claim in turn.


 Mr. Douglas asserts that the government's initial failure, and ensuing delay, in disclosing its videotape and audiotape to defense counsel was a flagrant violation of its discovery obligations under Fed.R.Crim.P. 16(a)(1)(A) and 16(a)(1)(C). *fn2" The government readily concedes this point. *fn3" Fed.R.Crim.P. 16(d)(2) provides several possible sanctions to enforce the discovery rules. These include granting a continuance, permitting the other party to discover or inspect the evidence, and suppressing the evidence. Fed.R.Crim.P. 16(d)(2). Mr. Douglas moved to suppress the videotape, audiotape and DEA-7 (drug chemical analysis). *fn4" The court denied his motion. *fn5" Mr. Douglas argues that the court's refusal to suppress the evidence overlooked the government's disregard for his discovery rights, prejudiced his substantial rights, and denied him a fair trial. The court cannot agree.

 "Relief for violations of discovery rules lies within the discretion of the trial court." United States v. Rodriguez, 799 F.2d 649, 652 (11th Cir. 1986). Accord Northrop v. McDonnell Douglas, 243 U.S. App. D.C. 19, 751 F.2d 395, 399 (D.C. Cir. 1984) (deferring to trial court's discretion in discovery sanctions). The trial court's discretion, however, is influenced by a principle of restraint. The court should impose the "least severe sanction necessary to ensure prompt and complete compliance with its discovery orders." United States v. Turner, 871 F.2d 1574, 1580 (11th Cir. 1989), cert. denied, 493 U.S. 997, 107 L. Ed. 2d 548, 110 S. Ct. 552 (1989). See generally United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir. 1985).

 Mindful of this principle, the court evaluates four factors: (1) the reason for the violation (delay), (2) any bad faith by the violating party, (3) whether the defendant suffered any prejudice, and (4) the feasibility of curing the prejudice with a continuance. United States v. McCrory, 289 U.S. App. D.C. 178, 930 F.2d 63, 69-70 (D.C. Cir. 1991), cert. denied, 116 L. Ed. 2d 788, 112 S. Ct. 885 (1992); United States v. Mavrokordatos, 933 F.2d 843, 847 (10th Cir. 1991); United States v. Christopher, 923 F.2d 1545, 1554-55 (11th Cir. 1991). The court considers each factor in light of the record.

 1. Reason for Delay

 The Government characterized its failure to respond to Mr. Sussman's letter of May 12, 1993, as an "honest mistake." Motions Hearing-II at 17. *fn6" The court accepts the Government's representation that the mistake was an "honest" one. Nevertheless, the Government's failure to respond to defense counsel's letter, especially in regards to such an important matter, betrays flawed procedures and a reckless disregard for the defendant's discovery rights. The Government's negligence, therefore, is the only reason -- albeit a bad one -- for the delay. *fn7"

 2. Bad Faith

 This court held a hearing *fn8" pursuant to Mr. Douglas' Motion for Discovery Sanctions. Mr. Ivey appeared responded to the court's questions at the hearing. Mr. Ivey knew that the tapes existed and failed to provide them to the defense. Motions Hearing-II at 17. He also failed to respond to Mr. Sussman's letter in writing, although he recalls talking with Mr. Sussman on the telephone (but not about the tapes). Id. Finally, Mr. Ivey stated that his failure was not motivated by any bad faith or a desire to "sandbag" the defendant. Id. at 18. It was, he claims, an "honest mistake" and an "oversight." Id. at 17, 19.

 The court finds no reason to disbelieve Mr. Ivey's statements that there was no wilful misconduct. He was credible and accepted responsibility for his mistake. There is, of course, no question that Mr. Ivey was negligent. Negligence, however, is not necessarily polluted by the stain of bad faith. See Unigard Security Insurance Company, Inc. v. North River Insurance Company, 4 F.3d 1049, 1069 (2d Cir. 1993). Indeed, the court's finding is supported by Mr. McCool's ensuing conduct: upon assuming the case, he immediately informed Mr. ...

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