II. STATEMENT OF FACTS
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.
III. PROSECUTORIAL MISCONDUCT
Mr. Douglas argues that the prosecutor's deliberate and prejudicial misconduct denied him a fair trial. Defendant's Motion-I at 6, 9,12.
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.
A. DISCOVERY DELAYS
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).
The government readily concedes this point.
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).
The court denied his motion.
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.
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.
2. Bad Faith
This court held a hearing
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. Sussman of the tapes. Motions Hearing-I at 110, 112;
Motions Hearing-II at 23.
A court should pause before imposing a sanction in the absence of bad faith. See United States v. Augello, 451 F.2d 1167, 1170 (2d Cir. 1971) (refusing to suppress officers' testimony in absence of bad faith or negligence in their destruction of tapes); Turner, 871 F.2d at 1580 (admitting testimony of officer concerning taped conversations despite government's failure to provide tapes to defense, due to the absence of bad faith).
3. Prejudice and Potential Cure
Mr. Sussman argues that if the government had disclosed the tapes in time, "no doubt the quality of the defense would have been altered." Defendant's Motion at 6. Mr. Sussman contends that his defense strategies were severely limited and his efforts largely misfocused. Id. at 7. For these reasons, Mr. Sussman argues, the admission of the tapes severely prejudiced Mr. Douglas. Id. at 8. The court has already determined that the delay did not prejudice the defendant. See Motions Hearing-II at 26. Nevertheless, an analysis of the potential cure (a continuance) for any such prejudice will serve as an instructive examination of the court's finding.
A continuance is the preferred sanction for a discovery delay. Euceda-Hernandez, 768 F.2d at 1312. In Euceda-Hernandez, the trial court had suppressed certain post-arrest statements made by the defendants to federal agents because the prosecutor failed to provide defense counsel with the substance of the statements until three days prior to trial. Id. at 1308. The appeals court reversed: "By suppressing the Government's evidence rather than granting a continuance or recess, a trial judge may achieve a speedier resolution to a criminal case and reduce his docket, but he does so at the expense of sacrificing the fair administration of justice and the accurate determination of guilt and innocence." Id. at 1312.
In United States v. White, 846 F.2d 678 (11th Cir. 1988), cert. denied, 488 U.S. 984 (1988), the court declared that any prejudice caused by the Government's late (discovery) production can be allayed by granting a continuance. Id. at 691. A continuance, the court explained, provides defense counsel with additional time in which to alleviate the prejudice. Id. at 692. The suppression of evidence, therefore, works against the goals of Rule 16, which is the fair administration of justice. Id.
Mr. Sussman did not go so far as to request a continuance. Instead, he declared, "I don't think a continuance is going to help me along." Motions Hearing-I at 118. This declaration is antithetical to Mr. Sussman's concerns of "substantial prejudice" to Mr. Douglas. Several courts have held that when defense counsel fails to request a continuance after a discovery delay, such failure erases any potential prejudice created by the delay. See De Laval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259, 263 n.6 ("Any claim of prejudice (surprise) is belied by the fact that Henry Lift's counsel did not request a continuance . . ."); see also Berroyer v. Hertz, 672 F.2d 334, 338 (3d Cir. 1982). Mr. Sussman not only failed to request a continuance, but characterized it as "useless." On the one hand, Mr. Sussman asserts that a continuance would not be helpful. On the other hand, he maintains that the delay has substantially prejudiced his client. In conjunction, these representations carelessly abandon the boundaries of reason and consistency.
The court has analyzed the four factors to consider when imposing discovery sanctions and finds that although the Government had no good reason for the discovery delay, there was no bad faith. The court also finds that Mr. Sussman's failure to request a continuance belies any claim of prejudice to Mr. Douglas. The court therefore rejects Mr. Douglas' claim of prejudice from the Government's discovery delay.
B. HEARSAY TESTIMONY
1. Direct Examination
Mr. Sussman argues that the prosecutor elicited hearsay testimony (from Officer Moss) that area citizens had complained about narcotics activity in the 14th and Sheperd Streets, N.W. area.
Defendant's Motion at 8; Trial Transcript at 25-27. Federal Rule of Evidence 801 defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Although the testimony was hearsay, it was admissible under the particular circumstances.
Such out-of-court statements do not constitute hearsay when used to explain the origins of a police investigation. United States v. Brown, 923 F.2d 109, 111 (8th Cir. 1991). cert. denied, 116 L. Ed. 2d 80, 112 S. Ct. 110 (1991); United States v. Vizcarra Porras, 889 F.2d 1435, 1439 (5th Cir. 1990), cert. denied, 495 U.S. 940, 109 L. Ed. 2d 520, 110 S. Ct. 2192 (1990); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985), cert. denied, 474 U.S. 1081, 88 L. Ed. 2d 890, 106 S. Ct. 848, 106 S. Ct. 849 (1986); United States v. Scott, 678 F.2d 606, 612 (5th Cir. 1982), cert. denied, 459 U.S. 972, 74 L. Ed. 2d 285, 103 S. Ct. 304 (1982).
The prosecutor elicited testimony regarding the citizen complaints in order to explain why the police investigation of Mr. Douglas began. See Trial Transcript at 25. The prosecutor was brief in his questioning and did not attempt to move beyond the limited purpose allowed by this exception.
The testimony was admissible. See United States v. Gonzalez, 967 F.2d 1032, 1034-35 (5th Cir. 1992); United States v. Lazcano, 881 F.2d 402, 407 (7th Cir. 1989); United States v. Mancillas, 580 F.2d 1301, 1309 (7th Cir. 1978), cert. denied, 439 U.S. 958, 58 L. Ed. 2d 351, 99 S. Ct. 361 (1978). The court must, therefore, reject Mr. Douglas' contention of prosecutorial misconduct in this regard.
2. Summation Rebuttal
Mr. Douglas argues that the prosecutor improperly used this hearsay testimony (citizen complaints) during his summation rebuttal.
Defendant's Motion at 11; Trial Transcript at 155. The Supreme Court has declared that a defendant needs more than inappropriate prosecutorial comments to reverse his conviction. United States v. Young, 470 U.S. 1, 11, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985). The inappropriate comments must amount to prejudicial error within the context of the entire trial. Id. at 11-12. The court finds that Mr. Douglas' claims fails, even at the first inquiry.
Mr. Sussman's summation invited the prosecutor's reference to hearsay citizen complaints in his rebuttal summation. A prosecutor may respond to the arguments and evidence of the defense. United States v. Robinson, 485 U.S. 25, 33, 99 L. Ed. 2d 23, 108 S. Ct. 864 (1988). Accordingly, in assessing a prosecutor's comments, "the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." Young, 470 U.S. at 12; see also Darden v. Wainwright, 477 U.S. 168, 181-82, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986).
Mr. Sussman's summation portrayed the Government's investigation of Neil Douglas as random, baseless and almost dictatorial. The following excerpt captures the spirit of his argument:
But there's another side about our government, and a side that you see all too often. It's the side of our government of what happens when the government turns against the citizen. When the government targets someone, that's the danger of government. . .
And its pretty clear from the record that Gregory Moss is trained for a couple months, and be's sent out on the street with a picture. After two months of training he's told by the brass, by his superiors, he names a captain, a lieutenant up there, "Get me Neil Douglas." Get Neil Douglas. That's his job. It's a dangerous situation to begin with when that's how we start an investigation. . .
[Gregory Moss is] part of the people who see things -- he makes his conclusion before he starts. "Neil Douglas is targeted and Neil Douglas is a dope dealer. . . "
The prosecution is entitled to respond to this "opening salvo," and that is precisely what Mr. McCool did:
And let's talk a little bit about how this whole thing got started, and let's be clear about a couple of things, okay? Let's not for an instant think that the testimony from that witness stand in any, shape or form suggested that captains and lieutenants in the Fourth District rode around up on Fourteenth and Shepherd, shot pictures of people, and said, "Okay, we're going to make these folks drug dealers, and we're going to go out and get them." Is that the testimony that came from that witness stand? What was the testimony? The testimony is, is the people out there at Fourteenth and Shepherd have bad enough, all right? They've had it up to here with the drug dealers out there, and it's about time to stop. And what did they do? They complained. And it's their right to complain, because they pay taxes in this city, and those taxes fund that police department. And what can they expect for their tax dollars? They expect action.