USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
Nos. 93-1276
93-1576
UNITED STATES OF AMERICA,
Appellant,
v.
NOEL FEMIA,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
____________________
Before
Torruella and Stahl, Circuit Judges,
______________
and DiClerico, Jr.,* District Judge.
______________
_____________________

Paula J. De Giacomo, Assistant United States Attorney, with

____________________
whom A. John Pappalardo, United States Attorney, and Heidi E.

___________________
_________
Brieger, Assistant United States Attorney, were on brief for
_______
appellant.
James E. Carroll, by Appointment of the Court, with whom
_________________
John J. O'Connor and Peabody & Arnold, were on brief for
_________________
__________________
appellee.

____________________
November 18, 1993
____________________
____________________
*

Of the District of New Hampshire, sitting by designation.

TORRUELLA, Circuit Judge.

______________

The government appeals from

a district court pretrial order suppressing the testimony

central

witness in

Femia for
U.S.C.
order
rights,

the prosecution

various drug
3731.

to

crimes.

The district

remedy a
resulting

We

of defendant-appellee
have jurisdiction

court suppressed the

perceived violation
from

the

of its

under 18

testimony in

of Femia's

government's

Noel

due process

allegedly

grossly

negligent destruction of tape recordings of conversations between

the witness
follow,

and other

we reverse

and

co-conspirators.
remand with

For

the reasons

directions

to vacate

that

the

suppression order.
I
I
In

the

summer

Administration ("DEA")

of

entered an

metropolitan Boston cocaine

Public

Service

DEA

government
LaPlante

on-going

("Triple

of the

Enforcement

investigation of

X"),

LaPlante,
informant

three founding

who

was

in

exchange

informed the DEA

also

which

was

being

that Femia and

investigation, over

a period

secretly tape-recorded conversations

of

plea

The

Triple X,

bookkeeper,
a

"Triple X

members of

its

for

Perea were the two suppliers of cocaine

the

Drug

Ashland, Massachusetts Police Department.

recruited one

Christopher

the

organization known as the

Corporation"

conducted by the

1985,

as

agreement.1

co-conspirator Benhur

to Triple X.
several months,

As part of

LaPlante

with various employees

and

____________________
1 The other two founders allegedly
Intinarelli.

were Alan Stone

and Edward

-2-

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
multiple

October 3, 1986,

count

indictment

distribute

cocaine,

distribute,

and

respectively, 21
The

various drug
the other

charging

possession
aiding

U.S.C.

indictment also

conspirators,

a federal

crimes.

The

Femia

returned a

with conspiracy

cocaine

with

abetting,

846,

841(a)(1), and 18 U.S.C.

eight

are

in

intent

and

charged

whose cases

of

grand jury

other

not part

violation

defendants
of

eight defendants

by

trial or guilty

to

of,

2.2

and

this appeal,

government secured the

to

co-

with

conviction of
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
one

of Femia's alleged co-conspirators.

physically stored
referenced
Special

in each

in Perea's

to the

Stone

and

file.

The

The LaPlante tapes were

Perea file

Femia files.

was cross-

According to

DEA

Agent Albert G. Reilly, the cross-reference was intended

to indicate that

the

for Perea, Femia, and Alan Stone,

the cases were connected and

file pertained to the

other cases.

intent that an agent closing

that the evidence

Apparently,

it was

the Perea file would not order

the routine destruction of evidence

in the file until all cross-

referenced cases were closed as well.

____________________
2 A racketeering charge for violation of 18 U.S.C.
dismissed.
-3-

1962(c) was

On
Lively,

October 8, 1987, a newly-assigned DEA agent, Albert

authorized the

destruction of

contained in the Perea file.

a notation

in the

all

the LaPlante

tapes

On that same day, Agent Lively made

Femia file

that "this

case

is pending

the

arrest and prosecution of Femia."

The
1992.

government finally

apprehended

Femia in

July of

As a result of requests for information discoverable under

Federal Rule of Criminal Procedure

U.S. 83 (1963),
had been

16 and Brady v. Maryland, 373

_____
________

the government learned

destroyed.

Apparently,

that the LaPlante

the destruction was

tapes

a mistake

that occurred because Agent Lively incorrectly failed to heed the

cross-referencing notation
file, which should
Perea's file

tape

caused by

be preserved

According to

recordings

the Perea

have alerted him that the

were to

Femia's case.

linking

were

pending

file

to

tape recordings in
the disposition

Agent Reilly, "[t]he fact

destroyed was

the three-part filing

an

Femia's

inadvertent

system that had

of

that the

oversight

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
Tapes

of the twenty-four original tape recordings.

and transcripts

had been

made

for six

of the

recorded

____________________

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.
-4-

conversations (the
tapes

from Perea's

made for

two other

are available,
Report No.

DEA obtained
counsel).4

copies of
In

the original

addition, transcripts

tape recordings;5 no

however.

six of

Finally, the

copies of

were

these tapes

government provided

DEA

184, identifying the date, person recorded, and, with

respect to some

tapes, an extremely

subject

of

matter

concerning

the

the

tapes

Detective Thomas Kinder

recorded

from

Agent

cursory description of
conversation.6
Reilly

and

was also presented to the

the

Testimony

Ashland

Police

court.

Agent

Reilly contemporaneously monitored the recorded conversations and

Detective Kinder reviewed the tapes.
By

affidavit,

Detective

transcribed seven of the tapes.

Kinder

explained

that

he

Secretaries at the DEA typed his

notes.
his

He verified that the typed transcripts accurately matched

notes and

again

listened

to tapes

transcript was accurate and complete.

to

confirm that

each

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

____________________
4 These recordings occurred November 5, 1985,
27, 1986, and March 18 and 25, 1986.

February 13, 18,

5
These are transcripts of tape recorded
occurred on February 4, 1986 and June 5, 1986.

conversation that

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.
-5-

transcript

version,

he

prepared a

second

transcript

that he

believed was accurate and complete.

Agent Reilly's affidavit
stated

that

he

listened

to

the

is to a

similar effect.

conversations as

they

He

were

recorded, determined that eight of the tapes were relevant to the

investigation, and had

those transcribed by the

Ashland police.

Although the
Ashland

DEA transcribed

police

produce

one of the

another version,

tapes, Reilly
believing

knowledge of the central figures and events in the

had the

that their

investigation

would produce a more accurate and complete transcript.

Both Kinder and
that

they had

Reilly explained

in their

listened to each of the sixteen

not transcribed

and determined that,

tapes which were

given the

resources and

general

conversations that were not specifically relevant to the

core of

the Triple

Agent Reilly

the tapes

X investigation, those

Both asserted

contained any
___

that

investigation's

limited

transcribed.

their opinion

affidavits

that

reference to Femia
indicated that

none

tapes should
of the

sixteen

or his code names

he would

contained

not be

tapes

or numbers.

have ordered

transcripts

made of any conversation in which references were made to Femia.

Femia
the

filed a motion to

alternative, to

suppress the

witness, LaPlante, arguing

dismiss the indictment, or in

testimony

of the

that the destruction of

government

the LaPlante

tapes denied him of material exculpatory evidence in violation of

Brady and its progeny.
_____
court denied

the motion

After a suppression hearing, the district

to dismiss, but
-6-

granted the

motion to

suppress.

This appeal followed.

-7-

II
II
In
ramifications

this

case

we

consider

of the destruction

the

constitutional

by the government

of original

tape recorded evidence pertaining to a criminal defendant's case.

It

is axiomatic that Brady and its progeny established

_____

that a defendant
evidence that the
guilt

has a due process right

to request and receive

government possesses which is material

or punishment.

Id., 373 U.S.

___

at 87.

to his

The Constitution,

however, does not require a prosecutor "routinely to deliver

entire file
U.S.

97, 111

to defense
(1976).

developed a framework
the

area of

counsel."
In

United States v.
______________

recent years

to analyze "what

constitutionally

the Supreme

California v. Trombetta, 467 U.S.

__________
_________

Agurs, 427
_____

Court has

might loosely be

guaranteed access

to

his

called

evidence."

479, 485 (1984) and Arizona v.

_______

Youngblood, 488 U.S. 51, 55 (1988) (each quoting United States v.

__________
_____________

Valenzuela-Bernal,
_________________

458 U.S.

Court's jurisprudence
evidence into
address

possession.

867

divides cases

two distinct

exculpatory

858,

(1982)).

Supreme

involving nondisclosure

universes.

evidence

The

still

Brady
_____
in

and its
the

Youngblood and Trombetta govern

__________
_________

of

progeny

government's

cases in which the

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

evidence destroyed

of

developing rules

through prosecutorial neglect

Trombetta, 467 U.S.

_________

at 486.

As

the Court stated

to

deal

with

or oversight."

in Trombetta,
_________

-8-

"[w]henever potentially exculpatory evidence is permanently lost,

courts face
materials
Id.
___

the

treacherous

task

of divining

import

of

whose contents are unknown and, very often, disputed."

The Court's pronouncements also demonstrate

difference

the

between

nondisclosure
_____________

cases,

which

respect for the

involve

known
_____

quantities of evidence
and

and in which a new

missing evidence cases,

_________________

exculpatory
dismissal

evidence

and

which

trial may be ordered;

implicate only

in which

the

possible

potentially
___________

remedies are

or suppression of the state's most probative evidence.

See id. at 486-87.

___ ___
Trombetta
_________
tripartite
rights

and

Youngblood
__________

test to determine

have been

preserve evidence.

infringed

together

established

whether a defendant's
by

law

See Griffin v.
___ _______

enforcement's

due process
failure

Spratt, 969 F.2d 16,

______

to

21 (3d

Cir. 1992); Jones v. McCaughtry, 965 F.2d 473, 476-77 (7th Cir.),
_____
__________
cert. denied, 113
____________

S. Ct. 360 (1992); United States v. Rastelli,

______________
________

870 F.2d 822, 833 (2d Cir.), cert. denied, 493 U.S. 982 (1989).
____________
In

Trombetta, the Court established two hurdles that a

_________

defendant must

surpass to

missing evidence.

show a

constitutional violation

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
-9-

for

available means.
Trombetta, 467 U.S.
_________
added

a third

at 488-89.7

element

when

In Youngblood,
__________

it held

that

the Court later

"unless a

defendant can show bad faith on

the part of the police,

to preserve

evidence does

denial of

potentially useful
due process of

defendant

who

seeks

to

government's possession
in
it

the law."
suppress

Id.,
__

failure

not constitute

488 U.S. at

evidence

criminal

formerly

58.
in

the

therefore must show that the government,

failing to preserve the evidence, (1) acted in bad faith when

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
by Youngblood and Trombetta is
__________
_________
the district

court properly

required by Brady.8
_____
is that

the missing evidence

inapplicable to his case and that

suppressed LaPlante's

The thrust of Femia's

the Youngblood
__________

test created

analysis

testimony as

argument, we gather,

only applies

to evidence

"of

which no more can be said than that it could have

to tests, the results of which might have
Id., 488 U.S. at 57.
___

been subjected

exonerated defendant."

Here, because defendant requested and the

____________________
7

Although Trombetta
_________
with respect to state
federal agencies.
8

We

note that

discussed the constitution's requirements

law enforcement,

applying

it

applies equally

to

Youngblood rather than a Brady

__________
_____
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
______
_____________
______________
158, 161 (D.C. Cir. 1992).
-10-

government did not furnish evidence that the district court found
to

be material exculpatory

established and Youngblood

__________
excluded,

irrespective

government.

See Brady,
___ _____

of

evidence, Femia contends

that Brady
_____

confirmed that such evidence

the

good

or

bad

faith

373 U.S. at 87; Youngblood, 488

__________

must be
of

the

U.S. at

57.
Femia asserts that

the record evidence

fully supports

the

district

court's

constituted material
found

that the

impeach

tapes

second,

the

that directly

tapes,

at

transcripts or

exculpate

LaPlante

The

very likely

the

are discernible from

statements

that

exculpatory evidence.

LaPlante

LaPlante;

contents

conclusion

tapes

district court

could
least

be used
those

to

whose

copies, contained

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
district court
Supreme
different

incorrectly

were made.

applied

As a result,

Youngblood.
__________

Because

the

the

Court has prescribed different due process standards for

types of

nondisclosed

evidence,

we categorize

each

piece of evidence and separately discuss our resolution under the

____________________

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.
-11-

appropriate

due

process

standard.

We

apply

Youngblood
__________

to

evidence which no longer exists and Brady to exculpatory evidence

_____
in the government's possession.
In
respect

this case, we

to evidence

destroyed

in

bad

find no

that no
faith.

longer exists
As a

improperly suppressed LaPlante's

missing evidence.

due process

With respect

result,

violation with

because it
the

was not

district

testimony on the basis

court

of this

to evidence that exists, we find

that the government complied with its obligation under Brady,

_____
disclosed the
court

evidence.

suppressed

Thus,

LaPlante's

to the extent that

testimony

based

on

it

the district
a

perceived

violation of Brady, it erred.10

_____
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.
that

these

tapes

Femia
contain

claims and the district court found

material

exculpatory

evidence.11

Femia argues that because the copies cannot serve as a reasonable

substitute for the originals -- he allegedly cannot verify
authenticity

or ensure

that no

tampering has

occurred --

their

the

district court properly suppressed LaPlante's testimony to remedy

____________________

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
tape indicates that the
original tape apparently

13, 1986
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."
-12-

the

government's

evidence.

failure

to

disclose

material

exculpatory

We disagree.

No Brady violation has occurred with respect to the six

_____
LaPlante

tapes

that

received copies of
Femia

contends,

were copied

because

these tapes prior to

that

the six

copies

damaged, or inexpertly copied from

know, however,
are entirely
respect to

with any degree

have

contained

may

material

requested and
It is

true, as

have been

altered,

We will never

of certainty whether
of the

the original tapes

irretrievably lost, we can say

might

trial.

the originals.

accurate reproductions
fragments of

Femia

the copies

originals.12
that may

With

have been

no more than that those fragments

exculpatory

evidence.

These

allegedly missing fragments, like the breath and semen samples at

issue in Trombetta and
_________
potentially

exculpatory

Youngblood, can only be characterized

__________
evidence.13

In

this

as

circumstance,

having shown no bad faith by the government, the possibility that

the
tape

copies of the

tapes may have

been altered, or

may have been deleted, provides no

segments of

basis for finding a due

process violation.
____________________

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
_____
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
_________
__________
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.
-13-

We

consider

possesses a transcript.
of poor quality.
DEA transcript of

the

tapes

for

which

Femia

only

Femia complains that the transcripts are

He points to the great discrepancy

between the

the February 13, 1986 tape (tape N-16) and the

Ashland

police version

reflect

important

portion

and

of

next

as

proof that

material evidence.
the

statements

that

the

transcripts do

The loss
were

of

not

the audio

negligently

not

transcribed by law enforcement agents presents the same situation

as the case

in which missing fragments of

been lost when

conversation may have

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

violation

has

district court's decision, no due process

occurred.

transcript evidence
required by Brady
_____

The

allegedly possessing
and its progeny.

statements not transcribed are

the failure to retain that
process

rights

government

because

evidence in bad faith.

has

disclosed

exculpatory value,

The lost audio

the

as

portion and

only potentially exculpatory, and

evidence does not violate Femia's due

the

government

did

not

destroy

the

Youngblood, 488 U.S. at 58.

__________

With respect to those LaPlante tapes for which only DEA

Report No. 184 summaries exist and
of content exists, the district
due process violation because

the tapes for which no record

court clearly erred in finding a

these tapes were destroyed due

the government's gross negligence, not bad faith.

While

the

failure

to

demonstrate that

to

Id.
___
the

missing

evidence in this case was destroyed in bad faith is sufficient to

-14-

reverse

the district

court,

we

note that

Femia

has not

Trombetta's materiality requirement for the missing evidence.

_________
satisfy

Trombetta's
_________

"evidence

must

apparent

both

before the

nature that the

evidence

488-89.

exculpatory

longer

unable to obtain

whether

exist in

any

that

Femia, his

the

any tape

transcribed.

Trombetta, 467
_________

court showed

one considers

form --

allegedly

or those

did not

Kinder provided

destroyed tapes

contained

numbers.

no

Agent Reilly

containing references
The district court

such a

possess

law enforcement destroyed the

and Detective

code names or

was

comparable

for which copies exist

value apparent before

_______________

stating

that

be of

evidence before the district

of the tapes

Agent Reilly

that

destroyed, and

To

standard,

value

available means."

evidence --

tapes.

materiality

exculpatory

evidence was

The

missing fragments
which no

an

defendant would be

any missing

tapes

possess

by other reasonably

U.S. at
that

constitutional

met

to

affidavits

references to

also explained

Femia would

have been

presumably would have found the

destruction to have been in bad faith if it did not credit Reilly

and Kinder's evidence
before

and if the exculpatory

the destruction of the tapes.

n.* ("The

presence or

purposes of the

absence of

value was apparent

Youngblood, 488 U.S. at 56

__________

bad faith

by the

Due Process Clause must necessarily

police's knowledge

of the exculpatory

value of the

police for

turn on the

evidence at

the time

it was

lost or

destroyed.").

finding was made by the district court.

establish the

constitutional

However, no
Femia therefore

materiality of

the lost

bad faith

did not

evidence

-15-

required to demonstrate a due process violation.

We reverse
_______
suppression order.

and remand
______

with directions

to vacate

the

-16-