Académique Documents
Professionnel Documents
Culture Documents
No. 95-1826
Appellee,
v.
RICHARD MARSHALL,
Defendant, Appellant.
____________________
____________________
Before
____________________
Whitehouse, United
United
States
States
Attorney,
Attorney, and
with
Zechariah
Chaf
___________________
_______________
____________________
LYNCH,
LYNCH,
Circuit Judge.
Circuit Judge.
______________
The
Providence
police
arrested Richard
Island hotel
distribute
room for
and
possession of
conspiring
to
deadlocked on
trial,
limited
do
resulted in a guilty
charge
verdict.
heroin with
the
same.
intent to
Initially,
to the
in a Rhode
of
intent charge.
A second
possession with
intent,
to 72
months' incarceration.
brought about
by a
denial of his
motion to
police produce
have
been in
series of errors:
the district
was
court's
to make
the
the hotel
room, and
its limitation
of cross
grand
jury
and at
trial;
and improper
statements
by the
We reject these
claims
the most
I.
We outline the
to set the
the
overall sufficiency
Marshall
challenges
support the
the
trial judge's
of
the evidence.
sufficiency
of
To the
the
evidence
-22
extent
to
on the
motion to suppress,
most
favorable
to
the evidence is
the
described in the
government.
light
United States
______________
v.
On the
the
suspected there
was drug
1994, a Providence
the manager of
activity in
Richard
Marshall
suspicions.
("DEA")
and
The
federal Drug
was brought
background check
on
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
traffic
the
did
with
the hotel,
heavy flow of
identified
the
his
While
car as a Mercedes
Benz on the
Marshall
appeared.
asked if they
could speak
with him.
themselves and
Marshall agreed,
and
the activity
pointed
to a
Toyota, which
had a
different license
permission to look
-33
plate
registration card.
in the car;
Marshall
agreed,
asked, Marshall
denied ever
When
but when
The officers
had his
if he minded
Marshall
asked Marshall
room key,
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
the
There
become
paper bag
co-
protruding
was,
with a
II.
Marshall
asserts
and
that the
exculpatory in at
show that he
he
had
micro-cassette
the
tape
that
would exculpate
least two
and Dantzler
him.
-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
from
the
Amendment
officers'
version
claims.
There
whatever his
--
is
conversation with
relevant
some
room
differs radically
to
for
his
Fourth
skepticism:
were in
his room, and on the motion to suppress, the court found that
he had consented to
his room
______
obligated
to
produce exculpatory
evidence to
a defendant.
he recorded
they
were
stage.
his conversation
promoting and
that
he
left the
a concert
tape
recorder
used
he said,
his telephone.
He
to keep track
of whether
Dantzler
been running when he returned to the room and that one of the
room
tell
were present in
different story.
DEA
Marshall's hotel
Agent Mansolillo
and
a tape
recorder
in the room.
"might have
picking
officer,
been a tape
it up
or
recorder."
saying anything
Detective
about
it.
thought
Lauro denied
The
fourth
-55
length by defense
seen
a tape
counsel, was
recorder.
never asked
The officers
whether he
did seize
had
some small
recorder.
Agent
other seized
inventory.
examined
tape.
Mansolillo took
court
asked
the
he replied that he
do so.
the drugs
and
not prepare an
defense counsel
not find a
tape recorder or
prosecutor
whether
recorder;
of
Later, both
The
control
he
had
had not.
The prosecutor
did check,
but
prosecutor
did not
it
did
officers
not have.
about
Defense counsel
the tape
recorder
did
and
cross-examine the
argued the
missing
evidence argument
has two
Marshall's
predicates:
exculpatory
-66
Marshall
does
not argue
possess
faith.
does not
even argue
that
government did
it in bad
the government
the
that the
room.
He
removed the
tape
He simply says
that
it, the agents were the ones who seized the evidence, and the
whether certain
In
tape recordings
consequences of the
was the
of
the tapes.
27
F.3d
1515 (10th
Cir.
1994), which
taped
produce
certain calls
is
more pertinent.
and that
the calls.
failed to
Id. at 1526-27.
___
The
court
concluded
that the
defendants
"have
presented
insufficient evidence
that the
government either
failed to
faith.
to
The fact
produce any
existed."
Id.
___
convincing
at 1527.
evidence that
-77
have failed
these tapes
in bad
ever
was based on
an equivocal
that he attempted
Like the
court in Pedraza, we
_______
that
there
existed.
government
was reason
to
believe
the recorder
and
tape
which the
there
is
defendant.
no
unfairness
It
is difficult for
the existence of
in
placing
the
burden
on
the
the government to
disprove
to claim
that
something
existed and
was
exculpatory
but that
the
consistent with
is
undisputed
defendant's
that is,
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
proceeding
would have
been
different."
United States
_____________
v.
Defendants also
constitutional
violation
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
such
evidence
"exculpatory
value
that
comparable
an
defendant would be
by other
reasonably
was
be "of
unable to obtain
available means."
Id. at 489;
___
Youngblood,
__________
where
the
potentially
9 F.3d at
993.
In Arizona
_______
burden on a defendant
exculpatory
evidence
in
488
U.S. at
58.
has
on
the defendant
to show
the
been
in bad faith
Under this
is
v.
evidence existed.
burden
That
The
court
related
evidentiary claim
that
the district
cross-examination of Detective
consent to have
arguments: (1)
room,
and therefore all evidence that came from the room was seized
contentions require
Both
the facts be
The district
-99
Marshall's version.
reversed
unless
clearly
erroneous.
United States
______________
can
be no
credibility
clear error
of the
where factual
witnesses who
findings turn
appear before
v.
There
on the
the judge.
Defendant
issue
having consented,
regarding
the
seized
there
is
evidence.
no Fourth
Amendment
United States
______________
v.
______
The
testimony
district
court
also
disbelieved
Marshall's
There being no
to the
officers' request
to
enter his
court's
conclusion that
there
was no
room, the
de
district
facto arrest
is
For
motion
believe
to
suppress the
the
testimony
drugs.
of
the
The
trial judge
officers,
who
chose to
provided
sufficient predicate.
Marshall
discretion
in
argues
refusing
to
that
hear
the
court
his
motion
abused
to
its
suppress
his room.
The district court found that Marshall had waived this motion
We agree.
-1010
Marshall
filed the
motion to
suppress statements
also
did
not
the date
object
to
to raise the
the
statements
due.
when
Because Marshall
Marshall
they
were
failed properly
it.
add
We
a result,
under
had there
because
not been
the
court
Marshall.
determined
the
Thus, even
would have
consent
issue
failed
against
slightly
grand jury about exactly where the bag of drugs was found and
about
the
sequence
cross-examined
instance of
testimony,
suggest
found
of
actions
by
in the
room.
The
on the
point.
agent was
in the agent's
about where
police
thoroughly
that this
in the record
The dispute
Providence
It appears
confusion or mistake
perjury.
is an
grand jury
before us to
the drugs
were
-1111
were under
the mattress or
not does
not
Even
if there
were
an error
in
the grand
jury
fair
trial,
and
preliminary stage
the
verdict
harmless now.
renders
any
error
at
the
To
understand
prosecutor's summation,
must
first
be recalled.
Marshall's
objection
This
is Marshall's second
of a charge
to
the
of the
case
trial; in the
of conspiracy to
distribute drugs.
Marshall
says
that
the
prosecutor
improperly
the
witness.
The first
two
While
"conspiracy,"
the
and
prosecutor
never
referred
never
to the
used
prior
the
trial
word
or
that he
did so in
essence with
following argument:
together
and
. . . .
-1212
this
is
what
were flown in
the
brought the
drugs in
from Chicago.
those
drugs, the
the
wholesale
of
Marshall relies
F.2d 1316
the trial
due to
three trial
statement
appeared
made
to
conflict with
argument
by
is not
prosecution
errors.
refer to
the
did
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
previously
evidence.
862
to
Marshall's
we think
the
presence of
the
"with intent
to distribute"
portion of
the possession
charge.
The
permissible
and
were
prosecutor's
inference from
not a
words
suggested,
we
reference to
the
think,
at trial,
conspiracy charge.
States
______
The
United
______
Even
to
the
conspiracy
charge,
they
were
not
sufficiently
-1313
The
witness
is
argument
based on
about
three
improperly
portions
vouching
of the
Marshall, in
effect,
come in
you
has
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
. . . .
story
the
way
it
truly
unfolded . . . .
. . . .
in choosing between
about what
police
if
could have
Steven Cross,
done
these
these
the
men,
who
here and
would
tell you
deliberately come
the truth.
Yes, you
in summation
Detective
made a
the
Mansolillo
Grand Jury.
People
Defendant
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.
Cir.
1993).
amount to
These
first two
improper vouching.
75 F.3d
59, 62
vouching
for
(1st
comments
we think,
Cir. 1996)
prosecutor to
do not,
say
-1414
(holding
that it
that jury
should
is
not
come to
believe
The
vouching.
We
last statement
assume what
is
simply too
garbled to
He said, as
opposite.
no complaint.
Even if
inappropriate
comment
were
inappropriate,
reversible
outcome
an
error unless
of
Carrasquillo,
____________
the
70
it is
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
Defendant has
to say
be
Cartagena__________
These
putting
Of course he
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
constant qualification.
sometimes be close.
jury.
prosecutor's argument
as he
line, of
Not every
emphasize
prosecutor to
goes
along
course, may
thinks
the
line
in turn, enables
has been
the court to
crossed,
and
instruct the
-1515
is
called for.
There is no
96 F.3d at 550.
See Grabiec,
___ _______
-1616