US v. McDowell
Case Date: 08/12/1994
Court: United States Court of Appeals
Docket No: 93-2084
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August 12, 1994 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ___________________ No. 93-2084 UNITED STATES, Appellee, v. BILLY RAY MCDOWELL, JR., Defendant, Appellant. __________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Raymond L. Acosta, U.S. District Judge] ___________________ ___________________ Before Torruella, Chief Judge, ___________ Selya and Stahl, Circuit Judges. ______________ ___________________ Billy Ray McDowell, Jr. on brief pro se. _______________________ Guillermo Gil, United States Attorney, Jose A. Quiles- ______________ _________________ Espinosa, Senior Litigation Counsel, and Ernesto Hernandez-Milan, ________ _______________________ Assistant U.S. Attorney, on brief for appellee. __________________ __________________ Per Curiam. Billy Ray McDowell, Jr. was convicted of __________ three counts of drug offenses. We affirmed that conviction on appeal. United States v. McDowell, 918 F.2d 1004 (1st _____________ ________ Cir. 1990); see also United States v. McDowell, 957 F.2d 36 ________ _____________ ________ (1st Cir. 1992) (upholding resentencing after remand). Thereafter, in December 1992, McDowell filed a motion for a new trial on the ground of newly discovered evidence, which he claimed was Brady evidence1 unlawfully retained in the _____ hands of the prosecution. This allegedly newly discovered evidence consisted of (1) tape recordings of two conversations which occurred on February 1, 1988 between McDowell and Agent Francisco Sarra, who posed as Franklin Browne, a co-defendant, at the Dallas/Fort Worth airport2 and (2) McDowell's telephone bills for January and February 1988. The district court denied that motion and McDowell has appealed. We affirm essentially for the reasons stated in the district court's opinion and order. United States v. ______________ McDowell, 830 F. Supp. 90 (D.P.R. 1993). We add only the ________ following comments. It is clear that none of the evidence now relied on is newly discovered. That is obviously true for McDowell's own ____________________ 1. See Brady v. Maryland, 373 U.S. 83 (1963). ___ _____ ________ 2. One was a telephone conversation with Agent Sarra pretending to have just arrived at the airport. The second conversation was recorded by a body wire worn by Sarra when he met McDowell at the airport. -2- telephone bills. Moreover, McDowell's claim that the prosecution is responsible for producing McDowell's own telephone bills is not only inaccurate, it is illogical.3 The tape recordings of February 1, 1988 also were not newly discovered. McDowell, himself, testified at his resentencing hearing that, immediately after he was arrested, an agent played him a tape of his conversation with Agent Sarra. Tr. 4/4/91 at 24. He, therefore, knew of that tape's existence prior to trial. And, both the recordings - that of the telephone conversation and the recording from Sarra's body wire - were referred to at trial by Agent Sarra. Tr. 6/27/88 at 565; 567. Even if the government had failed to produce these tapes prior to trial - a concession which it does not make - McDowell knew about both recordings, at the latest, mid-trial, yet did not request copies, complain about any ____________________ 3. McDowell claims that, in support of his new trial motion, he submitted the relevant telephone bills for both his residence and his mobile telephones. And, he argues that the district court misunderstood the collect call to Fort Worth, Texas to which he referred. He says that the relevant call was the collect call to Fort Worth made by co-defendant Browne after co-defendant Darrin Taylor was arrested but _____ before Browne, himself, was arrested. He contends that no ______ charge which could represent that collect call appears on those bills. Even properly understood, McDowell's claim cannot evade the fatal blow that his own telephone bills cannot be newly discovered. In any event, whether Browne did or did not make a prearrest collect call to McDowell does not significantly detract from the quantum of evidence supporting McDowell's conviction. -3- late disclosure, or seek a continuance of trial.4 Brady _____ claims, at least typically, involve "the discovery, after _____ trial of information which had been known to the prosecution _____ but unknown to the defense." United States v. Agurs, 427 _____________ _____ U.S. 97, 103 (1976) (emphasis added). In any event, there is scant, if any, exculpation in the February 1 recordings.5 McDowell claims that the recorded telephone conversation is exculpatory because it shows that the $4,000 amount was suggested by Sarra. Even assuming this is exculpatory, that is exactly what Sarra testified to at trial. McDowell also claims that the recording reveals that Sarra testified falsely about referring to a package that McDowell was to pick up. While there is no specific reference to a package, McDowell's own description of the recorded conversation has Sarra telling McDowell to "beep me just before you come by and get this." Appellant's brief at p. 25. Rather than revealing perjury, McDowell's description of the recorded conversation and Sarra's trial testimony, ____________________ 4. Indeed, although McDowell claims (inaccurately) that he did not know of the tapes' existence until resentencing, he did not even complain at resentencing in April 1991 about any allegedly late disclosure. Rather, it was not until December 1992, after his unsuccessful appeal from the resentencing, that McDowell first raised this claim. 5. McDowell makes no claim about the substance of the conversation picked up by the body wire. After listening to that tape, the district court stated that that conversation is unintelligible due to background noise. Agent Sarra said the same thing at trial. -4- while not mirror reflections, seem wholly consistent. It, therefore, appears to have little, if any, impeachment value. In sum, even assuming that the prosecution failed to disclose the tape recording of the February 1 telephone conversation between McDowell and Sarra, that evidence was not material, i.e., there is no "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) (opinion of Blackmun, J.); ______ see also id. at 685 (White, J., concurring). ________ ___ Finally, there was no abuse of discretion by the district court in declining to hold an evidentiary hearing on the new trial motion.6 See United States v. Panitz, 907 ___ ______________ ______ F.2d 1267, 1273-74 (1st Cir. 1990) (reciting abuse of discretion standard for district court decision whether to hold an evidentiary hearing); United States v. Slocum, 708 _____________ ______ F.2d 587, 600 (11th Cir. 1983) (same). Affirmed.7 _________ ____________________ 6. The district court, in fact, listened to the tape recordings submitted by McDowell with his new trial motion. McDowell apparently contends, however, that the district court should have also heard live testimony. 7. The facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. McDowell's request for oral argument, therefore, is denied. Loc. R. 34.1(a). -5- |