Appeal of convictions for conspiracy to distribute narcotics in violation of 21 U.S.C. § 841(a)(1), and, as to appellant Menghi, for use of a communication facility to facilitate the commission of a felony as prohibited by 21 U.S.C. § 843(b). Convictions affirmed; appellant Zidbeck's sentence is vacated and remanded for resentencing after determination whether appellant would benefit from treatment under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026.
Before Moore, Mansfield and Mulligan, Circuit Judges.
The defendants Randy Hilgert, Joseph Menghi and Debra Zidbeck have appealed judgments of conviction entered on June 6, 1980 after a trial before Judge Warren W. Eginton. The three appellants (a fourth defendant was acquitted) were convicted by a jury of conspiracy to distribute cocaine in violation of Title 21, United States Code, § 841(a)(1). Menghi was also convicted in a second count against him of using a communication facility to facilitate the commission of a felony under the laws of the United States as prohibited by 21 U.S.C. § 843(b). Menghi was sentenced to one year on each count; execution was suspended on the second count with probation of one year to commence upon the completion of the count one sentence. Hilgert was sentenced to one year imprisonment. Zidbeck was sentenced to three years imprisonment, but execution was suspended and she was placed on probation for three years. The sentencing judge found that Zidbeck would not be amenable to treatment under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026. The convictions are affirmed; however, Zidbeck's sentence is vacated and the matter is remanded for a further determination whether she is entitled to resentencing under the Youth Corrections Act.
The only argument of any substance addressed to the convictions on this appeal is appellant Menghi's contention that he was denied due process and effective assistance of counsel by reason of the Government's failure to timely respond to defendant's motion to produce evidence favorable to himself as required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). It is important to note that all Brady material which was requested was provided prior to trial except the Massachusetts Drug Enforcement Agency (DEA) file pertaining to the Government informant Douglas Reuben, who was the intended purchaser of the cocaine and the chief prosecution witness at trial. This file was provided after he had been cross examined but prior to the termination of the Government's case.
It is undisputed that Reuben's credibility was crucial to the Government's case. Appellant Menghi argues that the DEA file contained important impeachment information which, because of its untimely disclosure by the Government, defense counsel was unable to investigate or use effectively to discredit Reuben's reliability. Specifically, Reuben testified that the appellants had attempted to sell him cocaine. On cross examination by Menghi's counsel, he admitted that he had sold marijuana and was a user of cocaine and amphetamines, but denied that he had ever sold cocaine. However, the Massachusetts DEA file, which covered the cocaine trafficking of two dealers unrelated to this case, contained a memorandum which revealed that one suspect had obtained "multi-ounces of high quality cocaine from a source named "Doug' from Beverly, Mass." The third page of that report identified "Douglas Armand Reuben" as a jewelry salesman in Beverly Farms, Massachusetts, and stated that, according to file checks, he had "formerly sold multi-ounces of cocaine." This information contradicts Reuben's denial of cocaine sales on cross examination.
In United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the Supreme Court adopted three guidelines for determining whether evidence is to be considered material for the purpose of invoking the Brady rule. A strict standard is applied if the prosecution "is or should be aware that it is presenting perjured testimony." United States v. Provenzano, 615 F.2d 37, 47 (2d Cir.), cert. denied, 446 U.S. 953, 100 S. Ct. 2921, 64 L. Ed. 2d 810 (1980). That test requires a conviction to be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. at 47. The Government's case here did rely upon the testimony of Reuben. Although his credibility was clearly in issue, the Government elicited no perjurious testimony from him. Reuben's denial was brought out and developed only on cross examination. No part of the Government case rested in any way upon Reuben's sale or non-sale of cocaine on prior occasions. Hence Agur's strict standard for Government use of perjured testimony does not come into play.
The same strict test of materiality applies if the defendant has made a specific request for the information withheld by the Government, United States v. Agurs, supra, 427 U.S. at 104-06, 96 S. Ct. at 2397-2398; United States v. Provenzano, supra, 615 F.2d at 47. An examination of the relevant requests in the motion for Brady material made by the defendant and supplemented on October 11, 1979 reveals that they were no more specific than those characterized by Judge Mansfield in Ostrer v. United States, 577 F.2d 782, 786 (2d Cir. 1978), cert. denied, 439 U.S. 1115, 99 S. Ct. 1018, 59 L. Ed. 2d 73 (1979) as "boilerplate."*fn1 Since only a general request was made in this case, the appellants' burden under Agurs is to show that the undisclosed evidence, when "evaluated in the context of the entire record," 427 U.S. at 112, 96 S. Ct. at 2401, creates reasonable doubt about his guilt.
In determining whether the Massachusetts DEA file would have created a reasonable doubt as to the appellants' guilt we must take into consideration the fact that the file was disclosed to counsel for the defense during the trial. It did not come into the possession of the United States Attorney's Office until May 30, 1980, which, as noted above, was after Reuben had completed his testimony but before the close of the Government's case. Since the file only incidentally referred to Reuben perhaps the delay is understandable. In any event, as soon as the court had made an in camera inspection of the file, it was made available to counsel for defendant Menghi, and was marked on motion of the court as an exhibit. The court ruled that the exhibit could be examined by the jury and explicitly allowed defense counsel to use it in their summations. More importantly, the court repeatedly told defense counsel that they were free to recall Reuben. The offer was never accepted and when the court asked Menghi's counsel why he had decided not to recall Reuben, he responded, "I guess what happened is that we made a decision that it was not worth the effort recalling him or reopening his testimony."
It is also significant that defense counsel made no motion for a continuance when the memorandum in the DEA file was disclosed. On appeal it is now argued that a continuance would not have been effective to allow further investigation and utilization of the information contained in the files. That argument was not advanced to the trial court and rings hollow on appeal, since counsel has failed to establish what further investigation could have achieved. This was not a situation where the disclosed information opens up an entirely new defense theory, see Grant v. Alldredge, 498 F.2d 376, 382 (2d Cir. 1974). Reuben's credibility was always an issue, and on the face of the document defense counsel was certainly in a position to recall Reuben to inquire further into the cocaine sales referred to therein. Counsel chose instead to make no use at all of the document to impeach Reuben on the stand in the presence of the jury. We conclude that earlier disclosure of the DEA file would not have created a reasonable doubt as to appellants' guilt. Counsel made the decision that it was not appropriate to recall Reuben or ask for a continuance. There was no reversible error on the part of the trial court.
The arguments of Zidbeck and Hilgert that there was insufficient evidence to support their convictions of conspiracy fail upon a careful review of the evidence. Viewing that evidence as we must in the light most favorable to the Government, United States v. Costanzo, 581 F.2d 28, 30 (2d Cir. 1978), cert. denied, 439 U.S. 1067, 99 S. Ct. 833, 59 L. Ed. 2d 32 (1979), it is clear that a jury could have found them guilty beyond a reasonable doubt.
Appellant Zidbeck argues that the trial judge abused his discretion by not sentencing her under the Federal Youth Corrections Act (YCA). 18 U.S.C. §§ 5005-5026. The YCA requires that a court explicitly find "no benefit" to an eligible defendant before imposing a sentence other than one under those provisions which authorize commitment to "youth institution(s)." See 18 U.S.C. § 5010(b)-(d); Dorszynski v. United States, 418 U.S. 424, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1974). This requirement was "designed to insure that the sentencing judge exercise his discretion in choosing not to commit a youth offender to treatment under the Act. Such a finding would make unmistakably clear that the sentencing judge was not only aware of the existence of the new Act, but also knew that the youth offender before him was eligible because of his age for the treatment it provided to ...