United States v. Watkins , 33 F. App'x 411 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 20 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3301
(D. Kan.)
BETTY ANNETTE WATKINS, (D.Ct. No. 96-CR-40061-RDR)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL and HALL, ** Circuit Judges, and BRORBY, Senior Circuit Judge
A jury convicted Betty Annette Watkins of conspiracy to possess with
intent to distribute cocaine base and possession with intent to distribute cocaine
base. This court previously upheld her conviction and sentence on direct appeal.
United States v. Watkins, 188 F.3d 520 (10th Cir. Jul. 28, 1999) (unpublished
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Cynthia Holcomb Hall, United States Circuit Judge, Ninth
Circuit, sitting by designation.
opinion), cert. denied, 528 U.S. 1034 (1999). Subsequently, Ms. Watkins filed a
motion for a new trial, arguing she had new evidence showing a federal agent
falsely testified at her trial. The district court denied the motion without an
evidentiary hearing. The district court explained even if the government
knowingly presented the alleged perjured testimony, the jury heard sufficient
independent evidence to uphold the verdict. Ms. Watkins now appeals the denied
motion for a new trial. She argues (1) the government’s use of the alleged false
testimony was not harmless beyond a reasonable doubt, and (2) this court should
reverse the conviction under our supervisory powers regardless of the alleged
false testimony’s effect on the outcome of the case. Our jurisdiction arises
pursuant to 28 U.S.C. § 1291. We affirm.
BACKGROUND
While executing a search warrant, police officers observed Betty Annette
Watkins attempting to flush 16.97 grams of crack cocaine down her kitchen sink.
After a police officer read her the warnings prescribed in Miranda v. Arizona, 384
U.S. 436, 471-72 (1966), Ms. Watkins admitted the crack was hers. Police
arrested Ms. Watkins and transported her to the Franklin County jail. Tom
Walsh, a federal Drug Enforcement Administration agent, and Tim Cronin, a local
police officer, tape recorded a post-arrest interview of Ms. Watkins. According
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to the testimony of Agent Walsh and Officer Cronin, Ms. Watkins identified three
other individuals with whom she was involved in selling crack. Three days later,
Agent Walsh condensed into two paragraphs of a written report what he believed
to be significant from the interview, and then destroyed the tape recording of the
interview. Defense counsel learned of the destroyed tape for the first time during
the trial. Agent Walsh testified destroying the tape was within his discretion
under Drug Enforcement Administration policy. Defense counsel vigorously
challenged Agent Walsh’s credibility during cross-examination and closing
arguments.
At trial, the main witness for the prosecution was Bernard Preston who
testified pursuant to a plea agreement. Mr. Preston testified Ms. Watkins was a
member of a group of at least eight individuals including himself who sold crack
cocaine. The jury found Ms. Watkins guilty of possessing with intent to
distribute 16.97 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
The jury also found Ms. Watkins guilty of conspiring to possess with intent to
distribute fifty grams or more of crack cocaine in violation of 21 U.S.C. § 846.
On a previous appeal, this court affirmed Ms. Watkins’ conviction and sentence
under both offenses. Watkins, 188 F.3d at 520.
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While Ms. Watkins’ first appeal was pending, the Drug Enforcement
Administration released its policy manual to the public for the first time. Ms.
Watkins’ counsel obtained a copy of the manual. Contrary to Agent Walsh’s
testimony at trial, the policy manual does not give agents discretion to destroy
tape recordings of post-arrest interviews. 1 After her initial unsuccessful appeal,
Ms. Watkins filed a motion for a new trial, arguing Agent Walsh’s incorrect
testimony about his discretion to destroy the tape could have influenced the jury.
Rather than holding an evidentiary hearing on the new evidence, the district
court assumed, but did not find, the government knowingly presented perjured
1
The Drug Enforcement Administration Agents Manual states:
A. Rough notes taken by an Agent while interviewing a potential
government witness, an informant, a suspect, or a subject of an
investigation are subject to discovery. Failure to produce these
notes, even due to good faith loss or destruction, could result in
dismissal of the case. Agents will therefore preserve any such notes,
even though their contents have been subsequently reported on a
DEA form 6.
B. The term “notes” includes handwritten notes, original tapes, or other
work papers made during the interview of a potential Government
witness, or any such documents made outside the interview from
which the witness was directly questioned. Original tapes will be
handled as nondrug evidence (see 6663.66).
Drug Enforcement Administration, Agents Manual, § 6211.6.
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testimony about Agent Walsh’s authority to destroy the interview tape. The
district court found even if the government knowingly presented perjured
testimony about Agent Walsh’s discretion, it could not have changed the jury
verdict on either the conspiracy or possession charge. Although Agent Walsh did
provide some additional information, the district court found Bernard Preston
“provided the majority of the evidence concerning Watkins’ association and
involvement in the conspiracy.” Moreover, Officer Cronin corroborated Agent
Walsh’s statements about the interview. The district court found “Agent Walsh’s
credibility was in no way determinative of the defendant’s guilt or innocence.”
The district court also noted Ms. Watkins did not offer any evidence to contradict
the testimony of Agent Walsh, Officer Cronin, or Bernard Preston. The district
court concluded “we are convinced that the evidence at trial ... was so strong that
any evidence concerning the DEA Policy Manual would have been insignificant
and would not have affected the result.” Ms. Watkins now appeals the district
court’s denial of her motion for a new trial.
DISCUSSION
Ms. Watkins argues she is entitled to a new trial because the
“Government’s knowing use of perjured testimony was not harmless beyond a
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reasonable doubt.” 2 Specifically, Ms. Watkins contends if Agent Walsh had not
falsely testified about his authority to destroy the interview tape recording, the
jury might have acquitted her of the conspiracy charge. 3 Due process of law
requires prosecutors to disclose evidence that is “material either to guilt or to
punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Convictions obtained
with the knowing use of perjured testimony “must be set aside if there is any
reasonable likelihood that the false testimony could have affected the judgment of
the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). “Consistent with our
overriding concern with the justice of finding guilt,” we reverse a conviction
upon knowing presentation of perjured testimony “only if the evidence is material
in the sense that its suppression undermines confidence in the outcome of the
trial.” United States v. Bagley, 473 U.S. 667, 678 (1985) (quotation marks and
citation omitted); Smith v. New Mexico Dept. of Corrections, 50 F.3d 801, 827
(10th Cir.), cert. denied, 516 U.S. 905 (1995). The materiality of Brady evidence
2
Like the trial court, we do not address whether the government did in fact
knowingly present perjured testimony. Rather, we assume the government presented
perjured testimony for the purposes of considering whether the false testimony could have
affected the jury verdict.
3
Ms. Watkins concedes Agent Walsh’s allegedly perjured testimony could not
reasonable have affected the jury’s findings with respect to the possession with intent to
distribute charge. Ms. Watkins only questions whether Agent Walsh’s testimony could
have affected the conspiracy charge.
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and its possible effect on the verdict are mixed questions of law and fact we
review de novo. 4 United States v. Rogers, 960 F.2d 1501, 1510 (10th Cir.), cert.
denied, 506 U.S. 1035 (1992). “To make the materiality determination, we view
the suppressed evidence’s significance in relation to the record as a whole.”
Hughes, 35 F.3d at 1252.
Our review of the record as a whole indicates Ms. Watkins’ new evidence
was not material to the jury’s verdict. Bernard Preston provided the majority of
evidence regarding Ms. Watkins’ conspiracy charge. A participant in this
conspiracy himself, Mr. Preston testified Ms. Watkins was affiliated with a crack
dealing street gang. Mr. Preston explained Ms. Watkins regularly traveled to
Kansas City with another member of the group to purchase the group’s crack
supply. Ms. Watkins would store this crack in her home and transfer it to other
group members for resale. Ms. Watkins would also sell crack directly to drug
users. Mr. Preston testified Ms. Watkins supplied as much crack to him as he
4
The government contends we may review the district court’s denial of the
motion for a new trial only for an abuse of discretion. In support of this standard the
government cites United States v. Pearson, 203 F.3d 1243, 1274 (10th Cir.) (“We review
the denial of a motion for new trial for an abuse of discretion.”), cert. denied, 530 U.S.
1268 (2000). “Although we generally review the denial of a motion for a new trial for an
abuse of discretion, we review de novo claims that the prosecution violated Brady,
including the determination of whether suppressed evidence was material.” United States
v. Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994).
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could sell. Moreover, Mr. Preston testified he observed Ms. Watkins sell crack
out of her home to a steady stream of customers. Mr. Preston explained during
afternoons and evenings drug users purchased crack from Ms. Watkins as often as
“every five [or] six minutes.”
Agent Walsh’s additional testimony concerning Ms. Watkins’ post-arrest
interview statements only corroborated Mr. Preston’s more detailed testimony.
Officer Cronin provided an independent account of the post-arrest interview.
Furthermore, in cross-examination and closing arguments, defense counsel
aggressively challenged both Agent Walsh’s decision to destroy the tape and his
credibility. The new Drug Enforcement Administration policy manual evidence
adds little beyond the examination of Agent Walsh already presented at trial.
Because the record as a whole shows “no reasonable doubt about guilt whether or
not the additional evidence is considered, there is no justification for a new trial.”
Agurs, 427 U.S. at 112-13. Therefore, we affirm the district court’s denial of Ms.
Watkins’ motion for a new trial. 5
5
Appellant further contends “Ms. Watkins’ sentence on the possession count
should be vacated if the conspiracy count is vacated, because the sentence on the
possession count was predicated upon the fact that Ms. Watkins had been convicted of
conspiracy.” Because we do not vacate the conspiracy conviction, we need not reach this
issue.
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Ms. Watkins next asks us to reverse her conviction with our supervisory
power over district courts. Ms. Watkins contends “[w]here a federal prosecutor
knowingly elicits perjured testimony from a federal agent, the defendant’s
conviction should be reversed ... regardless of the testimony’s effect on the
outcome of the case.” Our supervisory powers allow us to reverse judgements “as
may be just under the circumstances.” 28 U.S.C. § 2106. However, we reverse
convictions under supervisory powers only with “caution” and “a view toward
balancing the interests involved.” United States v. Hasting, 461 U.S. 499, 506-07
(1983). This balance must not ignore the need for “prompt administration of
justice.” Id. at 509. Furthermore, the exercise of supervisory power must not
amount “to a substitution of individual judgment for the controlling decisions of
[the Supreme] Court.” United States v. Payner, 447 U.S. 727, 737 (1980).
The balance of interests does not require a new trial in this case. Because
new evidence from the Drug Enforcement Administration policy manual could not
reasonably affect the judgment of the jury, a new trial would incautiously delay
the administration of justice. Moreover, the Supreme Court’s Brady
constitutional framework controls our decision. We are unwilling to fashion a
“‘sub-constitutional’” rule which disregards the limitations of law set out by the
Supreme Court. United States v. Gamble, 737 F.2d 853, 860 (10th Cir. 1984)
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(quoting United States v. Meyers, 692 F.2d 823, 847 (2d Cir. 1982)).
For the reasons stated, we AFFIRM the district court’s denial of
appellant’s motion for a new trial.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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