USCA1 Opinion
August 12, 1994 [NOT FOR PUBLICATION]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-
