Petition — Miranda v. United States

In The

| MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1975

o—

No. 95-1590

ORLANDO MIRANDA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

IRVING ANOLIK

Attorney for Petitioner

225 Broadway

New York, New York 10007

(212) 732-3050

9307 LUTZ APPELLATE PRINTERS. INC.

Law and Financial Printing

South River, NJ New York. N.Y. Philadelphia, Pa. Washington, D.C

(201) 257-6850 (212) 563-2121 (215) 563-5587 (201) 783-7288

TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved .........

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The Defense .......cccccccccccsccccccccssscesecccesens

Reasons for Granting the Writ:

This Court should grant certiorari and thereafter

should reverse the judgment of conviction and

dismiss the indictment on the grounds that the

prosecution inexplicably failed to account for a tape

recording of an essential conversation made on

March 25, 1974, upon which the entire case turned.

This prejudice was exacerbated by the fact that the

Government deliberately and intentionally withheld

from the defense any notice of the fact that a tape

had at one time allegedly existed of this crucial

conversation. The conversation of March 25, 1974,

therefore, should have been suppressed as requested

ii

Contents

Page

by the petitioner. This Court should act not only

upon the legal principles involved, but also in its

supervisory capacity to insure justice in the federal

CREE cv dnee cn tbkdccccccendesucéccsccsccanions

Il. The Government withheld the identity of “Georgie”

and “Toni” from the defense despite the fact that

both of these women were present at virtually all of

the conversations with the petitioner concerning drug

transactions. The belated revelation of “Georgie’s”

full name toward the close of trial was worthless and

frustrating since the trial court refused to grant a

continuance to permit defense counsel to properly

Dn uc cdduccscueseeweanecbas

lil. The trial court improperly permitted testimony

beyond the period of the conspiracy as alleged in the

indictment. The court erred in not ruling that the

jury could infer that the testimony of “Georgie” and

“Toni” would have been unfavorable to the

Government since they were not called by the

EL “See avicccenueccudeeetcusssbuededs

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28

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iii

TABLE OF CITATIONS

Page

Cases Cited:

Alford v. United States, 282 U.S. 267 2... cece cece eens 30

Berger v. New York, 388 U.S. 41 woe eee ee ee eee ee 22

Brady v. Maryland, 373 U.S. 83)... eee eee eee 3, 26, 27, 31

Bruton v. United States, 391 U.S. 123) wo. cece eee ee eens 10

Collenger v. United States, 50 F.2d 345 (C.C.A. 7) ....... 32

Erber v. United States, 234 Fed. 221 (C.C.A. 2) ......... 32

Giglio v. United States, 405 U.S. 150 2.0... cee eee eee eee 27

Katz v. United States, 389 U.S. 347 2... cece cece eee 22

Kolod v. United States, 390 U.S. 136 2.0... cece cece eens 21

Leady v. United States, 280 Fed. 864 (C.C.A. 8) ......... 32

Les v. Phasida, S02 UG. FIO oc ccccccccccsvccecccceseses 27

Mesarosh v. United States, 352 U.S. 1 (1956) ............ 26

Oras v. United States, 67 F.2d 463 (C.C.A. 9) ........44.. 32

Roviaro v. United States, 353 U.S. 530 oo. cee eee eee eee 24, 29

iv

Contents

Page

a i SF Sr er 30, 31

United States v. Baum, 482 F.2d 1325 (2nd Cir. 1973) .....

Jab inde sSebenndhesteadcnweetcaneneee 26, 28, 29, 31

United States v. Bryant, 448 F.2d 1182 (D.C. Cir. 1971)....

6 066ngeedesenbeeensegedeuss 3, 21, 22, 23, 24, 25, 26, 28

United States ex rel. Wilkins, 326 F.2d 135 (2d Cir. 1964) . 29

United States v. Ferguson, 498 F.2d 1001 (D.C. Cir. 1974)

TITTTITTTT ITT Te 21, 24, 25, 26

United States v. Kelly, 420 F.2d 26 (2d Cir. 1969) ....... 29

United States v. Perry, 471 F.2d 1057 (D.C. Cir. 1972) ....

WITTITTT TTT TTT TTT TT ree 21, 23, 24, 25, 26

Statutes Cited:

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Be WA GED) cv cccccconcescunese “cseusnueene 2,4

OP A. GP cvccscvcsecccsevevssocsvasienseuneanen 3

BD UE. CIO oni dcdestdscsssecidd kee 2

v

Contents

Page

United States Constitution Cited:

Reset, Meme, Coco ccccccseccecvocssesesooseteseue 4

DOR, Maeete, .ngccccccccsececeevesbeesesesenenas 3, 4, 30

Sinth, Aaah oc ccccccccssecessececes 3, 4, 7, 28, 30, 31

APPENDIX

Orders of Denial of Petition for Rehearing and Reconsider-

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Order of Affirmance Dated December 3, 1975 .........-.. 3a

Opinion of the United States Court of Appeals .........-- Sa

In The

Supreme Court of the Hnited States

o—

October Term, 1975

No.

ORLANDO MIRANDA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT!

|. The docket number of the case in the Second Circuit was 74-2651.

STATEMENT

Petitioner, Orlando Miranda, respectfully prays that this

Court issue a writ of certiorari to the United States Court of

Appeals for the Second Circuit to review its affirmance of the

judgment of the United States District Court for the Eastern

District of New York, which convicted the defendant-petitioner

of a narcotics violation (21 U.S.C. §841(b)(i1)(A) and §812), after™ -

trial before Judd, D.J., and a jury. The court had sentenced

petitioner to concurrent terms of six years imprisonment. A

petition for rehearing and reconsidereation was denied on April

8, 1976.

OPINION BELOW

The opinion of the Second Circuit is reproduced as an

appendix to this petition.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1). The United States Court of Appeals for the Second

Circuit affirmed the judgment of conviction on December 3,

1975, and denied a petition for rehearing and reconsideration on

April 8th, 1976. (These orders are annexed hereto as

appendices.)

QUESTIONS PRESENTED

1. Whether the prosecution’s grossly negligent, or

deliberate loss of a tape recording allegedly made by a

cooperating informer, of a crucial conversation between

petitioner and herself, and the Government's subsequent

suppression of this fact from the defense, deprived petitioner of

a fair trial under the Fifth Amendment and violated Brady v.

Maryland, 373 U.S. 83 and the Jenck’s Act (18 U.S.C. §3500)?

2. Since the case at bar occurred after United States v.

Bryant, 448 F.2d 1182 (D.C. Cir. 1971), should not this Court

resolve the conflict between the Bryant case and the case at bar

by ordering a reversal of the conviction herein?

3. Whether the Government conducted a “trial by ambush”

by suppressing the identities of two important witnesses,

“Georgie” and “Toni”, who had accompanied the informer to

several meetings with the petitioner, and then belatedly revealing

the identity of only one, “Georgie”, toward the end of the trial

(Fifth Amendment)?

4. Whether petitioner was denied a fair trial by the refusal

of the Government’s main witness, Gloria Rodas, to reveal the

identity of “Toni”, and the refusal of the trial court and

prosecutor to compel this disclosure by use of the contempt

power (Fifth and Sixth Amendments)?

5. Whether petitioner was denied a Sixth Amendment right

of confrontation by the actions of the prosecutor and the court

in depriving him of the right to confront and cross-examine

“Toni” and by diminishing and emasculating his opportunity to

cross-examine “Georgie” (Fifth and Sixth Amendments)?

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fourth, Fifth and Sixth Amendments of the United

States Constitution, as well as 2! U.S.C. §841(b)(1)(A) and §812

are involved herein.

THE CASE CONSIDERED

We submit tha’ the facts and circumstances of the case at

bar are shocking to a point that this Court should not only

reverse because of the legal errors involved, but also in its

supervisory capacity over the conduct of trials in federal courts.

The petitioner herein, who had never previously been

convicted of any crime, was in effect tried by “ambush”.

The government alleged that a cooperating informer

by the name of Gloria Rodas, also known as “Beba”, had

recorded a conversation between the defendant-petitioner and

herself on March 25th, during which occasion the petitioner

allegedly discussed narcotics and passed money to “Beba” in

exchange for same. This conversation supposedly was broadcast

and recorded hy federal agents in a nearby automobile.

During pretrial discussions and, indeed, during the trial

itself, the Government never revealed the existence of this tape.

On the contrary, the trial prosecutor informed the defense

5

attorney, a former Executive Assistant United States Attorney

himself, that he had been given all of the tape recordings and

transcripts thereof.

As it turned out, during the questioning of a witness after

the Government's case had proceeded for quite some time, the

defense counsel unexpectedly came across the fact that

apparently a tape recording had been made by Rodas of this

crucial conversation, the only one where criminality had been

etched into a tape. Other than the testimony of Rodas, there was

no direct evidence of criminality, save for that alleged tape.

The agents who were listening in another automobile could

not speak Spanish or understand it, with the exception of one

agent who claimed that he too had heard the incriminating

conversation. No one, however, was able to teil what had

happened to this most crucial tape. Its loss was neither revealed

nor explained? until the trial defense attorney incredulously

stumbled across the fact of its existence. There was never any

satisfactory explanation to what had happened to this lost or

destroyed tape recording.

The Court must bear in mind that Orlando Miranda took

the stand himself and categorically denied that he had ever been

involved in narcotics and absolutely refuted the testimony of

Rodas that he had ever engaged in any narcotics transactions

with her or anybody else.

2. No explanation of the disappearance of the tape was ever made. Even the trial

court found the Government was negligent. We maintain the Government was

irresponsible in this matter.

6

To exacerbate the situation further, and to deepen the

mystery of the unexplained loss or spoliation of evidence by the

Government, another tape recording was allegedly made by

Rodas several days later when the balance of money was to be

paid for the narcotics which had allegedly been transferred on

March 25th. At that time the second tape recording was not lost,

but the portion which allegedly related to the incriminating

activities of the defendant-petitioner was somehow inaudible.’

Thus, the tape of the subsequent transaction was also worthless

so far as criminality was concerned.? No one could explain how

only that portion of the tape was obliterated or inaudible. Thus,

nothing corroborative exists on any tape.

During the trial itself, the Government refused to reveal the

identities of two women, “Georgie” and “Toni”, who had

accompanied Rodas on several occasions when she met the

defendant-petitioner. Toward the end of trial, the prosecutor

reluctantly revealed the identity of “Georgie” and stated that the

defense could interview her. She had been arrested and charged

with a narcotics violation and the court warned defense counsel

that he could not bring out her background. Defense counsel

declined to use her because of inadequate time to prepare for

this witness who had been withheld from him all this time.

The court, however, refused to compel Rodas to identify

“Toni” and also declined to compel “Georgie” to do so. In other

words, although Rodas took the stand and testified against the

defendant-petitioner, she was immune from any discipline by the

3. Cf Eighteen minute gap in Nixon tapes by Rosemary Woods.

.

court or prosecution for her wilful refusal to divulge this most

important information. The court, for some reason, did not seek

to invoke its contempt power, nor did the prosecution ask it to

do so. As a result, of course, a crucial witness could not be

located by the defense and would not be produced by the

prosecution. A serious violation of the Sixth Amendment right

of confrontation was therefore perpetrated.

Agent Castillo, who allegedly had heard the conversation

between petitioner and Rodas when the latter recorded it and

broadcast it on the 25th of March, for some strange reason

made no notes of this fact.‘ Therefore, he could not even

produce notes corroborating what he claimed he recollected.

This was another suspicious and unusual circumstance of this

case.

Gloria Rodas, also known as Gloria Jackson, also known as

“Beba”, revealed that she had been cooperating with the

Government following her arrest and conviction of a drug

conspiracy based upon her plea of guilty (10, 11).°

Rodas disclosed that she knew the petitioner Orlando

Miranda and also knew him by a nickname of “Manolo” (11).

She said that she met certain DEA agents on February 28,

1974.

4. ts it conceivable that no notation of the most incriminating event in the case

should not even warrant a notation?

5. Numerals in parentheses refer to pages of the official court reporter's minutes of

trial, unless otherwise indicated.

Over objection, the court permitted a conversation, to

which the petitioner was not a party, between Rodas and certain

agents, wherein she agreed to go to the Jaguar Lounge which

was operated by Miranda (13, 14).

She stated that she met Agents Schnackenberg and

Mac Mullen (14), who worked with her in undercover activities.

On March |, 1974, at about 10:30 P.M., Rodas went into

the Jaguar Lounge in Queens and met a person by the name of

“Jack”, who in turn introduced her to “Manolo”, the petitioner

(14, 15).

On March 4, 1974, “Beba” agreed to go back to the Jaguar

Lounge and it was she who brought up the subject of drugs (16,

17).

Petitioner said a friend of his was coming out of jail and

allegedly asked her in how much was she interested. When the

petitioner was told that she was interested in a kilo, he told her

that he would let her know (17-19).

On March 21, 1974, “Beba” returned to the Jaguar Lounge

and saw the petitioner again. On this occasion, she claimed that

Miranda told her that he had been in the drug business for a

long time and could possibly arrange to sell her drugs (19, 20).

The court, incidentally, permitted Agent Schnackenberg to

remain in the courtroom during this interrogation, over the

objection of the defense counsel (22).

——_— -

9

The witness, Rodas, testified .hat again she met petitioner

on the 22nd of March, 1974, at 10:30 P.M. at the Jaguar

Lounge. On this occasion, she stated that he told her she could

have ten and a half ounces of cocaine at $1,000 an ounce (24,

25).

Petitioner allegedly said that he was interested in a

partnership and was giving her extra value (25).

On March 25, 1974, Rodas recalled that she went to the

DEA headquarters on 57th Street and was given $6,000 in cash,

and was equipped with a transmitter. She was also searched on

this occasion (26, 27).

Rodas went to the Jaguar Lounge and later agreed to drive

the petitioner to a garage where his car was being repaired (29,

30). She had in her car an attache case containing $6,000. She

allegedly told him to open the case and claimed that at this time

he removed the $6,000 and put white powder in the suitcase (29-

31).

Rodas asserted that she spoke with the petitioner in Spanish

(31).

Allegedly the petitioner agreed to give her $10,000 worth of

drugs although she only had $6,000 in cash with her, reaching

the understanding, however, that she would give him the balance

shortly (30-32).

On April 2, 1974, the agents again equipped Rodas with a

transmitter, searched her, and gave her $4,000 in cash. On this

10

occasion she said she went to the Jaguar Lounge and went

downstairs to the kitchen where she gave petitioner the balance

of $4,000 (33-35).

The court permitted the testimony beyond the period of the

indictment, over objection of defense counsel. Thus, Rodas was

permitted to state that on April 19, 1974, she again met the

petitioner at the Jaguar Lounge and on this occasion had

additional conversations with him (36-40).°

The agents concocted a plan to have another agent from

Puerto Rico, by the name of Octavio, pose as the brother oi the

witness Rodas. In this guise, the agent Octavio, Rodas, and the

perennial “Georgie” and “Toni” met together with Miranda at a

bar and exchanged pleasantries. Octavio allegedly thanked the

petitioner for being nice to his sister, meaning “Beba”. Nothing

whatsoever was said alluding to drugs. We submit that the

conversation was completely sterile so far as drugs were

concerned (41-45).

The court refused to permit defense counsel to obtain the

name of a brother who was supporting Rodas (48, 49). In

addition, the court stated that defense counsel could not elicit

the name of the other woman at the meeting, nor their addresses

(55, 56).

6. It should be noted that the court instructed the jury that this testimony, beyond

the period of the indictment, was solely for the purpose to establish intent and could not

be used to convict the defendant. We maintain that this was a completely meaningless

and confusing statement to make to laymen jurors. Bruton v. United States, 391 U.S.

123.

Rodas declared that the other woman was “Georgie” who

was also convicted of a drug violation and apparently was

cooperating with the Government (58, 59). At this point, at a

side bar, the Government revealed that the name of this

individual was Maldonado (58, 59).

The other woman was named “Toni” and had never been

convicted of a crime. This was the only information that was

imparted to defense counsel at this time (58-63).

Rodas, despite the fact that she was on the stand testifying

without any restraint, refused to state where “Toni” worked,

stating it would be perilous. She stated that “Toni” was a friend

of hers. The Government objected to any attempt to elicit this

information and the court went along with the Government's

objection, despite the fact that the petitioner was facing I5 years

in prison (63, 64).

It is significant to note that Rodas declared that she always

met “Toni” in the bar when she met the petitioner. “Georgie”

was there as well on virtually every occasion (74-80). It should

therefore be noted that these two individuals were witnesses to

essential portions of this investigation and were not merely

window-dressing.

The court warned defense counsel that it could not go into

the background of “Georgie” and also cautioned him not to say

anything further concerning “Toni” (83, 84).

It should be noted that defense counsel objected on the

grounds that while Rodas was searched by the Government,

there was no evidence that “Georgie” or “Toni” had been

12

searched, and it might well be that the funds allegedly given to

petitioner were given to these individuals, and perhaps these

individuals gave the drugs to Rodas which were ultimately

turned over to the Government (83-85).

The defense elicited the fact from Rodas that on March 23

and March 25, 1974 she had been equipped with transmitters.

The defense insisted that it be given the tapes of the conversation

on March 23rd and the other one on March 25th (94, 95). The

Government's counsel, however, said that Mr. Todel, the defense

counsel, had heard all the tapes. What it did not say was that the

tape of March 25th was just not accounted for. It never told

defense counsel that apparently the Government had lost, or

might even have destroyed, that tape. That tape was the most

important piece of corroborative evidence in the entire case since

the only transaction where there might have been corroboration

of the witness Rodas, was inexplicably missing.

It is also significant that “Toni” and “Georgie” were in the

Jaguar Bar on March 25th and could have received the funds

from the witness Rodas and might very well have turned over

narcotics to her to be given to the Government (99, 100). Only

Rodas had been searched (138, 139).

On March 23rd, 1974, she, that is “Beba”, already knew

that she was going to meet the petitioner on March 25th with

respect to the alleged drug transaction. Thus she had plenty of

time to make any preparations she wanted.

Ironically, on April 2, 1974, when $4,000, according to

“Beba”, was turned over to the petitioner in the kitchen of his

13

lounge, another recording was allegedly made. This, however,

did not pick up any part of the conversation wherein allegedly

the witness Rodas gave Miranda the additional $4,000,

representing the balance of the money for the drugs which she

had allegedly received from him on the ISth of March, 1974

(104, 105).

Agent Schnackenberg of the DEA stated that on March 25,

1974, he gave Rodas $6,000 in United States currency and

equipped her with a transmitter. She was also searched at this

time (113, 114).

He testified that he, Agent Castillo, and other agents were

in another automobile following a car in which the petitioner

and “Beba” were riding on the 25th of March. Only Agent

Castillo could understand the Spanish language among the

agents who were surveilling in the other car. The conversations

between “Beba” and Miranda were allegedly recorded but

Schnackenberg admitted that he had no idea what had happened

to these recordings (117-126).

Schnackenberg merely stated that he doesn’t know where

the tape of March 25th was and doesn’t know who has it or if it

exists (137).

He also conceded that on March 25th, “Georgie” went to

the Jaguar Lounge together with Rodas, but that “Georgie” was

not searched (138, 139).

In addition, he stated that “Toni” was there but that she

was not searched either (139).

14

Agent William MacMullen, testified that he was

Supervising Agent for the DEA in charge of this investigation.

He, too, stated that on March 25, 1974, he equipped the

witness Rodas with a Kel transmitter and gave her $6,000 in

cash (151).

Agent Castillo, who alone understood the Spanish

language, and other agents, surveilled the meeting between the

defendant and Rodas.

The court permitted the Government to ask “why”

questions, thereby permitting the witness MacMullen to give the

eperation of his mind on direct examination (163-167).

MacMuller stated that he, too, had no idea whatsoever of

what had happened to the tapes of March 25th (167, 168).

It should be noted that defense counsel tried to elicit the

fact that certain coercion was used on the defendant when he

was arrested, but the court would not permit adduction of this

evidence (176).

Octavio Pinol, a DEA agent stationed in Puerto Rico,

testified that he had a conversation with the petitioner when he

posed as Rodas’ brother. There was no actual conversation

concerning narcotics (186-191). The court, it should be noted,

permitted inferences upon inferences (196).

Agent James Castillo testified for the Govermment and

stated that he overheard the conversation and recorded it on

——

15

March 25th. He, too, could not account for what happened to

the tape of this important conversation between Miranda and

Rodas. The tape, he stated, was apparently lost (205-207).

The court, it should be noted, stated that the Government

was, at the very least, “negligent” (207, 208). Nonetheless, it

permitted testimony concerning the conversation (207, 208, 214,

215).

Agent Castillo said that he made no notes whatsoever of

this conversation wherein the petitioner allegedly stated that he

was giving $10,000 worth of cocaine to Rodas in exchange for

$6,000, but that he would expect the balance to be paid by her

later since he could not break up the allotment (214-218).

Ironically, Castillo admitted that he too, had never made a

memorandum of this conversation. In addition, he stated that

petitioner to!d him when he was arrested that he was completely

innocent and that he was not involved in drugs at all (224). In

addition Miranda stated that he wanted an attorney (224).

When Edward Manning, an agent who made a chemical

analysis of the drugs, came to testify, defense counsel objected

on the grounds that the drugs had never been identified by the

witness Rodas (237).

At this late juncture, it should be noted that the

Government stated, outside the presence of the jury, that it

would now make Iris Maldonado, the alleged “Georgie”,

available to defense counsel. Defense counsel insisted upon a

continuance, but the court denied this (239).

16

The other important witness, “Toni”, was not, however,

made available, nor could her whereabouts be determined by the

Government. At least that it what the Government said (241).

The court below itself noted that “Georgie” was being made

available very late in the trial and that “Toni” was not being

made available at all. It denied, however, any motion to dismiss

which was made by the defense counsel (253, 254, 262, 263, 264-

268).

The record reveals that neither Rodas nor “Georgie” would

tell where the important witness “Toni” was. In addition, they

would not give her address (267, 268).

The Government, despite the fact that it obviously had

plenty of leverage over these individuals, used none of it to aid

the defense in its important quest for these witnesses.

THE DEFENSE

Defendant-petitioner Orlando Miranda took the stand in

his own behalf. He stated that he had been born in Cuba and

came to the United States in 1956. He testified that he lived with

his mother, father, two brothers and a daughter aged 11. He was

not living with his wife but had been awarded custody of his

daughter (271-273).

Miranda asserted that he operated the Jaguar Lounge in

Queens County near Shea Stadium and held a 51% interest in

the company.

17

He recalled that he met Gloria Rodas, whom he knew as

“Beba”, in March of 1974, together with her two “sisters”,

“Georgie” and “Toni”. The petitioner remembered that “Toni”

always accompanied Rodas when she came to visit him (274

276).

“Beba” mentioned the possibility of a partnership and said

she could arrange to have a striptease act in his bar, but

petitioner asserted that he was not interested and told her so

(275-277).

The petitioner declared that on one occasion he met “Toni”,

“Georgie”, and the witness Rodas at a bar known as “Las

Fuentes Espanola”. Exhibit B of the petitioner depicts the

photograph that was taken there of these people, including the

petitioner (278, 279).

On one occasion petitioner recalled that he had an

automobile accident and “Beba” and her two sisters came over.

At this time he requested that “Beba” drive him to the auto shop

so he could pick up his car and she agreed to do so (278-281). In

the car, “Beba” asked petitioner to pick up a case, actually an

attache case. Petitioner saw a white powder inside and stated

that he wanted nothing to do with it. He did not at any time

receive any money from “Beba” (280-282).

He asserted that he had not told “Beba” that he intended to

go to Puerto Rico, as she had reported, and, as a matter of fact,

stated that he had last been in that territory about fifteen

months previously (281, 282).

Petitioner recalled that on one occasion he was introduced

to a person described as the “brother” of “Beba” (282). This was

the agent. Octavio.

Miranda declared that he told “Beba” he was not interested

in and did not want cocaine, although she told him that her

“brother” had cocaine (282).

Following his arrest on May 31, 1974, Miranda asserted

that United States agents of the DEA tried to recruit him as an

informer (283, 284).

He denied any involvement in drugs and was threatened

that he would be hit by the agents. He refused to cooperate with

them since he claimed he was not involved in any way, shape or

form and, accordingly, the arrest was processed (283-285). He

had no criminal record. He was told by one agent that he would

have problems if he didn’t cooperate (285).

The clear import of Miranda’s testimony was that he was

framed in this case (285, 286). Had the recordings or Agent

Castillo’s notes been produced, this might have been refuted. As

it stands, only the recollection of interested witnesses survives.

Why did the Government suppress these facts?

While Miranda conceded that he had several meetings with

“Beba” and her “sisters”, he categorically denied that he was ever

involved in drugs (288-294).

On March 25, 1974, he conceded that he was in an

automobile with Rodas, but denied absolutely that he had ever

19

offered to sell her any cocaine. He stated he received no money

at all on that occasion. He denied involvement in drugs and

insisted that he told “Beba” he didn’t want to deal in anything of

that sort. He absolutely contradicted the testimony of Rodas

and Agent Castillo who had testified to the alleged conversation

in that car (304-307).

The Government insisted that “Georgie” was equally

available to the petitioner since at the virtual close of their case

they had mentioned her name and permitted defense counsel to

interview her. Defense counsel however stated he needed a

continuance to conduct an investigation before he could

determine whether or not to use this witness, but the court

denied such continuance, as we have already indicated. The

court noted that while “Georgie” was made available, it was

quite late in the trial and “Toni” was never produced at all.

“Toni” was a name which was not really meaningful, especially

since both “Georgie” and Rodas refused to give the correct name

of this individual (341, 342).

The trial court stated that it would not give a missing

witness instruction despite the fact that the Government had

certainly acted improperly in this case in withholding the

information about these witnesses (344).

20

REASONS FOR GRANTING THE WRIT

I.

This Court should grant certiorari and thereafter should

reverse the judgment of conviction and dismiss the indictment

on the grounds that the prosecution inexplicably failed to

account for a tape recording of an essential conversation made

on March 25, !974, upon which the entire case turned. This

prejudice was exacerbated by the fact that the Government

deliberately and intentionally withheld from the defense any

notice of the fact that a tape had at one time allegedly existed of

this crucial conversation. The conversation of March 25, 1974,

therefore, should have been suppressed as requested by the

petitioner. This Court should act not only upon the legal

principles involved, but also in its supervisory capacity to insure

justice in the federal courts.

One of the most disturbing and prejudicial aspects of this

case lay in the fact that the Government apparently deliberately

suppressed from the defense the fact that a tape recording of the

most crucial conversation in the entire case, that is the

conversation of March 25, 1974, between Rodas and the

petitioner wherein he allegedly gave her ten ounces of cocaine in

exchange for $6,000 was lost or destroyed. The prosecution

rather “cutely” stated that all the tape recordings which it had,

had been turned over to the defense. It was only during the trial

proper that for the first time on cross-examination, the defense

learned that a tape recording had allegedly been made of this

important March 25th meeting.

21

We submit that this was clear spoliation of evidence, or at

least such gross negligence as to warrant a reversal and dismissal

of the indictment, irrespective of any other error in this case.

[ United States v. Bryant, 448 F.2d 1182 (D.C. Cir.). See also,

United States v. Perry, 471 F.2d 1062, 1065; and United States

v. Ferguson, 498 F.2d 1001 (D.C. Cir. 1974).]

It should be noted that the Government offered no excuse

nor any explanation whatsoever for the loss of this essential

tape. There was no “good faith” explanation by the prosecution

as to why the tape was not available, nor was there any cogent

explanation proffered as to what efforts were made to locate it.

More significant than the foregoing, however, is that the

Government withheld any information about the tape from the

defense until the middle of the trial when, by sheer luck, defense

counsel became aware of the fact that “Beba” had been wired

up. Even the reports of the agents omitted any references to the

tape or that it was missing.

The maxim “Contra spoliatorem omnia praesumuntur”

requires that there must be a presumption that evidence which

has been destroyed or negligently lost would have been

unfavorable to the spoliator (1 Smith, Lead. Cas. 315).

In Kolod v. United States, 390 U.S. 136, at 137-138, the

United States Supreme Court indicated that ex parte

determinations that evidence would have been duplicative or

irrelevant are impermissible.

The argument in Kolod cogently noted:

22

“When a government winces at full disclosure in

cases such as this it is a government that has lost

its taste for freedom.”

See also, Katz v. United States, 389 U.S. 347, and Berger v.

New York, 388 U.S. 41.

In United States v. Bryant, supra, the District Court of

Appeals made it abundantly clear that preservation of tape

recordings involved in criminal investigations are absolutely

essential and, indeed, the court quotes the Director of the

Federal Bureau of Investigation who ordered that “These tapes

Should be preserved for ten years in the same manner as

documentary evidence.” (Bryant, 448 F.2d at 1184).

In the Bryant case, supra, the Court of Appeals affirmed

apparently on the principal ground that the District Court had

found that the tape in question was almost entirely

unintelligible. The court, however, noted (/d. at 1184):

“The lost tape here had major potential

importance to the question of guilt or innocence,

since it might have enabled appellants to

contradict the testimony of the undercover agent

involved in the narcotics transaction. It

developed on remand, however, that the Bureau

agents had played the tape and found it to be

almost entirely unintelligible. The District Court

credited the agents’ testimony in this regard and

concluded that the tape would have been of little

use to appellants. There is nothing in the record

23

which could justify our rejection of that

conclusion. /n the future, of course, investigative

agencies will not be allowed to excuse

nonpreservation of evidence by claiming that it

contained nothing of interest to defendants.”

(Emphasis ours.)

In the case at bar, however, the contrary is true. The

Government, by its own agents, declared that the tape herein

was one of the clearest and most intelligible of any tapes. As a

matter of fact, it is the only tape that was ever made where

supposedly something incriminating was uttered. The Court will

recall that the portion of the April 2nd tape, which supposedly

referred to the $4,000, representing the balance for the drugs in

question which was allegedly given to Miranda, for some strange

reason was unintelligible.

As the court in Bryant points out, the lost tape had “major

potential importance to the question of guilt or innocence, since

it might have enabled appellants to contradict the testimony of

the undercover agent involved... .”

In United States v. Perry, 471 F.2d 1057 (D.C. Cir. 1972),

the Court of Appeals indicated that where “earnest efforts” are

made to preserve crucial materials and “to find them once a

discovery request is made”, there are possibilities for avoidance

of the Bryani rule.

In the case at bar, however, even the trial judge felt that the

Government had been negligent.

24

The concurring opinion, however, of Judge Skelly Wright

(471 F.2d at 1068) notes that the Perry case involved a situation

where the material was lost prior to the court’s decision in the

Brvant case and that therefore Brvant was unaffected by the

Perry decision. (Cf. United States v. Bryant, 439 F.2d at 652).

It should also be noted that in the Perry case the court was

not dealing with a lost tape. The case nevertheless recognized

that where negligence is involved, the Bryant rule must be

invoked.

In United States v. Ferguson, 498 F.2d 1001 (D.C. Cir.

1974), the court considered the fact that a Government

informant who was present during a narcotics transaction was

not available for the trial. The Court of Appeals, however,

distinguished Ferguson from Roviaro v. United States, 353 U.S.

53. noting that in Roviaro the Supreme Court was concerned

with the withholding of an informant’s identity and in his failure

to testify at trial (353 U.S. at 62). The Ferguson court further

noted that in Roviaro the Supreme Court was dealing with the

withholding of an informant’s identity and in his failure to

testify at trial (353 U.S. at 62).

The Ferguson court further noted that in Roviaro the

“informant was an integral part of setting up the crime [353 U.S.

at 64] and the court found that in the absence of other witnesses,

was the only means by which the appellant could explore any

possible entrapment by the Government.”

In Ferguson, however, the Court of Appeals noted that the

Government represented to the court that the informant would

es

25

appear as a witness for the Government and that his identity was

being withheld for reasons of his safety (498 F.2d at 1004).

The court further noted in Ferguson that ten days before

trial the Government did reveal the identity of the informant and

“disclosed further that the Government had lost touch with

him”. (/d. at 1004).

In Ferguson the Court of Appeals distinguished inanimate

objects, such as recordings, from live witnesses. Thus at 1005 of

498 F.2d, the Court of Appeals explained:

“This Court called upon the government to

provide procedures for the safeguarding of such

Jencks material and held that in the future unless

such procedures were established so that

discoverable evidence might be preserved,

sanctions for nondisclosure will be invoked. The

spirit of Bryant, the dissent says, should be

applied to the clearly distinguishable situation

with which the Court is confronted in the instant

case. We disagree. It is one thing to safeguard

such inanimate objects as recordings of

conversations. It is quite another to require that

government witnesses be secured for the purpose

of a future trial. Witnesses, like defendants

released on bond, do disappear.”

At page 1006 of the Ferguson opinion the court, referring to

Bryant and Perry, further elucidated:

26

“In Perry, we said, respecting Bryant, that ‘even

though Jencks Act information has been lost or

destroyed criminal convictions otherwise based

on sufficient evidence may be permitted to stand

so long as the Government made “earnest efforts”

to preserve crucial materials and to find them

once a discovery request is made.’ (Footnote

omitted; emphasis in original).”

This Court should take cognizance, therefore, that in all

of the foregoing cases, Bryant, Perry, and Ferguson, the

elements of lack of prejudice were obvious and with the

exception of Brvant, good faith efforts on the part of the

Government had been made. ;

In the trial court, however, there was obviously an effort

made, deliberately, to withhold from the defense the very

knowledge that a tape had ever existed.

This, therefore, was certainly a case where “trial by

ambush” was the rule of the day, as will be further explained in

the next point as well. [United States v. Baum, 482 F.2d 1325,

1332 (2 Cir. 1973)].

This Court has supervisory powers over the conduct of

trials in federal courts. What has occurred in the case at bar

cannot help but shock the conscience of this Court.

It is respectfully submitted that in such cases as Mesarosh v.

United States, 352 U.S. | (1956), this Court made it abundantly

clear that it would not permit such conduct. See Brady v.

27

Maryland, 373 U.S. 83; Giglio v. United States, 405 U.S. 150;

and Lee v. Florida, 392 U.S. 378.

It should also be noted that in the court below, the opinion,

Slip 6561, indicates that the April 2nd, 1974 recording was

unintelligible. Appellate counsel had been advised by trial

counsel that this was not entirely correct since portions of the

April 2nd conversation were clear. The only portions apparently

unintelligible allegedly related to the supposed criminal

activities. It is very strange that only the incriminatory portion

should have been unintelligibie.

Rodas alone testified that “Toni” and “Georgie” were not

present when she had conversations with Miranda concerning

narcotics. We only have Rodas’ testimony for this. The

petitioner contradicted this assertion, but no opportunity was

ever given to substantiate his position since he could not learn

the identities of “Georgie” and “Toni” early enough. When he

finally did learn the identity of “Georgie”, the trial was nearly

over and it was impossible to properly prepare to examine such

a witness. It must be remembered that Gloria Rodas and

“Georgie” had both previously been arrested and convicted by

the Government. Both had strong motives to iie. Proper

preparation was obviously necessary before putting such a

witness on the stand.

“Toni”, however, was never produced nor identified, despite

requests and despite the fact that the witnesses, Rodas and

“Georgie”, were asked to identify “Toni” and refused. No effort

to use is contempt power was made by the court. nor did the

Government seek to have the court utilize it.

28

It is therefore submitted that essential right of confrontation

was denied to the petitioner. (See Sixth Amendment, United

States Constitution, and the next point.)

This Court should resolve the conflict between Bryant,

supra, and the case at bar.

The Government withheld the identity of “Georgie” and

“Toni” from the defense despite the fact that both of these

women were present at virtually all of the conversations with the

petitioner concerning drug transactions. The belated revelation

of “Georgie’s” full name toward the close of trial was worthless

and frustrating since the trial court refused to grant a

continuance to permit defense counsel to properly confront this

witness.

The trial counsel in this case, a former Executive Assistant

United States Attorney, Mortimer Todel, Esq., must have had

feelings of deja vu while trying this case since he was the same

trial counse! as the one who tried United States v. Baum, supra,

where the court below reversed the conviction and condemned

the Government for withholding the identity of a witness until

the virtual end of the trial (United States v. Baum, 482 F.2d at

1331).

Mr. Todel quite correctly asked for a continuance, as the

court below indicated wus warranted in the Baum case, when the

Government belatedly identified “Georgie”. “Georgie” was not

some casual, cumulative witness, but, on the contrary, had been

29

present at crucial conversations involving the very essence of the

case. Moreover, if anything smacked of a “trial by ambush” it

was the case at bar. Thus, in Baum, the court below explained:

“The failure to reveal Greenhalgh’s identity until

he was presented as a witness, confronted the

trial judge with the hard choice of interruption of

the trial or denial to the defense of a reasonable

opportunity of meeting the severe impact of this

aspect of the prosecutor's evidence. Such tactics

were condemned, and called for the reversal in

United States v. Kelly, 420 F.2d 26, 29 (2d. Cir.

1969). In the language of Judge Smith ‘The

course of the government smacks too much of a

trial by ambush, in violation of the rules.’ To be

sure, Baum’s attorney did not make a very

forceful showing in the district court of what

cross-examination or rebuttal material he could

secure. But in a case so close as this, we would

rather give the defendant the benefit of the doubt

than let the Government reap even a slight

possibility of benefit from what we regard as a

lack of candor unworthy of a prosecutor.

Here, no reason for nondisclosure was advanced

by the government. Greenhalgh’s testimony was

crucial to the prosecution; it was equally crucial

to the defense. Cf. Roviaro v. United States, 353

U.S. 53, 60, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957);

United States ex rel Wilkins, 326 F.2d 135, 140

(2d Cir. 1964)" (emphasis ours).

30

Moreover, there was no reason whatsoever advanced why

the identity of this witness could not have been revealed earlier

in the trial or, for that matter, inimediately before trial, under a

proper protective order, as is done time and again in criminal

cases.

In addition to the foregoing, the Government obviously

made no efforts whatsoever to assist the defense in obtaining the

identity of “Toni” who, undoubtedly was also present at many

important conversations and who would have been an essential

witness since she could have corroborated or contradicted

Rodas’ testimony. The Government promulgated the impression

that it had no control over Rodas and “Georgie”.’

The defense, therefore, was deprived both of an essential

right of confrontation, and also of the ability to subpoena

witnesses in his behalf in violation of the Sixth Amendment of

the United States Constitution and was thus deprived of due

process of law under the Fifth Amendment.

In Smith v. Illinois, 390 U.S. 129, 132, the Supreme Court

restated:

“In Alford v. United States, 282 U.S. 267, this

Court almost 40 years ago unanimously reversed

a Federal conviction because the trial judge had

sustained objections to questions by the defense

counsel seeking to elicit ‘the place of residence’ of

a prosecution witness. . .” (emphasis ours).

7. Rodas denied “Georgie” and “Toni” heard any incriminating conversations, but

petitioner contradicted this and sought to produce these witnesses without success.

= cece eet

el ee tae

ti

31

~

In Smith, supra, id. at 131, the Court also noted:

“The witnesses’ [names]... address opened

countless avenues of in-court and out-of-court

investigation. To forbid this most rudimentary

inquiry as a threshold is effectively to emasculate

the right of cross-examination itself.” (Emphasis

ours.)

The Sixth Amendment guarantees not only a right to be

“confronted with the witnesses against him”, but also “to have

compulsory process for obtaining witnesses in his favor”. Both

of these guarantees were denied when the name of these

witnesses were withheld (Brady v. Maryland, 373 U.S. 83).

The trial court was obviously disturbed at what had

transpired. We believe, however, that the trial court erred in

failing to grant the motions of the defense to either dismiss the

indictment, or to compel the revelation of both the witnesses’

names. It will be recalled that secrecy was even extended to

certain transactions involving Rodas’ “brother”.

Under the foregoing circumstances, we think it is significant

to know that we are dealing with a defendant who has no prior

criminal record and who took the stand in his own behalf, and

categorically denied complicity in the crime. The tape recording

of March 25th, was lost or destroyed, and the witnesses

“Georgie” and “Toni”, were not available, and we believe that

the principles of the Baum case should be applied herein since

this is an even stronger case than Baum.

32

III.

The trial court improperly permitted testimony beyond the

period of the conspiracy as alleged in the indictment. The court

erred in not ruling that the jury could infer that the testimony of

“Georgie” and “Toni” would have been unfavorable to the

Government since they were not called by the Government.

The foregoing points we submit warrant reversal. We wish

it known, however, that we do not waive the error of the court

below in permitting testimony beyond the period of the

conspiracy (36-40). Erber v. United States, (C.C.A. 2) 234 Fed.

221: Collenger v. United States, (C.C.A. 7) 50 F.2d 345; Oras v.

United States, (C.C.A. 9), 67 F.2d 463; and Leady v. United

States, (C.C.A. 8), 280 Fed. 864.

In addition, since the Government’s own informers (“Beba”

and “Georgie”) would not divulge “Toni’s” name, the trial court

should have granted the defense motion to charge her testimony

would have been adverse to the prosecution. The same is true

with respect to “Georgie”, whose identity was withheld until very

late in the trial for no cogent reasons.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

s/ Irving Anolik

Attorney for Petitioner

la

APPENDIX

ORDERS OF DENIAL OF PETITION FOR REHEARING

AND RECONSIDERATION

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At « Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the eighth day of April, one

thousand nine hundred and seventy-six.

Present:

HON. J. JOSEPH SMITH,

HON. WILLIAM H. TIMBERS,

Circuit Judges

HON. FREDERICK vP. BRYAN,

District Judge :

United States of America,

Plaintiff-Appellee,

v.

Orlando Miranda, a/k/a “Manolo”,

Defendant-Appellant.

2a

Orders of Denial of Petition for Rehearing and Reconsideration

74-2651

=

A petition for a rehearing having been filed herein by

counsel for the appellant ‘

Upon consideration thereof, it is

Ordered that said petition be and hereby is DENIED.

A. DANIEL FUSARO

Clerk

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the eighth day of April, one

thousand nine hundred and seventy-six.

United States of America,

Plaintiff-Appellee,

v.

Orlando Miranda, a/k/a “Manolo”,

Defendant-Appellant.

74-2651

3a

Orders of Denial of Petition for Rehearing and Reconsideration

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by counsel for

the appellant and no active judge or judge who was a member

of the panel having requested that a vote be taken on said

suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

s/ Irving R. Kaufman

IRVING R. KAUFMAN,

Chief Judge

ORDER OF AFFIRMANCE DATED DECEMBER 3, 1975

UNITED STATES COURT OF APPEALS

; SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the 3rd day of December,

one thousand nine hundred and °75.

PRESENT:

HON. J. Joseph Smith,

HON. William H. Timbers, Circuit Judges.

da

Order of Affirmance Dated December 3, 1975

HON. Frederick vP. Bryan, District Judge.*

Docket No. 74-2651

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-against-

ORLANDO MIRANDA,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Eastern District of

New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of said

District Court be and it hereby is affirmed.

s/ A. Daniel Fusaro

A. DANIEL FUSARO

Clerk

* S.D.N.Y. sitting by designation.

Sa

OPINION OF THE UNITED STATES COURT OF

APPEALS

UNITED STATES COURT OF APPEALS

For THE Secoxp Circvit

——

No. 753—September Term, 1974.

(Argued Marel 17, 1975 Decided December 3, 1975.)

Docket No. 74-2651

———

Unitep States or AMERICA,

Appellee,

—against—

OrLanpo Mrranpa,

Defendant-Appellant.

Before:

Smitx and Timsers, Circuit Judges,

and Bryan, District Judge.*

—+or

Appeal from a judgment of conviction on two counts of

violating the narcotics laws, 21 U.S.C. §4 841(a)(1), 841

(b)(1)(A), and 812, after a jury trial before Orrin G.

Judd, J., in the United States District Court for the

Eastern District of New York.

Affirmed.

-—_ ==

— Se

Invinc Axotik, New York, New York, for

Di fendaut-Appellant.

KMruan Levin-Ersrem, Assistant United States

Attorney, Brooklyn, New York (David G.

° Frederick vP. Bryan, of the Southern District of New York, sitting

by designation.

6a

Opinion of the United States Court of Appeals

Trager, United States Attorney for the

Eastern District of New York, Paul B.

Bergman, Assistant United States Attor-

ney, of counsel), for Appellee.

+).

Bryan, District Judge:

Orlando Miranda was convicted of (1) possessing with

intent to distribute, and (2) distributing some 10 ounces

of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)

(1)(A) and 812 after a jury trial before Judge Orrin G.

Judd in the United States District Court for the Eastern

District of New York. He appeals from the judgment of

conviction.’

Miranda does not contend that the evidence adduced at

the trial was insufficient to sustain his conviction and,

indeed, |. could not well do so. He raises three issues

whieh he contends require reversal. The first concerns

the failure of the tyial court to suppress testimony as to a

conversation between Miranda and Gloria Rodas, an in-

formant. on the ground that a tape recording of the con-

versation had been lost by the Drug Enforcement Admin-

istration and was not available at the trial. The second

relates to the availability to the defense of two women

who were not called as witnesses by the prosecution but

who had heen in the Jaguar Lounge bar on a number of

occasions when Rodas and Miranda met. The third con-

cerns the admission of evidence as to certain events which

took place subsequent to the transaction alleged in the

indictment.

Gloria Rodas was a major witness for the prosecution,

who testified that she negotiated and carried out the pur-

1 Miranda was sentenced to six years’ imprisonment on each of the two

counts, to run coneurrently, with a special parole term of four years to

follow, and fined $2,500 on Count 1. He is on bail pending appeal.

Ta

Opinion of the United States Court of Appeals

chase of 10 ounces of cocaine from Miranda for $10,000.

Rodas had been cooperating with the Government follow-

ing her arrest and plea of guilty to a narcotics conspiracy

charge in an unrelated case.’

Rodas testified to the fellowiny effect :

On March 1, 1974, at the request of special agents of

the Drug Enforcement Admin'stration (DEA), she went

to the Jaguar Lounge, » bar in Queens operated and par-

tially owned by Miranda, and struck up an acquaintance

with him there. During other visits to the Jaguar in

March, she talked with him further. On Mareh 15, 1974

Rodas brought up the subject of drugs with Miranda. Mir-

anda told her that people he knew were in jail but that

they were expected to be released shortly and he would

have more to tell her then. She told Miranda that she was

interested in buying a kilogram of cocaine and Miranda

said they would talk more about it later.

On March 21, 1974, Rodas again went to the Jacuar

and talked with Miranda about the proposed purchase of

ecraine. Miranda told her the purchase could be arranged

and they agreed te meet the following night to disenss the

matter further. On March 22, 1974 they met at the Jaguar.

as arranged. Miranda told Rodas he could let her have

10% ounces, which was all he could get his hands on, for

$10,000 ($1,000 an onnee) with the extra half ounce thrown

in as a token of friendship. They agreed to consummate

the transaction on March 25, 1974.

Rodas had kept the special agents informed of her nego-

tiations with Miranda. On the afternoon of Mareh 25 she

met with agents MeMullan and Schnackenherg. She was

searched, supplicd with a Kel transmitter. and given

#6,000 in cash. The agents searched her car. She then

2 Prior to her testimony in the case at bar, Rodas had been sentenced

to five years’ probation on this conviction.

8a

Opinion of the United States Court of Appeals

drove to the Jaguar Lounge in her car with the agents’

car following her. She met Miranda in the Jaguar as ar-

ranged. Miranda asked her to drive him a short distance

to an auto body shop where his car was being repaired.

During the drive Miranda told her in Spanish that he had

the merchandise with him. She said she could not take it

all since she only had $6,000 of the $10,000 purchase money

with her. Miranda said he would let her have the full

amount of the purchase and would trust her for the bal-

ance of $4,000. He offered to let her taste a sample of the

cocaine to test its purity. She replied that if he trusted

her, she would trust him. Miranda produced a packet of

cocaine, placed it in an attache case on the back seat of the

car, and took the $6,000. Rodas dropped him at the auto

body shop.

Rodas drove to a rendezvous with the agents who re-

moved the packet of cocaine from the attache case and field-

tested it. The package contained some 10 ounces of cocaine.

On April 2, 1974, Rodas met with the agents. She was

searched, again wired with a transmitter, and given the

balance of $4,000 to pay off Miranda. She talked with

Miranda in the kitchen of the Jaguar Lounge and gave him

the money. They then discussed the possibility of future

narcotics purchases and Miranda told her they would have

to be discreet since many policemen would be coming to

his bar during the forthcoming baseball season.

Rodas returned to the Jaguar on April 19, 1974 and

asked Miranda to meet with her “brother” who, she said,

was also in the narcotics business. On May 8, 1974 Rodas

and an undercover agent, Pincol, posing as her brother,

met Miranda in the Jaguar. Pinol thanked Miranda for

the favor he had done his “sister” and suggested that

Miranda supply him with a kilo of cocaine. Miranda re-

plied that he was getting out of the business.

9a

Opinion of the United States Court of Appeals

Group Supervisor McMullan and Special Agents Schnack-

enberg, Castillo and Pinol also testified for the prosecution.

In substance, the testimony of McMullan and Schnacken-

berg corroborated the testimony of Rodas with respect to

the arrangements for her to cooperate with the Govern-

ment in this case, her meetings with the agents during the

course of her negotiations with Miranda, and her visits

to the Jaguar Lounge, a number of which were covered

by surveillance. McMullan and Schnackenberg also testi-

fied that Rodas had been equipped with a radio transmitter

before her visits to the Jaguar on March 25 and April 2,

1974; that she had been given $6,000 in government funds

on March 25 and $4,000 on April 2; that on March 25

both her person and her car, #ncluding the attache case

on the back seat, had been searched before she left for

the Jaguar; and that a similar search had been made on

April 2.

On March 25, McMullan, Schnackenberg and Castillo fol-

lowed Rodas in their car and kept her under surveillance.

They saw her enter the Jaguar, emerge with Miranda and

drive to the auto body shop with him. During the drive

the Kel radio transmitter which Rodas had with her was

turned on and the conversation in Spanish between Rodas

and Miranda was heard clearly by the agents in the sur-

veilling car and recorded on tape. Castillo was the only

agent in the car who understood Spanish and he gave a

running account of the conversation to the other agents

in English as it came over the transmitter. Agent Cas-

tillo’s testimony as to the transmitted conversation of

March 25 corroborated Rodas’ version of it.

After Miranda left Rodas’ car at the body shop, the

agents met Rodas and took the packct of cocaine from

the attache case where Rodas said Miranda had placed

it. They proceeded to the office of the DEA with the co-

caine and the tape of the Rodas-Miranda conversation,

10a

Opinion of the United States Court of Appeals

where \gent Castillo listened to a portion of the tape.

Shortly after that, however, the agents were unable to

find the tape, which had inexplicably disappeared from the

DEA office. It was never found again, though the agents

made an exhaustive search for it. Thus, the tape was un-

available at the trial, both to.the prosecution and the

defense.

On April 2, 1974, when Rodas went to the Jaguar to

deliver the $4,000 final payment to Miranda, the radio

transmitier on her person was again turned on. The tape

of her conversation with Miranda at the Jaguar turned

out to be inaudible and thus there was no recording of

what was said in that conversation either.

Agent Pinol’s testimony in substance corroborated Rodas’

account of her final conversation with Miranda at the

Jaguar on May 8, 1974.

Miranda took the stand and was the only witness for

the defense. He strenuously denied selling cocaine to Rodas,

receiving any money from her, or having anything to do

with narcotics. He stated that he had talked with Rodas

from time to time at the Jaguar and that she had driven

him from the Jaguar to the auto body shop on March 25.

On one occasion, when Rodasg told him her brother had @

lot of money to buy cocaine, he refused to diseuss the

subject and walked away from her. His version of the

conversation with Rodas during the March 25 drive to

the auto body shop was that, at Rodas’ request, he had

picked up and opened a valise in the back of the car and

looked into it. He saw some white powder enclosed in

plastic. Rodas said it was cocaine and that she was show-

ing it to him to make him nervous or afraid. He got out

of the car and told her he would not drive in her ear

again. Nevertheless, he admitted talking with Rodas sev-

eral times thereafter and meeting her supposed “brother”,

agent Pinol.

lla

Opinion of the United States Cour! of Appeals

I.

The testimony of Rodas and Agent Castillo as to the

conversation of March 25, 1974 between Rodas and Miranda,

concerning delivery of cocaine by Miranda and payment of

$6,000 to him, was a crucial part of the prosecution's case.

During the trial the defense moved to suppress testimony

of Rodas and Castillo concerning the March 25 conversa-

tion on the grounds that the tape recording which had

been made of the conversation had been lost by the Gov-

ernment and unavailable, and that the Government had

failed to disclose prior to the second day of the trial that

there was such a recording which had been lost. The mo-

tion to suppress was denied by the trial court, as was a

defense motion for a judgment of acquittal on similar

grounds at the conclusion of the case. Thereafter, a mo-

tion to set aside the verdict and for a judgment of acquit-

tal on these grounds was also denied.

Miranda’s first contention is that the unavailability of

the tape and the trial court’s failure to suppress the Rodas-

Castillo testimony as to the March 25 conversation re-

quires reversal of the conviction and the entry of a judg-

ment of acquittal.

During the pre-trial proceedings, the prosecution fur-

nished defense counsel with tapes and transcripts of sev-

eral conversations pursuant to Fed. R. Crim. P. 16. The

Assistant United States Attorney informed the court and

defense counsel that he had turned over all the tape re-

cordings in the Government’s possession. At the time he

made that statement, the Assistant was well aware that

a tape recording had been made of the March 25 Rodas-

Miranda conversation and that it had been lost.’

3 The Assistant's representation to the court and defense counsel that

all the tapes and recordings in the Government's possession had heen

turned over, while it was literally true, can searcely be considered other

12a

Opinion of the United States Court of Appeals

In the material furnished to the defense under the

Jencks Act, 18 U.S.C. $3500, there was no mention in any

ui the agents’ reports or in any of the other material of

the Mareh 25 tape recording or its loss. Defense counsel

lid not learn that a tape recording had been made of the

conversation and had been lost until the morning of the

second day of the three-day trial, Wednesday, September

25, 1974. Due to Judge Judd’s Friday motion calendar

and the ensuing weekend, the trial was adjourned until

Monday, September 30.

On Monday, September 30, at the request of the de-

fense, the court permitted the defense to recall agent

Schnackenberg to the stand before the jury and cross-

examine him at length as to the tape and its loss. The

defense also cross-examined Supervisor McMullan and

agent Castillo extensively on these matters. In addition,

there was redirect on the subject.

The substance of the testimony of the agents was as

follows: The transmission of the March 25 conversation

to the surveilling agents in their car was quite clear. The

cassette on which the transmitted conversation was re-

corded was removed from the recording device and taken

to the DEA office on the evening of March 25 by the agents

who had listened to the transmission. Agent Castillo lis-

tened to some three minutes of the recording; apparently

no one listened to the full recording. A day or two later,

when Schnackenberg looked for the cassette recording in

order to have it transcribed, in accordance with the usual

practice, it had inexplicably disappeared. Schnackenberg

reported the loss to MeMullan, his Group Supervisor.

than misleading. It left the impression that there had been no tape

recording of the March 25 conversation. We strongly disapprove of such

conduct, which is painfully close to sharp practice and unbecoming for

a prosecutor representing the Government of the United States.

13a

Opinion of the United States Court of Appeals

Despite repeated and diligent attempts to locate the cas-

sette by the agents concerned, it could not be found.

These efforts were renewed shortly before the trial at the

request of the prosecutor, with the same negative result.

No notes or other records concerning the cassette record-

ing or its disappearance had been made.

The defense did not request that any further inquiry be

conducted concerning the tape and the circumstances of

its loss. Nor did it seek to examine agents McMullan and

Schnackenberg, either before the jury or in camera, with

respect to Castillo’s translation to them of the Miranda-

Rodas conversation in Spanish as it was being transmitted

to the agents’ car on March 25. The defense moved for

suppression of the Castillo-Rodas testimony solely on the

basis of the evidence in the record. At the conclusion of

the case it moved for a judgment of acquittal on the same

record.

The evidence concerning the tape and its loss was be-

fore the jury. Defense counsel was in a position to make

the most of that evidence in summation, and did so. The

jury was entitled to consider such evidence in reaching

its verdict. It found the defendant guilty on both counts.

On its motion to set aside the verdict, the defense did

not seek a further hearing but again relied solely on the

record. Judge Judd denied the motion on the basis of the

record.

In a criminal case, the Government plainly has the obli-

gation to make available to the defense evidentiary mate-

rial in its possession which is disclosable under the due

process safeguards of Brady v. Maryland, 373 U.S. 83

(1963), or the requirements of Fed. R. Crim. P. 16 or

the Jencks Act, 18 U.S.C. §3500.

If the Government fails to carry out that obligation,

a serious question arises as to whether such failure calls

l4a

Opinion of the United States Court of Appeals

for the imposition of sanctions against the Government.‘

Whether or not sanctions for nondisclosure should be im-

posed depends in large measure upon the extent of the

Government’s culpability for failure to make diselosable

material available to the defense, on the one hand, weighed

against the amount of prejudice to the defense which re-

sulted, on the other. United States v. Pfingst, 490 F.2d

262, 277 (2d Cir. 1973), cert. denied, 417 U.S. 919 (1974);

United States v. Mayersohn, 452 F.2d 521, 526 (2d Cir.

1971); United States v. Rosner, 516 F.2d 269, 272 (2d Cir.

1975), petition for cert. filed, 44 U.S.L.W. 3207 (U.S. Oct.

7, 1975); Umited States v. Hilton, 521 F.2d 164, 166 (2d

Cir. 1975); dmited States v. Kahn, 472 F.2d 272, 287 (2d

Cir.), cert. denied, 411 U.S. 982 (1973).

In the recent case of United States v. Morell, slip op.

0873 (2d Cir. August 29, 1975), the issue was whether de-

fendants convicted of serious narcoties offenses were en-

titled to a new trial because the Government had failed

to make disclosable evidentiary material in its possession

available to the defense. While an appeal from the judg-

ment of conviction was pending, the prosecution advised

this court and the defense that it had for the first time

discovered the existence of a confidential file in the posses-

sion of the Drug Enforcement Administration relating

to dealings and arrangements between narcotics agents

and the prosecution’s principal witness, the informant

Valdez. The documentary material in the file bore directly

4 Sich sanctions inelude the exclusion or suppression wf other evidence

converning the subject matter of the undisclosed material, see Fed. R.

Crim P. 16(d)(2); 18 U.S.C. §3500(d); the grant of a uw trial, see

Fed. R. Crim. P. 32; 18 U.S.C. §3500(d); United States v. Consolidated

Laundries Corp., 291 F.2d 563, 570-71 (2a Cir. 1961); or, in exceptional

circumstances, dismissal of the indictment or the direction of a judg-

ment of acquittal, see United States v. Heath, 147 F. Supp. 877 (D.

Hawaii 1957); United States v. Jackson, 508 F.2d 1001, 1005-08 (7th

Cir. 1975) ; United States v. Banks, 374 F. Supp. 321, 328 n.2 (D. 8.D.

1974).

1Sa

Opinion of the United States Court of Appeals

on Valdez’ credibility and was likely to have bolstered the

theory of the defense. The court of appeals then remanded

the case to the district court to make appropriate findings

with respect to the new material which had come to light.

The district court, without holding an evidentiary hear-

ing as to the Government’s culpability for its failure to

disclose the material earlier or making any determination

with respect thereto, denied defendant a new trial.

When the appeal again came before this court, Judge

Moore stated:

The standards governing the grant of a new trial [for

failure to disclose evidence in the Government’s pos-

session favorable to defendant] vary according to the

extent of the government’s culpability. If the pros-

ecutor has intentionally suppressed evidence or ignored

evidence whose high value to the defense could not

have escaped his attention, a new trial is warranted

if the evidence is merely material or favorable to the

defense. E.g., United States v. Kahn, 472 F.2d 272,

287 (2d Cir.), cert. denied, 411 U.S. 982 (1972) ; United

States v. Keogh, 391 F.2d 138, 146-47 (2d Cir. 1968).

If, on the other hand, the government’s failure to dis-

close is merely inadvertent or negligent, a new trial

is required only if there is a “significant chance that

this added item, developed by skilled counsel as it

would have been, could have induced a reasonable

doubt in the minds of enough jurors to avoid a con-

vietion.” United States v. Rosner, 516 F.2d 269, 273

(2d Cir. 1975); United States v. Seijo, 514 F.2d 1357,

1364 (2d Cir. 1975); Grant v. Alldredge, 498 F.2d 376,

380 (2d Cir. 1974); United States v. Miller. 411 F.2d

825, 832 (2d Cir. 1969).

Slip op. at 5878-79.

l6a

Opinion of the United States Court of Appeals

After reviewing the material which the Government had

failed to disclose, Judge Moore found there was not “a

significant chance” that the undisclosed information would

have affected the jury’s verdict and therefore concluded

that

[i]f the district court finds that the failure to dis-

close this material was deliberate or the result of

gross negligence on the part of the government, it

should order a new trial. If, however, the failure was

simply inadvertent or negligent, a new trial would not

be required.

Slip op. at 5882. The case was again remanded to the

district court with directions to hold an evidentiary hearing

and make appropriate findings as to the extent of the

Government’s culpability for its failure to disclose. See

also United States v. Hilton, supra, at 166.

Where disclosable evidentiary material which came into

the possession of the Government has been lost or de-

stroyed, and is unavailable to the defense for that reason,

the, standards for determining whether sanctions should

be imposed on the Government, like those applied in Morell,

supra, and the cases there cited, depend on the extent

of the Government’s culpability for the loss or destruc-

tion and the amount of the prejudice to the defense which

resulted. However, in such a case, unlike Morell, since

the material cannot be produced for inspection, it may

be difficult to ascertain what its value to the defense would

have been.

In United States v. Augello, 451 F.2d 1167 (2d Cir.

1971), cert. denied, 405 U.S. 1070 (1972), part of an al-

legedly incriminating conversation between the defendant

and the principal witness for the prosecution had been

recorded on tape. The tapes of the conversation had been

destroyed by police agents because they were said to be

17a

Opinion of the United States Court of Appeals

unintelligible. On appeal from the judgment of conviction,

one of defendant’s contentions was based on the failure to

suppress the testimony of the police agents about the taped

conversation, because the tape had been destroyed and was

unavailable at the trial. This court rejected that conten-

tion, stating:

While the degree of compliance by the police agents

with existing departmental regulations is not crystal

clear, the record taken as a whole gives no indication

of such bad faith or negligence in the destruction of

the allegedly unintelligible tapes as would call for

the suppression of the testimony of the police agents.

451 F.2d at 1170.

In so holding, this court relied on United States v.

Bryant, 439 F.2d 642 (D.C. Cir. 1971) (Bryant I). Bryant

I was an appeal from narcotics convictions. A tape re-

cording of a crucial conversation between the defendants

and an undercover narcotics agent regarding the transac-

tion at issue was unaccountably lost and thus was unavail-

able at the trial. The appellants contended that the tes-

timony of the narcotics agent with respect to the recorded

conversation should have been suppressed because the Gov-

ernment had failed to produce the tape, and that they

therefore were entitled to a new trial or dismissal of the

indictment. _

The narcotics agent who had custody of the tape testified

in substance that since he had never intended the tape

to be used in the trial, he had made no effort to preserve

it. The court characterized the case as one of “intentional

non-preservation by an investigative official,” and went on

to say that the agent’s conduct lay somewhere in the

middle “between good faith but inadvertent loss and bad

faith destruction,” 439 F.2d at 647. It held that the tape

was evidence which the Government was obligated to pre-

1&3

Opinion of the United States Court of Appeals

serve and disclose to the defense, either under Brady,

Rule 16, or the Jencks Act, and that whether or not the

sanction of suppression of the narcotics agent’s testimony

should be imposed depended on the cireumstances of the

loss. It found the record was inadequate for a determina-

tion of that question and therefore remanded the case to

the distriet court with directions to

weigh the degree of negligence or bad faith involved,

the importance of the evidence lost and the evidence

of guilt adduced at the trial in order to come to a deter-

mination that will serve the ends of justice.

439 F.2d at 653.

The court pointed out, 439 F.2d at 651, that the Govern-

ment had the burden of explaining the loss of evidence

which came into its possession and of showing that the

loss was not intentional, deliberate, or in bad faith, and

that earnest efforts had been made to find the evidence,

once its loss was discovered.

On remand, the district judge, after an evidentiary hear-

ing, held that the convictions should stand. 331 F.Supp.

927 (D. D.C. 1971). The case then again came before the

court of appeals in United States v. Bryant, 448 F.2d 1182

(D.C. Cir. 1971) (Bryant II). The court found that al-

though the negligence of the agent was “regrettably great” :

it was outweighed by other factors. It held that

under the more pragmatic balancing approach which

we have adopted for these cases, the unintelligibility

of the tapes—when combined with the very strong evi-

dence of guilt addueed at trial—outweighs the negli-

gence involved in the loss of the tape.

448 F.2d at 1184. The court affirmed the convictions.®

5 The statements in Bryant I and IJ indicating that, in the future, the

District of Columbia Cireuit would place a much heavier burden on the

19a

Opinion of the United States Court of Appeals

Other circuits have dealt witk the loss of disclosable evi-

dence by the Government on a case-by-case basis, and have

refused to impose sanctions where the loss was inadvertent

and not deliberate or in bad faith, and there was not such

prejudice to the defendant as to deny him a fair trial. See

United States v. Love, 482 F.2d 213 (Sth Cir. 1973) ; United

States v. Sewar, 468 F.2d 236 (9th Cir. 1972), cert. denied,

410 U.S. 916 (1973); United States v. Shafer, 445 F.2d

579, 581-82 (7th Cir.), cert. denied, 404 U.S. 986 (1971);

United States v. Rojas, 502 F.2d 1042, 1044-45 (5th Cir.

1974). See also United States v. Augenblick, 393 U.S. 348

(1969), cited in United States v. Augello, supra, where the

Supreme Court indicated that while sanctions should be

imposed on the Government for bad faith suppression of

evidence, they are not appropriate where the loss was in

good faith and earnest efforts had been made to find the

evidence, once its loss was discovered.

In the case at bar there is no question that the defense

would have been entitled to have the March 25 tape record-

ing made available either under Brady, Rule 16, or the

Jencks Act had it not been lost. Thus, the first question

presented is the extent of the Government’s culpability for

the loss of the tape.

Government to avoid the imposition of sanctions for nondisclosure due

to loss of evidence is plainly dictum. These standards for the future

were not applied in the actual case before the Distriet of Columbia

Cireuit in Bryant and we do not apply them in the case at bar. It was

the “pragmatic balancing approach” which was the basis of the Bryant

decisions.

Moreover, it is at least doubtful whether the District of Columbia

Cireuit has materially altered that approach in cases subsequent to

Bryant. See United States v. Patterson, 495 F.2d 107, 112 n.7 (D.C.

Cir. 1974); United States v. Carpenter, 510 F.2d 738, 740 (D.C. Cir.

1975); United States v. Person, 478 F.2d 659, 660 (D.C. Cir. 1973);

United States v. Ferquson, 498 F.2d 1001, 1005-06 (D.C. Cir.), cert.

denied, 419 U.S. 900 (1974).

20a

Opinion of the United States Court of Appeals

Here, unlike Worell, Bryant I, and other cases cited, an

additional hearing before the trial judge on the culpability

question is unnecessary. The cireumstances of the loss of

the tape and the efforts made to find it, once the loss was

discovered, were thoroughly covered by the testimony in

the record. Most of that testimony was adduced by the

defense in its cross-examination of the narcotics agents.

The defense was content to rest on that testimony in its

various suppression motions.

On the basis of that evidence, Judge Judd, who as the

judge presiding at the trial was in a position to assess the

credibility of the witnesses, found that while the loss of the

tape “indicates negligence on the part of the government

agents, the Court cannot find that the loss was intentional

or in bad faith * * *.”

The evidence before Judge Judd was quite sufficient to

satisfy the Government's burden on the issue of culpability.

Judge Judd’s finding on that issue is supported by the evi-

dence in the record and cannot be said to be clearly errone-

ous. It is dispositive of that issue. See United States v.

Rosner, supra, at 272-73, citing United States v. Johnson,

327 U.S. 106, 111 (1946); United States v. Pfingst, supra,

at 273, n.11.

Judge Judd further found that the defendant had not

been prejudiced by the failure of the prosecution to dis-

close the loss of the tape earlier since the “defense counsel

have not indicated any major differences in procedure

which would have been followed at the triul had the loss

of the tapes [sie] been known from the beginning,” and

“[{t]here is no indication * * * that the defendant would

have been materially better off had he known of the lost

tape earlier than he did.” As the judge who presided at

the trial, Judge Judd was in the best position to assess the

defendant’s contention that he had been prejudiced by

2la

Opinion of the United States Court of Appeals

failure to disclose earlier. We accept his findings that no

such prejudice occurred.

Thus, this is not a case of intentional, deliberate, or bad-

faith loss or suppression of evidence by government agents

in which prophylactic sanctions against the Government

would be appropriate. The loss of the tape recording by

the agents was merely inadvertent or negligent. The ques-

tion, then, is whether the defense was so greatly preju-

diced by the unavailability of the recording at the trial as to

require the imposition of sanctions against the Government.

In considering this question, several distinctive features

of this case must be borne in mind. In cases such as Morell,

supra, and Rosner, supra, where the Government had failed

in its obligation to disclose evidence, the undisclosed evi-

dence was before the court for evaluation. Assessment of

the effect of such evidence, had it been produced at the

trial, was relatively easy.

In the case at har, however, since the recording was

irretrievably lost, there is no way in which it can be deter-

mined with certainty what it contained. Indeed, since there

is no evidence that anyone heard the entire recording

played back, it is not even certain that the key portions of

the recording were intelligible.

The Government strenuously urges that if the recording

had not been lost it would have fully confirmed the testi-

mony of Castillo and Rodas concerning the March 25

Rodas-Miranda conversation. It contends that if any

prejudice arose because of the loss of the tape, it was

the Government which was prejudiced and not the de-

fense.

The defense, on the other hand, goes on the theory that

the recording would have confirmed Miranda’s version of

the conversation and thus would have exculpated him.

While it cannot be determined with certainty which of

these contentions is correct, in the light of the record

22a

Opinion of the United States Court of Appeals

concerning the transmission of the March 25 conversation

to the surveilling car and the circumstances of the loss

of the tape, it is more likely that the recording would

have supported the version of the conversation testified

to by the government witnesses rather than the somewhat

incredible version testified to by Miranda.

Moreover, here, unlike most cases involving government

failure to produce disclosable evidence, the fact that there

Was a tape recording of the March 25 conversation and

the circumstances of its loss were fully brought out by

the defense before the jury in its extensive cross-examina-

tion of the government agents. In its summation to the

jury, the defense made the most of the loss of the tape

as casting doubt on the Government’s case and tending

to support Miranda’s version of the March 25 conversa-

tion. The jury evidently rejected this contention in reach-

ing its verdict of euilty.

It may he noted that, quite understandably, the defense

elected not to elicit from MeMullan and Schnackenberg,

the non-Spanish speaking agents in the surveilling car on

March 25, testimony as to the simultaneous running ac-

count in English which agent Castillo gave them of the

transmission of the Rodas-Miranda conversation. Their

testimony on this subject might well have tended to con-

firm the Government’s version of that conversation.

The case against Miranda was a strong one. It by no

means rested on the testimony of the informant Rodas

alone. Much of her testimony was corroborated by the

te tino » of the government agents who followed the

progress of the meetings between Rodas and Miranda

and the results of those meetings closely. For example,

the Rodas version of her conversation of March 25 with

Miranda was corroborated by agent Castillo’s testimony

as to the transmission of the conversation to the surveill-

ing car, and supported by the testimony as to the search

od

‘

23a

Opinion of the United States Court of Appeals

of Rodas and her car before she picked up Miranda and

the packet of cocaine which the agents found in the attache

case in her car after she had left Miranda at the body

shop. Her testimony as to the May 8 conversation with

Miranda concerning narcotics was corroborated by agent

Pinol and, to a large extent, by Miranda himself.

Judge Judd concluded that under all the circumstances

here the absence of the tape did not deprive Miranda of

a fair trial. We cannot disagree with that conclusion.

As Judge Judd further pointed out, there is no indica-

tion that any additional evidence could be produced on a

new trial. Thus, nothing would be gained if a new trial

were granted. The alternatives here are between affirmance

of the conviction, on one hand, and, on the other, the

setting aside of the conviction and the entry of a judg-

ment of acquittal on the ground that the Castillo-Rodas

testimony as to the crucial March 25 conversation must be

suppressed and stricken from the record. The latter al-

ternative would be an unduly heavy sanction to impose

upon the Government for the loss of a piece of evidence

concerning a subject on which there was other primary

evidence available and adduced. Cf. United States v. Fishel,

324 F. Supp. 429, 430-32 (S.D.N.Y. 1971).

Whether we apply the pragmatic balancing test of Bryant

or the significant chance test of Morell and Rosner to

the case at bar, the result is the same. Under the prag-

matic balancing test, the strength of the case against the

defendant, coupled with the evidence placed before the

jury as to the circumstances of the loss, outweighs the

relatively slight degree of negligence involved in the loss

of the tape.‘ Viewing the record as a whole, we also find

that there is not a significant chance that the lost record-

6 In Bryant II the court refused to apply the sanction of suppression,

even though it found that “the degree of negligence shown is regrettably

great,” 448 F.2d at 1184.

24a

Opinion of the United States Court of Appeals

ing, had it been available to the defense at the trial, would

have avoided a verdict of guilty. Thus, there is no ground

on either theory for the imposition of the sanction of

suppression.

We hold that the denials by Judge Judd (1) of the mo-

tion during the trial to suppress the testimony of the

government witnesses as to the March 25 conversation,

(2) of the motion for judgment of acquittal at the close of

the trial on the ground of failure to suppress such testi-

mony, and (3) of the motion to set aside the verdict and

for a judgment of acquittal on the same ground, did not

constitute reversible error.

Il.

Miranda’s next contention relates to the availability to

the defense of two women, “Georgie” and “Toni,” who

were not called as witnesses by the prosecution but who

had been at the Jaguar Lounge on several occasions

when Rodas met Miranda.

Appellant’s argument that he was prejudiced by what

occurred at the trial with respect to “Georgie” and “Toni”

is based in substantial measure on a misapprehension of

the evidence in the record. The appellant is quite wrong

in stating that “both of these women were admittedly pres-

ent at virtually all of the conversations with the appel-

lant concerning drug transactions.” The record is to the

contrary. Rodas testified that while from time to time

“Georgie” and “Toni” were at the Jaguar Lounge when

she met Miranda, neither was present at any of the con-

versations she had with Miranda concerning narcotics.’

7 Rodas testified that all her conversations with Miranda concerning

drugs were “in private’ and that “no one ever heard any part of our

conversation.” This assertion was not contradicted by Miranda when

he took the stand and admitted talking with Rodas on occasion about

narcoties.

25a

Opinion of the United States Court of Appeals

Nor was either of them in Rodas’ car on March 25 when

the narcotics transaction was consummated.

The fact that Rodas had met Miranda at the Jaguar

was not in issue. There was no reason for the prosecution

to call either “Georgie” or “Toni” as witnesses, as the

appellant implies, or to inform the defense about then:

prior to trial.

After Rodas referred to “Georgie” in her testimony,

“Georgie” was produced by the prosecution at the request

of the defense. As the defense was made aware, “Georgie”

had pled guilty to the same narcotics conspiracy charge

as Rodas and was cooperating with the Government. After

interviewing “Georgie,” the defense declined to call her as

a witness.

Both Rodas and “Georgie” refused to disclose “Toni’s”

identity or where she could be found on the ground that

such disclosure might place her in danger. There was noth-

ing to indicate that “Toni” had any relationship with the

Government and the prosecution represented to the court

that it had no control over her or any knowledge of her

whereabouts. There is no reason to question that repre-

sentation and the defense apparently accepted it.

In support of his contention that what occurred with

respect to “Georgie” and “Toni” requires reversal, appel-

lant relies on Roviaro v. United States, 353 U.S. 53 (1957).

and United States v. Baum, 482 F.2d 1325 (2nd Cir. 1973).

Such reliance is misplaced.

In Roviaro, the Supreme Court reversed a narcotics con-

viction because the Government had refused

to disclose the identity of an undercover employee who

had taken a material part in bringing about the posses-

sion of certain drugs by the aceused, had been present

with the aecused at the occurrence of the alleged crime,

26a

Opinion of the United States Court of Appeals

and might be a material witness as to whether the

accused knowingly transported the drugs as charged.

353 U.S. at 55.

In Baum, the prosecution had refused to reveal the iden-

tity of a government witness whose testimony was crucial

both to the prosecution and to the defense until the witness

took the stand. At the completion of the direct examination

of the witness, the defense requested a continuance in order

to prepare adequately for a cross-examination. The con-

tinuance was denied. This court concluded that there were

no valid considerations to justify concealment of the iden-

tity of the prosecution witness until he took the stand, and

that the defendant had not been afforded “a fair opportu-

nity to meet the critical and damaging proof on an offense

not presented against him in the indictment,” 482 F.2d at

1332. It therefore reversed the conviction and granted a

new trial.

It requires no extended discussion to demonstrate that

neither Roviaro nor Baum are apposite here. There was

no showing that either “Georgie” or “Toni” were material

witnesses for either the prosecution or the defense. “Geor-

gie” was produced by the Government and interviewed by

the defense. As far as appears, “Toni” had no relationship

with the Government. There was no need for the Govern-

ment to go further than it did. Cf., e.g., United States v.

TD’ Amato, 493 F.2d 359, 366 (2d Cir.), cert. denied, 419 U.S.

826 (1974); United States v. Ortega, 471 F.2d 1350, 1359

(2d Cir. 1972), cert. denied, 411 U.S. 948 (1973); United

States v. Johnson, 467 F.2d 630, 640 n.9 (2d Cir. 1972), cert.

denied, 410 U.S. 932 (1973).

Appellant also suggests that it was error not to charge

that the jury could infer from the Government’s failure to

27a

Opinion of the United States Court of Appeals

call “Georgie” and “Toni” as witnesses that their testimony

would have been adverse to the prosecution.

Whether or not such a “missing witness” charge should

be given lies in the sound discretion of -the trie] court.

United States v. Llamas, 280 F.2d 392, 393 (2d Cir. 1960) ;

United States v. Cotter, 60 F.2d 689, 691-92 (2d Cir.), cert.

denied, 287 U.S. 666 (1932); United States v. Ferguson,

498 F.2d 1001, 1008 (D.C. Cir.), cert. denied, 419 U.S. 900

(1974). Cf. C. McCormick, Handbook of the Law of Evi-

dence §272, at 659 (2d ed. 1972).

Here the court correctly charged the “general rule” that

if it is specially within the power of the prosecution or

defense to produce a witness who could give material

testimony on an issue or to produce other evidence, the

failure to call the witness may give rise to an inference

that the evidence would be unfavorable.

It then added that

You cannot draw any such inference with regard to

a witness or exhibit that is equally available to both

parties or where the witness testimony would be merely

cumulative.

No exception was taken to the charge on this subject.

The charge as given was entirely proper in the circum-

stances of this case. See United States v. D’ Angiolillo,

340 F.2d 453, 457, 457 n. 5 (2d. Cir.), cert. denied, 380 U.S.

955 (1965); United States v. Super, 492 F.2d 319, 323 (2d

Yir.), cert. denied, 419 U.S. 876 (1974); United States v.

Bergman, 354 F.2d 931, 935 (2d Cir. 1966). Cf. United

States v. Brown, 511 F.2d 920, 925 (2d Cir. 1975).

Il.

Appellant’s final contention is that it was error to ad-

mit testimony as to conversations between Miranda, Rodas,

——————————ee

28a

Opinion of the United States Court of Appeals

and agent Pinol relating to narcotics subsequent to March

25, when the trans: ‘tion charged in the indictment was

consummated. This contention is also without merit.

It is settled law in this circuit that “evidence of similar

acts, including other crimes, is admissible when it is sub-

stantially relevant for a purpose other than merely to

show defendant’s criminal character or disposition.”

United States v. Deaton, 381 F.2d 114, 117 (2d Cir. 1967) ;

United States v. Brettholz, 485 F.2d 483, 487 (2d Cir.

1973), cert. denied, 415 U.S. 976 (1974); United States v.

Warren, 453 F.2d 738, 745 (2d Cir.), cert. denied, 406 U.S.

944 (1972); United States v. Bozza, 365 F.2d 206, 213 (2d

Cir. 1966); United States v. Torres, 519 F.2d 723, 727 (2d

Cir. 1975). The conversations subsequent to March 25

were plainly relevant to the question of Miranda’s intent

to possess and distribute cocaine, and were properly ad-

mitted under limiting instructions to the jury that they

could only “be considered as bearing on his [Miranda’s]

intention in connection with the March 25th charge.”

The judgment of conviction is affirmed.