917 F.

2d 1286
32 Fed. R. Evid. Serv. 40

UNITED STATES of America, Plaintiff-Appellee,

v.
Osvaldo RODRIGUEZ, a/k/a Osvaldo Hernandez-Marquez;
Ricardo
Leon, Defendants-Appellants.
No. 88-7689.

United States Court of Appeals,

Eleventh Circuit.
Nov. 8, 1990.

Domingo Soto, Madden & Soto, Mobile, Ala., for Leon.

Benjamin S. Waxman, Weiner, Robbins, Tunkey & Ross, P.A., Miami,
Fla., for Rodriguez.
J.B. Sessions, III, U.S. Atty., Gloria Bedwell and William R. Sawyer,
Asst. U.S. Attys., Mobile, Ala., for the U.S.
Appeals from the United States District Court for the Southern District of
Alabama.
Before EDMONDSON, Circuit Judge, HILL* and HENDERSON, Senior
Circuit Judges.
PER CURIAM:

Osvaldo Hernandez and Ricardo Leon were convicted on four counts of a fivecount indictment after a trial in the United States District Court for the
Southern District of Alabama. The jury found the defendants guilty of various
drug related offenses, including conspiracy to import marijuana, 21 U.S.C. Sec.
963; importation of marijuana, 21 U.S.C. Sec. 952(a); possession with intent to
distribute marijuana, 21 U.S.C. Sec. 841(a)(1); and conspiracy to possess with
intent to distribute marijuana, 21 U.S.C. Sec. 846. The defendants were found

not guilty of violating 21 U.S.C. Sec. 848, the operation of a continuing

criminal enterprise. On appeal, Leon, who is Hispanic, urges that the district
court erred in overruling as untimely his objection based on Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).1 Both appellants
complain of certain evidentiary rulings made by the district court, and they also
claim that the government's failure to produce seven lost audio tapes
constituted reversible error under the rule announced in Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm.
The Batson Claim
2

Leon contends that the prosecutor exercised her peremptory challenges in a

discriminatory fashion in violation of Batson.2 He also asserts that the sixth
amendment imposes a "fair cross-section of the community" condition upon the
composition of petit juries and that the prosecutor's exercise of her peremptory
challenges resulted in a violation of that requirement.3 The government first
maintains that the district court correctly ruled that Leon waived any objection
to the prosecutor's exercise of her peremptory challenges. Alternatively, the
government cites binding authority in this circuit which would prohibit Leon,
an Hispanic, from raising an equal protection claim based upon the exclusion of
black persons from the selection of a petit jury. See United States v. RodriguezCardenas, 866 F.2d 390 (11th Cir.1989). The unusual circumstances evidenced
by the record, which is unfortunately incomplete, warrant a conclusion that
Leon objected in a timely fashion.4 Assuming such, Rodriguez-Cardenas
nonetheless forecloses Leon's claim. "Batson's equal protection rationale limits
[Leon] to the claim that the prosecutor unfairly excluded Hispanics from the
jury. [Leon does] not have standing, under Batson, to challenge the prosecutor's
exercise of [her] peremptory challenges" to exclude five black persons.
Rodriguez-Cardenas, 866 F.2d at 392.5 The Evidentiary Issues

Hernandez and Leon next charge that the district court abused its discretion by
excluding evidence offered to support their defense of entrapment.6 Through
the testimony of two government agents, Lawrence Winberg and Ernest
Jacobsen, and Michael Brown, a prisoner who claimed to have been entrapped
but who pleaded guilty to drug trafficking violations, the appellants hoped to
expose the inducement tactics allegedly employed generally by government
agents in the conduct of Operation Skymaster, a government undercover
operation, and specifically by Ellis McKenzie, a confidential source relied upon
by the government. Such evidence, they contend, would support their position
that the government induced them to commit the offenses charged in the
indictment, and they rely upon Fed.R.Evid. 404(b) and United States v. Cohen,
888 F.2d 770 (11th Cir.1989) as authority for the admissibility of this evidence.

Rule 404(b) forbids the admission of evidence of other acts solely to prove the
character of a person as a means of showing that he acted in conformity
therewith. Such evidence may be admissible, however, "for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Fed.R.Evid. 404(b). In Cohen, this
court reversed the Cohens' convictions because "[b]y preventing the
introduction of relevant evidence of the prior conduct of an essential
government witness, the [district] court deprived the Cohens from presenting
an adequate defense and thus deprived them of a fair trial." Cohen, 888 F.2d at
777. The "relevant evidence" excluded would have established that the
government's key witness, an executive with a carpet manufacturing company
who pleaded guilty in the case in exchange for an agreement to testify against
the Cohens, in the past had engaged in a scheme nearly identical to the one for
which he and the Cohens were indicted and that he had concocted and managed
the scheme without the knowledge of the manufacturer's former management.
Such evidence would have demonstrated that the government witness had the
wherewithal to devise and manage this second kickback scheme without
present management's (the Cohens') knowledge and thus would have
significantly affected the jury's consideration of the Cohens' guilt or innocence.
In reversing, the court observed that where the proffered evidence bears a
special relevance to a disputed issue and where no other practical means exist to
prove the point, the trial court should admit the evidence. Id. at 776.

Here, both Winberg and Jacobsen testified extensively about the government
undercover operation. During their testimony, the agents identified the various
government operatives and confidential informants involved in Operation
Skymaster and in the investigation and arrest of the appellants. They also
disclosed the tactics which those operatives and informants employed to
infiltrate the drug smuggling business and to gain the trust of the individuals
involved in the illegal scheme. Both witnesses revealed that the agents and
informants in this case, including Ellis McKenzie, had been involved in other
similar cases, and they acknowledged that McKenzie had been paid for his
efforts. The evidence excluded by the district court as irrelevant was proffered
testimony that these agents and informants participated in the capture and arrest
of a particular individual, Michael Brown. Such additional evidence would be
relevant only if the testimony of Michael Brown was also relevant, that is, if
Brown's testimony bore a special relevance to a disputed issue and if no other
practical means existed to prove the point.

Leon and Hernandez sought to introduce the testimony of Brown as proof that
Ellis McKenzie induced them to participate in the drug smuggling venture in
the instant case just as he had induced Brown to smuggle marijuana on another

occasion. However, though asserting generally that McKenzie "talked me into

smuggling" and "hounded me," Brown failed to point to specific instances or
concrete examples of such tactics sufficient to support a finding by the jury that
McKenzie actually committed the prior similar act of inducing Brown.7 That
Brown pleaded guilty to certain drug offenses is one fact which supports a
contrary conclusion. More important, however, is Brown's response to
questions concerning the enticements and inducements offered by McKenzie.
"Well, nothing--he didn't offer to pay me, if that's what you mean, no." ROA
Vol. 8 at 1219. "In the Rule 404(b) context, similar act evidence is relevant
only if the jury can reasonably conclude that the act occurred and that the
[named individual] was the actor." Huddleston, 485 U.S. at 689, 108 S.Ct. at
1501, 99 L.Ed.2d at 782. Brown's plea of guilty coupled with his response
tends to foreclose a conclusion that he was induced by McKenzie.
7

Further, unlike the situation in Cohen where there was evidence of a previous
scheme identical to the one for which the defendants are being tried to show
that they were ignorant of the instant scheme, Leon and Hernandez offer only
general allegations that one individual was "hounded" into violating the law.
There was neither specific evidence of how that occurred nor evidence that
identical tactics were employed to induce Leon and Hernandez to commit these
charged crimes. Absent such specificity and similarity, the manner in which
one individual is ensnared by the government on another occasion is simply not
relevant to whether these two appellants were likewise induced.

The proffer in this case clearly falls short of bearing a special relevance to the
disputed issue of the government's inducement tactics. That Brown was
captured via the government's undercover operation is not enough to make his
testimony, or the testimony of Winberg and Jacobsen, relevant. " 'Relevancy is
not an inherent characteristic of any item of evidence but exists only as a
relation between an item of evidence and a matter properly provable in a case.' "
Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501, 99 L.Ed.2d at 782, quoting
Advisory Committee's Notes on Fed.R.Evid. 401. Brown's testimony,
considered in its entirety and in conjunction with the other admissible evidence,
provides neither insight into nor reliable evidence about the tactics purportedly
utilized by McKenzie so as to overcome the confusion and prejudice likely to
result from testimony of a drug smuggling venture different from the one
before the jury. Moreover, considering Brown's statement that he was neither
enticed nor induced by McKenzie, we can conceive of no way that testimony of
Brown's alleged entrapment could bear upon McKenzie's efforts to induce
Leon and Hernandez. The district court permitted the appellants to inquire
thoroughly about the agents, informants and tactics involved in Operation
Skymaster. That evidence placed the tactics of the government and the

appellants' defense of entrapment squarely before the jury. The point having
been made, the court properly excluded the appellants' evidence with respect to
the government's investigation, arrest and prosecution of Michael Brown in
another case.
9

The appellants also contend that the district court erred in excluding proffered
testimony by an attorney, Al Pennington, that Agent Winberg lied to him in
another case. The court allowed Pennington to express an opinion as to
Winberg's general reputation for veracity but excluded his testimony about the
specific instance which formed the basis of that opinion. "Fed.R.Evid. 608(b)
prohibits a party from introducing extrinsic evidence of prior misconduct
merely to impeach the general credibility of a witness...." United States v.
Calle, 822 F.2d 1016, 1021 (11th Cir.1987). However, despite the prohibition
of Rule 608(b), extrinsic act evidence should be admitted "where it is
introduced to disprove a specific fact material to the defendant's case." Id. at
1021. Hernandez and Leon specifically sought to establish the existence of an
individual named "Carlos" who they contend procured the marijuana the
importation and possession of which ultimately led to their arrest. Pennington
had no knowledge of "Carlos." He testified that Agent Winberg told a lie about
an individual in another case prosecuted pursuant to Operation Skymaster and
that this individual's name surfaced in the instant case. The "individual" was
never identified. Based upon this proffer, the district court correctly ruled that
Winberg's lie to Pennington in another case would neither prove nor disprove
the existence of "Carlos" and that Pennington's testimony was inadmissible.

10

Finally, Leon and Hernandez maintain that the cumulative effect of the court's
evidentiary rulings violated their sixth amendment right to present a defense.
Our review of the record indicates that their attorneys extensively crossexamined the government's witnesses and presented a vigorous defense. The
district court allowed the appellants wide latitude to inquire into the
government's conduct, excluding only that evidence which was irrelevant to the
issues before the jury. Their allegation to the contrary is without merit. See
Calle, supra (no sixth amendment violation where the defense is permitted to
elicit sufficient evidence from which the jury can gauge credibility, motive and
bias).

The Brady Issue

11

Leon and Hernandez insist that the government's loss of and subsequent
inability to produce seven audio tapes constitutes a violation of the due process
clause as articulated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963). Brady prohibits the suppression by the government of

evidence that is favorable to the accused and that is material to either guilt or
punishment, irrespective of the good faith or bad faith of the prosecution. 8 In
order to establish a Brady violation, a defendant must show the following:
12 that the government possessed evidence favorable to the defendant (including
(1)
impeachment evidence); (2) that the defendant does not possess the evidence nor
could he obtain it himself with any reasonable diligence; (3) that the prosecution
suppressed the favorable evidence; and (4) that had the evidence been disclosed to
the defense, a reasonable probability exists that the outcome of the proceedings
would have been different.
13

United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.1989) (citations
omitted).

14

Here, no Brady violation has been established or proved. Brady and its progeny
apply to evidence possessed either by the prosecutor or by someone over whom
he has control. See Meros, 866 F.2d at 1309 (emphasis added). Leon and
Hernandez do not dispute the government's representation that the tapes have
been lost. Materials not possessed by the government cannot be suppressed
within the meaning of Brady. Nor can the appellants prevail by arguing that the
police failed to preserve potentially exculpatory evidence. Absent "bad faith on
the part of the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51,
57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289 (1989). The appellants here
expressly refused to allege "bad faith."

15

Accordingly, the judgment of the district court is

16

AFFIRMED.

See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit

Hernandez and Leon were tried along with several other defendants. Counsel
for one of the defendants not a party to this appeal initially made the objection.
Leon joined in the objection; Hernandez did not

In Batson, the Supreme Court of the United States held that a prosecutor's
exclusion of potential jurors from a petit jury based solely upon their
membership in the same racial group as the defendant violated the equal
protection rights of both the excluded venirepersons and the defendant. Though

Batson involved a constitutional challenge based on the equal protection clause

of the fourteenth amendment, the fifth amendment affords similar protection in
cases tried in federal court. United States v. Dennis, 786 F.2d 1029 (11th
Cir.1986), as modified at 804 F.2d 1208, 1209 n. 21 (11th Cir.1986), cert.
denied, 481 U.S. 1037, 107 S.Ct. 1973, 95 L.Ed.2d 814 (1987)
3

Recently, the Supreme Court held that the sixth amendment, which requires
that venires be representative of a fair-cross-section of the community, provides
no basis for exacting similar imposition upon the make up of petit juries. See
Holland v. Illinois, 493 U.S. ----, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990).
Holland disposes of this aspect of Leon's appeal, and we give it no further
consideration

An inquiry into the government's exercise of its peremptory challenges is

initiated by a defendant's timely objection. Batson, 476 U.S. at 99, 106 S.Ct. at
1724, 90 L.Ed.2d at 90. In the only line of reported appellate court opinions to
address this issue, the Fifth Circuit Court of Appeals decided that a "Batson
objection must be made before the venire is dismissed and before the trial
commences." United States v. Romero-Reyna, 867 F.2d 834, 836 (5th
Cir.1989); United States v. Erwin, 793 F.2d 656, 657 (5th Cir.1986), cert.
denied, 479 U.S. 991, 107 S.Ct. 589, 93 L.Ed.2d 590 (1986). But see, United
States v. Allen, 666 F.Supp. 847, 856 (E.D.Va.1987) (objection timely
although all of the unselected venirepersons had been released and the trial was
about to begin because (1) the jury had not yet been impaneled, (2) the
defendant objected to the government's conduct immediately after the alternate
juror was selected and (3) Batson was announced after the trial had concluded),
aff'd sub nom. United States v. Harrell, 847 F.2d 138 (4th Cir.1988)
Here, the jury was selected on September 12, 1988, before Senior District
Judge Hand. No transcript of those proceedings is included in the record on
appeal. However, at the conclusion of the selection process, the jury, the
defendants and most of the defendants' attorneys reported to another courtroom
where Judge Howard, the judge scheduled to preside over the trial, awaited to
commence the trial. Two attorneys who represented defendants other than Leon
remained in Judge Hand's courtroom to strike juries for other cases in which
they were counsel. Primarily because of the absence of these attorneys, Judge
Howard excused the trial jurors without administering the oath of duty and
instructed them to return the next day for the start of the case. The court then
entertained various motions and established certain procedures for the conduct
of the trial. The court instructed the attorneys present not to "bring up any
motion that some lawyer who's not here is interested in." ROA Vol. 3 at pp. 811. The next morning, prior to the administration of the oath and prior to the
commencement of the trial, the two attorneys who were not present the day

before, joined by Leon, raised the Batson objection. The court overruled the
objection as untimely.
The record before us does not reflect what transpired either during voir dire or
after the selection of the jury. Nor does the record indicate on what day or at
what time the unselected venirepersons were discharged. Without announcing a
rule appropriate for all cases, we conclude that under the circumstances of this
case the objection was not waived.
5

Though a close reading of Holland v. Illinois, supra, indicates that some

justices of the Court might hold that a defendant has standing to make an equal
protection challenge where a prosecutor exercises peremptory challenges to
exclude venirepersons of a discrete minority even though the defendant is not a
member of that minority group, that case "does not resolve the question
whether a defendant of a race different than that of the juror may challenge the
race-motivated exclusion of jurors under the constitutional principles that
underpin Batson." Holland, 493 U.S. at ----, 110 S.Ct. at 811, 107 L.Ed.2d at
922 (Kennedy, J. concurring). Faced with only intimations from the Supreme
Court, we must adhere to binding authority in this circuit

On appeal, the district court's evidentiary rulings may be disturbed only where
there appears a clear abuse of discretion. See United States v. Kelly, 888 F.2d
732, 743 (11th Cir.1989)

See Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 1499, 99
L.Ed.2d 771, 779-80 (1988). In Huddleston, the Supreme Court resolved a
conflict among the circuit courts by holding that the district court need not
make a preliminary finding that the alleged prior similar conduct in fact
occurred before admitting it into evidence. The court instructed that the
admissibility of prior act evidence is guided by: (1) the requirement of Rule
404(b) that the evidence be offered for a proper purpose; (2) the requirement of
Rule 402, as enforced by Rule 104(b), that the evidence be relevant; and (3) the
requirement of Rule 403 that the probative value of the similar act evidence
outweigh the potential for unfair prejudice, confusion or waste of time. See
Huddleston, 485 U.S. at 691, 108 S.Ct. at 1502, 99 L.Ed.2d at 783-84

The Brady rule applies to both impeachment evidence and exculpatory

evidence. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87
L.Ed.2d 481 (1985)