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United States v. Helen Mary Formanczyk, 949 F.2d 526, 1st Cir. (1991)
United States v. Helen Mary Formanczyk, 949 F.2d 526, 1st Cir. (1991)
2d 526
Helen Mary Formanczyk was convicted on one count of possession with intent
to distribute more than one kilogram of a substance containing a detectable
amount of heroin. After her conviction, the district court denied a motion for
new trial based on the government's failure to disclose information acquired
after its initial discovery response regarding the location of a confidential
informant and his potential availability as a trial witness. This appeal turns on
the government's continuing duty to revise its discovery responses once it has
asserted its privilege under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623,
1 L.Ed.2d 639 (1957).
heroin from Cyprus to the United States on February 11 and had him check into
a hotel room in Boston the following afternoon. Over the next few days, more
than one dozen telephone calls to and from Lebanon were recorded in which
Toufic and Kuba discussed the specifics of the transaction. Their initial plan
called for Kuba to travel to Detroit to meet a "woman" to whom he would
deliver the heroin; in response to Kuba's complaints, however, Toufic
ultimately agreed to have the courier travel to Boston to pick up the drugs.
3
Agent Stephen Assarian testified about the receipt of three calls at the DEA
office the afternoon of February 14 from a person whose voice he identified as
that of the appellant. Since Kuba had momentarily stepped out of the office,
two of those calls were answered by Assarian, but a third call--received at 4:00
p.m.--was answered by Kuba. Pursuant to this last call, Kuba and Formanczyk
agreed to meet at the lobby of the Holiday Inn on Blossom Street at 4:10 p.m.
that same afternoon. Armed with a travel bag where Assarian had placed
several plastic bags filled with heroin and covered them with a newspaper,
Assarian and Kuba headed over to the hotel in which, after some introductory
conversation, Formanczyk handed Kuba $1,000 in $50 bills and Assarian
handed over the bag containing the heroin.
As Formanczyk was preparing to leave, however, Assarian told her that the bag
belonged to his girlfriend and asked her if he could have it back. When
Formanczyk refused, Assarian asked her for the newspaper, which he said he
needed for school. This time Formanczyk complied with the request and
(according to the agent) looked into the bag, reached in and handled the
packages. Assarian also testified (and Formanczyk also denied) that when he
told appellant that "[i]t's supposed to be pretty good stuff, like 93%,"
Formanczyk responded by looking at him, nodding and walking away. As
Formanczyk attempted to hail a taxi, federal agents moved in for the arrest.
7 government intends to call only federal law enforcement officials in this case ...
The
The heroin delivered to the defendant in this case was carried into the United States
by an individual hired by unknown persons in Lebanon as a courier. Upon the
apprehension of the courier, in New York, he was promised that he could return
home, without being prosecuted, if he could simply follow his instructions regarding
the delivery of the heroin. Following the delivery of the heroin to the defendant, the
courier was permitted to leave the United States ... The courier ... resides in
Lebanon, however, and it is not possible to secure his presence for trial. Counsel for
the government is advised that to further identify the courier may cost him his life.
8
During the trial, however, appellant learned that the government had actually
assisted its informant Michel Kuba in his efforts to return to the United States
scarcely three months before the trial. Moreover, appellant discovered that
Kuba's version of appellant's actions at their critical meeting differed from
Agent Assarian's trial account in some significant respects which would have
bolstered her defense of lack of knowledge regarding the contents of the bag.
This formed the subject matter of appellant's motion for new trial; the motion
was summarily denied. On appeal, appellant re-assays the arguments she
presented to the district court.
II
9
10
The seminal case regarding the duty of the government to identify or produce
its informants is Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d
Williams, 496 F.2d at 382 (emphasis ours); see also United States v. Nutile,
550 F.2d 701, 703-04 (1st Cir.1977); United States v. De Jesus Boria, 518 F.2d
368, 371-73 (1st Cir.1975).
14
Relying on Williams, the government argues on appeal that once it asserted its
Roviaro privilege it had no duty to extend additional information regarding its
informants until the defendant had moved the court for an order directing the
government to produce this information and the court had overruled the
government's assertion of the privilege. Williams, 496 F.2d at 381. With this
we would agree completely if the only thing the government had declared in its
discovery response had been that it was asserting its privilege under Roviaro.
However, the government volunteered some additional information,
specifically, that the witness had left the United States and was out of the reach
of process. Once this statement was made, the government placed itself under a
continuing duty to keep the defendant informed of any changes coming to its
attention that might have rendered the contents of its discovery response
inaccurate, misleading or incorrect. Id. at 382; see also United States v. FerrerCruz, 899 F.2d 135, 140 (1st Cir.1990) ("Of course, under Fed.R.Crim.P. 16(c)
the government has a continuing duty to disclose discoverable evidence that has
come to light after the defendant's original discovery request"). The defense's
strategic decision whether to push for the presence of a particular witness at
trial clearly depended on the information it had available at the time and, given
the government's representation, it was reasonable for the appellant to believe
that such a request would have been an exercise in futility. To hold that even
under these circumstances the government did not have a duty to correct its
discovery responses until the defense had made a second request into the
identities of these witnesses would elevate form over substance and condone
prosecutorial actions that fall below Williams' reasonable diligence standard.
The government's duty "to produce correct information," Williams, 496 F.2d at
382, is not to be lightly undertaken.
15
With regard to the "new evidence" aspect of appellant's argument, a motion for
new trial on the grounds of
17
newly
discovered evidence will not be granted unless the moving party can
demonstrate that (1) the evidence was unknown or unavailable to the defendant at
the time of trial; (2) failure to learn of the evidence was not due to a lack of diligence
by the defendant; (3) the evidence is material, and not merely cumulative or
impeaching; and (4) it will probably result in an acquittal upon retrial of the
defendant.
18
United States v. Martin, 815 F.2d 818, 824 (1st Cir.1987) (quoting United
States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980)).
19
The new facts to which Kuba would presumably be testifying were that the
appellant did not handle the heroin packages and that she did not respond to any
statements concerning quality by Assarian. These facts fail to pass muster on
the third and fourth factors outlined above, as they would be primarily used to
impeach the testimony of at least three other agents who testified to the
contrary at trial and whom we must presume the jury believed. Moreover, even
if Kuba testified to these facts in a second trial, he could be impeached with his
previous signed statement to the contrary. Finally, we note the government's
proof of appellant's guilt was very strong. To the foregoing summary of the
evidence, we need only add that at the time of her arrest the agents seized from
appellant a piece of paper containing notations in which she divided "28" (the
number of grams in an ounce) into "1,000" (the number of grams in a
kilogram), and that she conceded that she had looked into the bag, seen the
white powder and figured that it was probably illegal though not conceding that
she knew it was heroin. Both of these factors are further proof concerning
appellant's knowledge of the contents of the bag. We therefore conclude that
the motion for new trial was properly denied.
20
Lastly, appellant argues that the district court erred in ruling that the transcripts
of Toufic's and Kuba's telephone conversations were admissible against her
under the co-conspirator exception of Fed.R.Evid. 801(d)(2)(E). This
contention is simply without merit. As our summary of the evidence evinces,
Toufic and Formanczyk were clearly co-conspirators in this illegal drug venture
and thus Toufic's statements to Kuba, made during the course of the conspiracy
and in furtherance of its purposes, were admissible against the appellant.
Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144
(1987). As for Kuba's statements, no objection was raised below and the
contention is therefore waived for purposes of appeal where, as here, no plain
error appears. United States v. Malik, 928 F.2d 17, 23 (1st Cir.1991).
22
Affirmed.