United States v. Goris , 876 F.3d 40 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 17-1104
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ IGNACIO GORIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and Levy, District Judge.
Robert B. Mann, with whom Robert B. Mann Law Office was on
brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Stephen G. Dambruch, Acting United States Attorney, was on
brief, for appellee.
November 27, 2017

Of the District of Maine, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant José Ignacio
Goris, convicted of a drug-trafficking offense in the aftermath of
a government sting, strives to convince us that he should be
granted a new trial based on denied discovery and alleged
instructional error. We are not persuaded: after articulating the
standard for materiality pertaining to discovery in criminal cases
(a matter of first impression in this circuit), we uphold both the
district court's denial of the requested discovery and its jury
instructions. Accordingly, we affirm.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case. In the late spring and summer of 2014, the defendant was
the target of an elaborate sting operation undertaken by the Drug
Enforcement Administration (DEA). Believing himself to be
communicating with a representative of a "reputable" drug
trafficker (an oxymoron of the first order), the defendant had
extensive discussions with an undercover DEA agent regarding his
purchase of one to five kilograms of cocaine. The "reputable"
drug trafficker had previously provided the defendant with subpar
product. Once bitten, twice shy, so the defendant dealt cautiously
with the trafficker's supposed representative (the undercover
agent). While the defendant repeatedly told the undercover agent
that his goal was to purchase from one to five kilograms of
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cocaine, he insisted that he could not make a large purchase
without first testing the product.
At a meeting in the agent's car, the defendant explained
that he wanted to take one kilogram of cocaine and test it. If
the sample proved satisfactory, he would then consummate the
purchase. Reaching back behind the seat, the defendant handled a
dummy kilogram that had been placed there by the agent and said,
"that feels good." Later in the day, the two men met inside a
home improvement store and made arrangements for the final handoff:
the defendant would remove a brick of cocaine (approximately one
kilogram) from the agent's car and take it home for testing.
The test never came to pass. After the defendant
retrieved the brick (the dummy kilogram, as matters turned out)
from the agent's car, he was arrested on the spot. A federal grand
jury subsequently charged him with attempting to possess 500 grams
or more of cocaine with intent to distribute. See 21 U.S.C.
§ 841(a)(1).
In the course of routine pretrial discovery, the
government produced materials making clear its intention to offer
at trial the recorded conversations between the defendant and the
undercover agent, including the conversation that occurred on the
day of the defendant's arrest inside the home improvement store
(the August 14 recording). The defendant moved for additional
discovery related to the August 14 recording, but the district
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court (Lisi, J.) denied his discovery motion on two grounds,
finding that materiality had not been shown and that the
information sought was proprietary in nature. For reasons not
relevant here, the case was reassigned to a different trier and,
immediately before the start of trial, the defendant effectively
renewed his discovery motion. The district court (McConnell, J.)
refused to revisit the earlier ruling.
At trial, the defense sought to persuade the jury that
the defendant never actually intended to purchase the cocaine but,
rather, merely wanted a sample of the drug for testing. The
defense also suggested that the August 14 recording had been
manipulated by the government and could not be considered credible.
The jury was unconvinced: it found that the defendant had attempted
to possess 500 grams or more of cocaine with intent to distribute.
Judge McConnell imposed a five-year term of immurement and this
timely appeal followed.
II. ANALYSIS
In this venue, the defendant, represented by new
appellate counsel, advances two claims of error. First, he argues
that the district court abused its discretion in denying his motion
to examine the original of the August 14 recording and the software
that generated and stored it. Second, he finds fault with the
district court's instructions regarding the jury's duty to find,
beyond a reasonable doubt, that the defendant had attempted to
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possess 500 grams or more of cocaine with intent to distribute.
We discuss these claims of error sequentially.
A. Discovery.
We begin with the defendant's plaint that the district
court improperly denied his request for additional pretrial
discovery. That request was brought under Federal Rule of Criminal
Procedure 16, and a district court's determinations under Rule 16
are reviewed for abuse of discretion. See United States v. Correa-
Alicea, 585 F.3d 484, 493 (1st Cir. 2009). We caution, though,
that an abuse of discretion will not be found in this context
"unless the objecting party can show prejudice." United States v.
Chiaradio, 684 F.3d 265, 276 (1st Cir. 2012) (citing United States
v. Spinosa, 982 F.2d 620, 631 (1st Cir. 1992)).
In criminal cases, standard types of discovery are
routinely exchanged shortly after the arraignment, without the
necessity of any motion. See Fed. R. Crim. P. 16(a)-(b); D.R.I.
R. Cr. 16. Where circumstances warrant, however, a defendant may
seek additional discovery. To this end, Rule 16 provides that,
upon a defendant's request, "the government must permit the
defendant to inspect . . . data, . . . tangible objects, . . . or
copies or portions of any of these items, if the item is within
the government's possession, custody, or control" and "the item is
material to preparing the defense." Fed. R. Crim. P. 16(a)(1)(E).
The defendant, as the moving party, bears the burden of showing
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materiality. See United States v. Carrasquillo-Plaza, 873 F.2d
10, 12 (1st Cir. 1989).
Although our court has not yet defined "materiality" in
this context, we do not write on a pristine page. The courts of
appeals have displayed remarkable uniformity in concluding that it
is not enough that what is sought "bears some abstract logical
relationship to the issues in the case." United States v. Ross,
511 F.2d 757, 762 (5th Cir. 1975). Rather, a showing of
materiality requires "some indication" that pretrial disclosure of
the information sought "would have enabled the defendant
significantly to alter the quantum of proof in his favor." Id. at
763; accord United States v. Caro, 597 F.3d 608, 621 (4th Cir.
2010); United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir.
2003); United States v. Graham, 83 F.3d 1466, 1474 (D.C. Cir.
1996); United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991);
United States v. Marshall, 532 F.2d 1279, 1285 (9th Cir. 1976).
This significant alteration may take place in a myriad of ways,
such as "uncovering admissible evidence, aiding witness
preparation, corroborating testimony, or assisting impeachment or
rebuttal." United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir.
1993) (citations omitted).
In order to uphold a district court's denial of a request
for additional discovery, we do not demand epistemological
certainty that no discoverable information was withheld from the
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defendant. See United States v. Rosario-Peralta, 199 F.3d 552,
559 (1st Cir. 1999). If, say, a defendant's discovery request is
grounded in a speculative theory, a district court's decision to
deny that request is not an abuse of discretion. See id.
Here, the defendant premised his request for additional
discovery on the notion that the government had doctored or
otherwise manipulated the recorded conversations supporting its
case (and, specifically, that the August 14 recording had been
edited). The district court prudently convened an evidentiary
hearing to give the defendant an opportunity to put some flesh on
this bare-boned allegation. At the hearing, defense counsel
introduced expert testimony from a former law enforcement officer
that, based on his experience with recording technology, the moment
when the background noise fell to zero in the August 14 recording
might suggest that the recording had been modified. On cross-
examination, though, the witness's experience with recording
technology proved to be of little value: despite his years in the
field, he was unfamiliar with the type of recording technology
employed in this case and had never used that technology.
This lack of familiarity was a critically important
datum. As explained in an affidavit submitted by the government
in the district court, the recording system used in this case
allowed agents to record communications digitally on a secure,
web-based platform, which the recording officer accessed through
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a cellular connection. Once a recording was initiated, a unique
file would be created in the database. This file could be accessed
for playback through a web-based platform, but could not be deleted
or modified. That the recording technology relied on cellular
transmissions left it at the mercy of the strength of the cellular
signal and, thus, explained the poor quality of the resulting
recordings (including the background noise falling to zero at
times).
Nor was the expert's lack of familiarity the only
infirmity in the defendant's proffer. At the hearing, the defense
offered no specific evidence of what the defendant purportedly had
said in the "missing" portions of the August 14 recording. This
gap in the proffer is telling because the defendant was available
to testify at the discovery hearing and presumably could have
supplied the missing information.
Viewed against this backdrop, the district court hardly
can be faulted for denying the discovery request. With the
district court's endorsement of the credibility of the
government's affidavit, the undermining of the defense's expert
testimony, and the absence of any attempt to fill in the
purportedly missing portion of the recorded conversation, it
cannot plausibly be said that the district court abused its
discretion in concluding that the requested discovery would not
have tipped the balance on any relevant issue. Put another way,
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the defendant failed to provide some indication that allowing the
discovery request "would have enabled [him] significantly to alter
the quantum of proof in his favor."1 Ross, 511 F.2d at 763.
Consequently, the district court's determination that the
defendant had failed to show materiality was well within the
encincture of its discretion.2 See id. at 762; see also Rosario-
Peralta, 199 F.3d at 559 (explaining that when an appellant does
"little more than speculate" as to what his discovery request may
yield, an appellate court "simply cannot hold that the district
court abused its discretion" in denying the request).
B. Jury Instructions.
The defendant's second claim of error implicates the
district court's instructions regarding the jury's duty to
determine, beyond a reasonable doubt, whether the defendant
1 The defendant claims that he should have at least been given
access to the original version of the August 14 recording stored
in the database so that he could compare it to the copy he had
received from the government. But granting this request in the
absence of some indication of tampering would be highly unorthodox:
under Rule 16, a defendant has no absolute right, on demand, to
require the court to help him independently confirm the integrity
of materials produced in discovery. In the case at hand, we are
satisfied that the district court did not abuse its discretion
when it denied even this limited request based on its acceptance
of the government's affidavit indicating that the file could not
have been edited.
2 Since we conclude that the district court did not abuse its
discretion in ruling that the defendant failed to show materiality,
we need not address the district court's alternative holding that
the additional discovery should be denied because the defendant's
request involved the production of proprietary information.
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attempted to possess at least 500 grams of cocaine with intent to
distribute. The importance of the drug-quantity finding cannot be
overstated: it triggered a mandatory minimum sentence of five
years. See 21 U.S.C. § 841(b)(1)(B).
In the context of jury instructions, a preserved claim
of error alleging that the judge gave the jury a faulty
interpretation of the law is normally reviewed de novo. See United
States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012). In contrast, a
preserved claim of error alleging that the judge did not adequately
explain the law or explained it in confusing terms is normally
reviewed for an abuse of discretion. See United States v. Ranney,
298 F.3d 74, 79 (1st Cir. 2002). Unpreserved objections of either
stripe are reviewed only for plain error. See United States v.
Deppe, 509 F.3d 54, 58 (1st Cir. 2007).
Although these nuanced standards of review are sometimes
difficult to apply, we are spared any such difficulty here. The
government has agreed, at least for argument's sake, both that the
defendant's claim of instructional error was preserved and that
appellate review of that claim is de novo. We proceed accordingly.
Jury instructions are meant to "furnish a set of
directions composing, in the aggregate, the proper legal standards
to be applied by lay jurors in determining the issues that they
must resolve in a particular case." United States v. DeStefano,
59 F.3d 1, 2 (1st Cir. 1995). A reviewing court is tasked with
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examining whether those instructions, "taken as a whole, show a
tendency to confuse or mislead the jury with respect to the
applicable principles of law." United States v. Phath, 144 F.3d
146, 149 (1st Cir. 1998) (quoting United States v. Fulmer, 108
F.3d 1486, 1494 (1st Cir. 1997)). So long as that standard is
satisfied, the district court's choice of phrase is "largely a
matter of discretion." DeStefano, 59 F.3d at 2.
In order to convict the defendant, the jury had to find
beyond a reasonable doubt that he attempted to possess 500 grams
or more of cocaine with the intent to distribute. The defendant
concedes that, at several points during its jury instructions, the
district court accurately delineated these requirements. But in
the defendant's view, these correct statements were obscured
beyond redemption by two other statements that the district court
made. We turn to these other statements.
To begin, the district court told the jury:
For you to find Mr. Goris guilty of this crime,
you must be convinced that the Government has
proven each of the following things beyond a
reasonable doubt: First, that on August 14th,
2014, Mr. Goris attempted to possess 500 grams
or more of cocaine; second, that Mr. Goris did
so knowingly and intentionally; and third,
that he did so with specific intent to
distribute cocaine over which he had actual or
constructive possession. Now, it's not
necessary for you to be convinced that Mr.
Goris actually delivered the cocaine to
someone else or that he made any money out of
the transaction. It is enough for the
government to prove beyond a reasonable doubt
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that he attempted to possess what he believed
was cocaine and that he intended to transfer
it or some of it to someone else.
The defendant complains that the last sentence in this passage
makes no mention of the need to prove that he had attempted to
possess 500 grams or more of cocaine.
This plaint lacks any semblance of merit. The sentence
complained of was plainly an elaboration on the preceding
instruction provided by the court. To require a trial court to
bloat each statement in a jury instruction by incorporating within
it all the details of the charged offense is to deny the jury not
only the clarity of properly segmented instructions but also the
benefits of proper syntax. We discern no error.
The second statement upon which the defendant harps
occurred in a passage in which the district court told the jury:
Let me finally now define knowledge of the
controlled substance. The Government must
prove that the offense involved a particular
type and quantity of drug and that Mr. Goris
knew, believed, or intended that the offense
involved 500 grams or more of cocaine.
However, the Government does not have to prove
that Mr. Goris knew, believed or intended that
he was distributing or attempting to possess
with intent to distribute that particular drug
type or that particular quantity. However,
the Government must prove beyond a reasonable
doubt that Mr. Goris knew, believed or
intended that the offense involved 500 grams
or more of cocaine.
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The defendant spotlights the third sentence in this passage,
arguing that it "completely undercuts" the court's correct
instruction about the government's burden of proving the offense.
We do not agree. Read in context, the third sentence
was likely an attempt by the district court to clarify for the
jury that the government did not have to prove any exact drug
quantity (say, 525 grams) beyond a reasonable doubt. In the last
analysis, though, we need not decide whether this single sentence,
read apart from the rest of the court's charge and stripped bare
of context, might be erroneous. Jury instructions must be read as
a whole, not in some sort of splendid isolation. See United States
v. Pennue, 770 F.3d 985, 990 (1st Cir. 2014). Thus, a single
sentence in a court's jury instructions cannot be yanked from its
contextual moorings and construed in a vacuum. See United States
v. Gomez, 255 F.3d 31, 39 (1st Cir. 2001) (rejecting claim that
single sentence in otherwise "meticulous" instruction constituted
error and explaining that claim "focus[ed] the lens of inquiry too
narrowly"). Rather, a reviewing court must consider whether jury
instructions, taken as a whole, are reasonably likely to have
misled the jury. See Phath, 144 F.3d at 149.
In this case, the district court repeated, over and over
again — including immediately before and immediately after the
challenged sentence — that the government had to prove beyond a
reasonable doubt that the defendant knew, believed, or intended
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that the offense involved 500 grams or more of cocaine. The
defendant readily admits that the district court properly
explained the jury's obligations several times throughout the
course of its jury instructions. So, too, the verdict form
accurately conveyed that drug quantity was an element of the
offense. Amidst this bevy of accurate statements, an argument
that the challenged sentence altered the meaning of the
instructions trenches on the frivolous. This is simply not a case
where the jury was reasonably likely to have been misled by the
court's instructions. See, e.g., Pennue, 770 F.3d at 990 (finding
fact that "erroneous instruction was followed immediately by a
correct instruction" weighed in favor of conclusion that jury was
not reasonably likely to have been misled as to applicable law).
III. CONCLUSION
We need go no further. We hold that the district court's
decision to deny the defendant's Rule 16 motion was not an abuse
of discretion. We further hold that the district court's jury
instructions, taken as a whole, were not erroneous. Consequently,
the judgment of the district court is
Affirmed.
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