NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________________

No. 20-1531 ______________________

UNITED STATES OF AMERICA

v.

ALVIN HENRY, Appellant ______________________

On Appeal from the District Court of the Virgin Islands (D.C. No. 1:16-cr-26) Honorable Wilma A. Lewis ______________________

Submitted under Third Circuit L.A.R. 34.1(a) December 11, 2020

Before: SMITH, Chief Judge, CHAGARES and MATEY, Circuit Judges

Filed January 19, 2021

______________________

OPINION* ______________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Chief Judge.

In this direct appeal, Defendant Alvin Henry challenges the District Court’s denial

of his motion to dismiss the indictment for prosecutorial misconduct. First, Henry argues

that the Government violated Brady v. Maryland,

(1963), and Giglio v. United

States,

(1972), by failing to disclose impeachment-related evidence about

Henry’s cooperating co-defendant. Second, Henry contends that the Government’s failure

to preserve the luggage from which it seized the cocaine underlying his conviction denied

him a fair trial under California v. Trombetta,

(1984), and Arizona v.

Youngblood,

(1988).

The Government’s work appears to have been slipshod, but Henry’s appeal fails

because there was no constitutional violation. Defense counsel impeached Henry’s co-

defendant after disclosure of the Brady/Giglio material and secured a favorable jury

instruction. The exculpatory value of the luggage’s contents was not apparent to law

enforcement and could have been proved through other means, and there was no evidence

of bad faith by the Government. At bottom, these and the Government’s other failures

stemmed from negligence and not willful misconduct. The District Court did not err in

denying Henry’s motion to dismiss, so we will affirm.

I.

On November 2, 2016, Customs & Border Protection (CBP) officers searched

Henry’s bags at the St. Croix airport while he waited in the departure lounge for a flight to

Florida. They discovered bricks of cocaine in his luggage, and Henry was later indicted

along with a co-defendant, Lamech Matthew, for conspiracy to possess and actual

2 possession of cocaine with intent to distribute, in violation of various provisions of

. Matthew worked at the airport and facilitated the attempted drug trafficking;

he signed a plea agreement with the Government in December 2018. On January 22, 2019,

the lead Assistant U.S. Attorney (AUSA) notified Henry’s counsel by email that “Matthew

entered a plea late this afternoon with a supp. agreement to cooperate and testify against

your client.” A1179.1 The AUSA stated that under Matthew’s supplemental plea

agreement, the Government would recommend a four-level reduction in Matthew’s

sentence if he testified against Henry. The AUSA did not provide a copy of it.

At Henry’s jury trial, Matthew testified about his role in the conspiracy to traffic

cocaine. Matthew stated that individuals for whom he had previously trafficked drugs

pointed Henry out to him on November 1, 2016—the night before both men were

arrested—and told him that Henry would retrieve the cocaine that Matthew would secret

into the airport the following day. Matthew also testified that he had a plea agreement with

the Government under which he expected sentencing benefits from his testimony but did

not “have to call any names.” A313. During his direct testimony, he identified only Henry.

On cross-examination, Matthew refused to answer certain of defense counsel’s

questions related to other individuals involved in the drug trafficking. It became clear that

on top of his original plea agreement and the written supplement mentioned in the AUSA’s

January 2019 email, Matthew also had an oral cooperation agreement with the Government

1 Citations are to Defendant-Appellant’s Appendix (“A”). 3 under which he could decline to provide information identifying anyone other than Henry.2

Neither a copy of the supplemental plea agreement nor the existence of the oral cooperation

agreement was disclosed to the defense before trial. Defense counsel asserted that the

Government had violated Giglio by withholding the agreements, as each provided

impeachment evidence relevant to a critical witness’s potential bias. Defense counsel also

maintained that the identities of other co-conspirators were probative of Henry’s innocence

because she could call them as witnesses and adduce evidence that they did not know who

Henry was.

The District Court adjourned trial for the day and heard from the parties on possible

courses of action. Both the District Court and the Government were disinclined to hold

Matthew in contempt for refusing to answer questions that could identify other members

of the drug trafficking operation, given his reliance on agreements with the Government.

The Government suggested that the Court either strike Matthew’s testimony or declare a

mistrial. Defense counsel proposed, without prejudice to her moving to dismiss the

indictment for prosecutorial misconduct, that (1) Henry be permitted to introduce as

substantive evidence one of Matthew’s recorded post-arrest interviews with law

enforcement—in which he named certain names and admitted that he had lied in a prior

interview; (2) the Government be precluded from rebutting Matthew’s statements in the

2 The rationale for this unusual side agreement was that Matthew feared reprisals from members of the drug outfit. The AUSA believed that the identities of other participants were irrelevant to the two-person conspiracy charged in Henry’s indictment. 4 interview; and (3) the jury be instructed on the Government’s conduct in prosecuting

Henry. The District Court chose this approach.

Trial resumed. Defense counsel cross-examined Matthew about his motive to curry

favor with the Government and thereby benefit from the plea agreement and supplemental

plea agreement. She also introduced the supplemental plea agreement as an exhibit. She

then secured his refusal to answer questions about the identities of others involved in the

drug trafficking operation and, to supplement his non-answers, played for the jury portions

of Matthew’s recorded interview with law enforcement. The AUSA and defense counsel

ultimately agreed on a lengthy instruction, which the District Court read to the jury after

Matthew’s testimony. Among other things, the instruction stated that:

• the Government “had an obligation to disclose the supplement to the plea agreement to the defense” but did not do so before trial;

• the Government “also entered into an improper oral agreement” with Matthew by which he “was never required to provide any information that would reveal the identity of anyone other than Mr. Henry”;

• the oral agreement too was not disclosed to the defense before trial;

• the individuals whose identities Matthew refused to disclose “had larger roles in the conspiracy” than Henry allegedly did;

• the Government’s “tunnel vision in prosecuting Mr. Henry” led to the “unusual” arrangement whereby Matthew “did not have to comply with all the terms of the supplement to the plea agreement in order for the government to recommend” the four-level downward departure at Matthew’s sentencing; and

• how the Government “handled” Matthew’s testimony was “inconsistent with the regular course of business.”

5 A644–46. This instruction also stated that the jury could consider Matthew’s recorded

statements as substantive evidence.

The Government’s evidence, including Henry’s own post-arrest interview with law

enforcement, tended to show that Henry arrived in St. Croix with no intention of trafficking

drugs but obliged when his cousin’s friend asked him to transport some packages on his

flight to Florida. In the portions of his interview played for the jury, Henry gave conflicting

statements about whether he knew upon receiving the packages from Matthew that they

contained cocaine.

After both sides rested, the District Court repeated the lengthy instruction regarding

Matthew and then instructed the jury about Henry’s luggage, which the Government had

somehow lost after seizing the drugs. “The parties agree,” the Court explained, “that there

were various items in the bags that are not depicted” in the Government’s photographs of

the alleged cocaine bricks found in Henry’s bags. A1006. The Court went on:

Whether those ten packages were found in the bags is a fact for you to determine. . . . The parties also agree that the government had a duty to retain the two bags and all the items contained in those bags. The parties further agree that the government failed to retain those bags, and all the items contained in them. You may infer from the government’s failure to retain this evidence that the evidence was favorable to Defendant Henry. You are not required [to] so infer, however, since you are the sole judges of the facts.

A1006–07.

During closing, defense counsel argued that Matthew was biased and untrustworthy

because of: his recorded admission that he had lied in his prior interview; his multiple

undisclosed agreements with the Government; and his need to testify in a way that the

Government would consider truthful. Defense counsel also argued that Henry didn’t learn

6 anything about the cocaine until Matthew delivered the packages to him in the airport; that

the jury should infer that the contents of Henry’s luggage would have exonerated him

because they were those of a person taking a pleasure trip to Florida; and that Henry

believed the packages contained only cash.

The jury found Henry guilty on both the conspiracy and possession counts. Henry

then moved to dismiss the indictment, arguing that the Government violated Brady and

Giglio by suppressing the supplemental plea and oral cooperation agreements.3 The

District Court denied Henry’s motion and sentenced him to 48 months’ imprisonment

followed by a three-year term of supervised release. This appeal followed.

II.

We have appellate jurisdiction under

. The District Court of the

Virgin Islands had jurisdiction under

and

. We review

the denial of a motion to suppress for clear error as to the underlying factual findings and

exercise plenary review over the District Court’s application of the law to those facts.

United States v. Perez,

(3d Cir. 2002).

1. No Brady/Giglio violation. Under Brady, the Government’s suppression “of

evidence favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Brady,

. Exculpatory evidence under Brady includes

information that could be used to impeach a government witness. Giglio,

.

3 Before trial, the District Court denied Henry’s separate motion to dismiss the indictment for prosecutorial misconduct arising out of the loss of his luggage and their contents. 7 The Government concedes that the supplemental plea agreement and the oral cooperation

agreement were Giglio material. But Henry cannot show that he suffered prejudice from

the Government’s suppression of the evidence. See Dennis v. Sec’y, Pa. Dep’t of Corrs.,

, 284–85 (3d Cir. 2016) (en banc) (noting prejudice requirement).

If the government makes Brady evidence available during trial so that the defendant

is able to effectively use it, there is no prejudice—and thus no Brady violation. In United

States v. Johnson,

(3d Cir. 1987), our Court held that the Government did not

violate Brady by failing to provide the defendant with exculpatory fingerprint reports

before trial.

. The defendant made extensive use of the reports at trial—including

on cross-examination, by introducing the reports as evidence, and by arguing to the jury

that the reports supported acquittal—and the District Court precluded the Government from

presenting expert testimony about their significance to mitigate any potential unfairness.

Likewise, Henry used the Brady material extensively at trial. His counsel received

the supplemental plea agreement and learned of the contents of the oral agreement before

cross-examining Matthew. Counsel then asked Matthew about the sentencing benefits he

expected to receive under the supplemental plea agreement because of his testimony

against Henry; made clear that Matthew was refusing to “name names” as a result of his

oral agreement with the Government; introduced as substantive evidence Matthew’s prior

recorded interviews, in which he named certain names and admitted to previously being

untruthful; and secured a favorable instruction read to the jury at the end of Matthew’s

cross-examination. Consistent with Johnson, the Brady material surfaced during trial and

8 Henry effectively used it for all its impeachment value.4 See also United States v. Higgs,

(3d Cir. 1983) (holding that due process is satisfied by disclosure of

witness-credibility Brady material “the day that the witness testifies”).

2. No Trombetta/Youngblood violation. To establish a due process violation based

on law enforcement’s failure to preserve potentially exculpatory evidence, a defendant

must show: that the potentially exculpatory nature of the evidence was apparent at the time

of destruction or loss, Trombetta,

; the lack of “comparable evidence by

other reasonably available means,” id.; and that the government acted in “bad faith,”

Youngblood,

. None of these requirements is satisfied here.

To begin with, the supposedly exculpatory nature of the evidence would not have

been apparent to law enforcement at the time of the loss. Henry claims that the contents

of his luggage would have shown that the purpose of his trip to Florida was pleasure, not

to traffic drugs. But even so, the contents’ exculpatory value would not have been readily

apparent. That personal items redolent of a vacation may have been packed alongside

bricks of cocaine does little to exculpate the owner of the luggage from a drug distribution

conspiracy. The Government’s evidence tended to show that Henry agreed to courier the

4 The same lack of prejudice defeats Henry’s cursory argument that the District Court should have dismissed the indictment under its supervisory authority. “[P]rejudice sufficient for the District Court to intervene in a proper prosecution based upon its inherent authority occurs only where the Government engages in actions that place a defendant at a disadvantage in addressing the charges.” United States v. Wright,

(3d Cir. 2019). Because Henry suffered no prejudice, dismissal of the indictment under the District Court’s supervisory powers would have been inappropriate. See Gov’t of V.I. v. Fahie,

(3d Cir. 2005) (“[W]e do not expect that trial courts will dismiss cases under their supervisory powers that they could not dismiss under Brady itself.”). 9 drugs at a late juncture—on the night before his already-booked flight. Indicia in his

luggage of a pleasure trip to Florida jibes with that theory of the case.

What’s more, Henry had other avenues to obtain comparable evidence. For

example, Henry could have elicited the testimony of the officers who handled his luggage

to prove the missing contents. The CBP agents who searched Henry’s luggage were called

as witnesses at trial, yet he declined to ask them about the contents of his bags. Henry’s

situation thus presents circumstances far different from those in which a defendant lacks

comparable means of adducing the exculpatory value of lost or destroyed evidence. See,

e.g., United States v. Elliott,

, 643–44 (E.D. Va. 1999) (“[T]here is no

reasonably available alternative means of ascertaining the chemical contents of the residue

which was observed in some of the [destroyed] glassware.” (emphasis added)).

Nor does Henry offer evidence of bad faith. Unless a criminal defendant can show

bad faith on the part of police, “failure to preserve potentially useful evidence does not

constitute a denial of due process of law.” Youngblood,

; see also United

States v. Deaner,

(3d Cir. 1993). But Henry argues only that the

Government’s failure to preserve his luggage violated police procedures and, ipso facto,

establishes bad faith. Precedent forecloses this argument. See, e.g., Youngblood,

; Deaner, 1 F.3d at 200–01; United States v. Ramos,

(3d Cir. 1994)

(holding that destruction of evidence in violation of established rules and policy did not,

alone, warrant finding of bad faith). Bad faith instead turns on “the police’s knowledge of

the exculpatory value of the evidence at the time it was lost or destroyed.” Griffin v. Spratt,

(3d Cir. 1992) (quoting Youngblood,

n.*). Nothing suggests

10 anyone’s knowledge that the personal items Henry claims were in his luggage and

supposedly augured a pleasure trip to Florida had any tendency to exculpate him for

conspiring to traffic drugs.5

* * *

Finally, we reject Henry’s contention, if advanced as an independent argument, that

the District Court should have dismissed the indictment as a sanction for the Government’s

combined failures. Henry’s prosecution—while far below the standard that we expect and

the public should demand—did not include any “shocking, outrageous, and clearly

intolerable” conduct that would warrant dismissal on “fundamental fairness” grounds.

United States v. Nolan-Cooper,

, 230–31 (3d Cir. 1998) (quoting United

States v. Mosley,

(10th Cir. 1992)). Consider that, though the AUSA

failed to provide Matthew’s supplemental plea agreement to defense counsel before trial,

he did contemporaneously email Henry’s attorney the basic terms of the agreement.6 Such

5 At all events, the District Court’s instruction permitted the jury to draw an inference favorable to Henry from the Government’s failure to preserve the luggage, likely mitigating any unfairness. 6 Henry identifies the Government’s other missteps to try to trace a pattern of egregious misconduct. For example, the AUSA misinformed the Court that Matthew’s testimony against Henry was untethered to his plea agreements, misidentified the date and status of Henry’s written plea agreement, and failed at first to produce all correspondence relating to negotiations of the plea agreements. But the record suggests that these too were negligent mistakes, eventually corrected by counsel or remedied by the District Court. For instance, the Court ordered a full production of all correspondence relating to Matthew’s plea and cooperation agreements. See, e.g., United States v. Kubini,

(W.D. Pa. 2014) (“[T]he appropriate remedy which results from the inconsistent information provided by the Government is simply to order the Government to produce any such materials rather than to order the extreme sanction of dismissal.”).

11 conduct reflects a negligent misunderstanding of Brady and Giglio rather than the sort of

“egregious” misconduct that justifies dismissal. Id.; see also Fahie,

, 254–

55 (“rare sanction” of dismissal requires willful government misconduct and prejudice to

defendant); United States v. Lakhani,

(3d Cir. 2007) (dismissal not

appropriate “each time the government acts deceptively,” but “only in the face of the most

intolerable government conduct”).

III.

To conclude, the Government did not violate Giglio because Henry made effective

use of the withheld impeachment material at trial, and thus suffered no prejudice. And the

failure to preserve the contents of Henry’s luggage did not violate the Due Process Clause

because their exculpatory value was not readily apparent, Henry had other avenues to

adduce comparable evidence, and there was no bad faith on the part of law enforcement.

These and other mistakes by the Government did not offend the Constitution, nor do they

resemble the sort of willful misconduct that a dismissal remedy seeks to deter.7 We will

therefore affirm the District Court’s denial of Henry’s motion to dismiss.

7 Our opinion should not be read to excuse the numerous failures that littered Henry’s prosecution. The Government tells us that, in response to these mistakes, it has instituted a training program in the Virgin Islands to educate its AUSAs and local police on their Brady and evidence-preservation obligations. The issues in this appeal suggest that such training is indeed necessary, and we encourage the Government to implement any related programming it deems advisable. 12