* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 28 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BETTY ANNETTE WATKINS, Defendant-Appellant. No. 97-3216 (D.C. No. 96-40061-01-RDR)

(D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , McKAY , and EBEL , Circuit Judges.

In January 1997, following a jury trial, defendant- appellant Betty Annette Watkins (“Watkins”) was convicted of federal drug c onspiracy and possession offenses in the United States District Court for th e District of Kansas, and was sentenced to 270 months’ imprisonment. She now app eals her conviction and sentence. We have reviewed Watkins’ arguments, and for the reasons set forth below, we AFFIRM.- 2 - FACTS Ms. Watkins’ case is part of a trio of related crim inal appeals decided today involving the same cast of characters in a crack co caine drug trafficking operation in eastern Kansas. See companion cases United States v. Quary , No. 97-3213; and United States v. Smith , No. 97-3266. Betty Watkins was the sole defendan t indicted in this case; eight additional defendants were named in a separate, 82- count indictment. The evidence at Watkins’ trial w as as follows: In May 1994, the DEA was asked to assist local law enforcement officers to investigate suspected crack cocaine distribution in Miami, Franklin, and Lyons counties in Kansas. DEA Agent Tom Walsh worked un dercover with local police and confidential informants to make purchases of cr ack cocaine from Lori Smith, Lester Smith, Lexie Lee Smith, Bernard Preston, Eli nor Preston (Bernard Preston’s sister), Eddie Merritt, and Demond Bridge s. Lexie Smith and Bernard Preston were cousins; the entire group allegedly wo rked for another of Bernard Preston’s cousins, James Wardel Quary. All of thes e individuals were ultimately indicted on drug charges, and all but Quary eventua lly pled guilty. Betty Watkins was connected to the group through her daug hter, Renee Watkins, who dated in succession Bernard Preston, Bridges, and Q uary, and who had children by the latter two. Quary and Renee lived with Watk ins for awhile from the end of 1993, when Quary was released from prison on prior drug trafficking charges,1 When Renee later moved out of the apartment, Prest on and Bridges moved

in with Quary. - 3 - until the beginning of 1994, when he and Renee move d to an apartment leased by Watkins. 1 Bernard Preston became the government’s chief witne ss at Watkins’ trial, and testified pursuant to a plea agreement. Accord ing to Preston, Watkins sold crack cocaine out of her house in Ottawa, Kansas, t o a steady stream of customers, and she obtained her drug supply from Qu ary. Preston testified that Watkins, who is white, would drive Quary to Kansas City on buying trips, reasoning that police would be less likely to bothe r a white driver. Preston stated that he went on these trips with Quary and Watkins three or four times, and that he and Quary occasionally went without Watkins. Local law enforcement officers Timothy Woods and Ti m Cronin participated in the investigation. Woods testified at trial that on May 8, 1996, the two officers met with a confidential informant, who told them Watkins was selling crack, and set up a controlled purchase at Watkins’ house. Based on this purchase, the officers obtained a search warrant fo r the house. When the warrant was executed shortly thereafter, officers discovere d Watkins at the kitchen sink with a jar containing small packages of crack. The y found additional packages of crack, a safety razor, and a large chunk of crack i n the sink. Officers seized a- 4 -

total of 16.97 grams of crack cocaine, the confiden tial informant’s buy money, $2,153 in cash, two checkbooks, and an address book . One of the checkbooks was in Watkins’ name but listed the apartment addre ss where Renee and Quary lived. The address book contained phone numbers fo r “Bern” (a nickname for Bernard Preston) and “Demo” (a nickname for Demond Bridges). The only person in the house besides Ms. Watkins atthe time officers executed the search warrant was Watkins’ four-year- old grandson. After being read her Mirandarights, Watkins agreed to talk to Officer Cronin upon his promise not to send the grandchild to a foster agen cy. She then admitted to Cronin that the contents of the sink belonged to he r. Watkins was subsequently taken to the local jail, w here she was read her Mirandarights a second time and was interviewed again, th is time by Cronin and DEA Agent Thomas Walsh. Cronin tape-recorded this interview, which lasted for two hours. During the interview, Watkins appar ently admitted that she had sold crack cocaine since 1994, but she refused to i dentify her supplier. She also apparently admitted that Bernard Preston, Demond Br idges and Demetrius Clay had started her off and taught her how to sell drug s, but she stated that she made her trips to purchase drug supplies by herself, andshe adamantly denied that she was involved with Quary in this enterprise and insi sted that Quary had nothing to do with drugs.- 5 -

After the interview, Cronin gave the tape to Walsh. Cronin never saw the tape again and did not know what Walsh did with it. Three days after the interview, Walsh condensed what he believed was “si gnificant” from the two-hour taped interview into two paragraphs of a written re port. He forwarded a draft to Cronin, who made corrections to it based on his mem ory of what Watkins had said. Walsh then drafted a final report, and destr oyed the tape. Although the written report was disclosed to the defense, it was never introduced into evidence at trial; the only evidence before the jury regardi ng the content of the recorded interview came from the testimony of Agent Walsh an d Officer Cronin. Defense counsel first learned of the existence of t he tape on the second day of trial, during cross-examination of Officer Croni n. Counsel first learned that Agent Walsh had destroyed the tape on the third day of trial, during the government’s direct examination of Walsh. Walsh te stified that he destroyed the tape in accordance with DEA policy, which, accordin g to him, vests individual agents with the discretion to preserve or destroy atape once it is reduced to a report. He stated that he did not consider the tap e to be evidence, but rather, “original notes,” which properly could be destroyed , such as in this case, where he testified that he felt “[t]here was nothing sign ificant on the tape that couldn’t be reduced to a written report.” Although Walsh st ated that it was not unusual for him to destroy tapes of interviews, he also stated that he did not, as a matter of- 6 -

simple routine, always destroy tapes. He conceded, for example, that he would have preserved the tape of Watkins’ interview if Watkins had “confessed,” if she had made “a statement concerning significant events by identifying traffickers or sources of supply,” or if she had incriminated Quary. Although Walsh conceded that Watkins denied during the interview that Quary was involved in drug trafficking, and that Watkins insisted that she travelled solo to Kansas City to buy crack, Walsh testified that he disbelieved her. At the close of evidence, defense counsel moved fordismissal of the case based on Agent Walsh’s intentional destruction of the tape of Watkins’ post-arrest interview. Counsel argued in the alternative that if the court did not dismiss the case, it should either suppress the agent’s testimo ny about Watkins’ statements, or at least instruct the jury that it could draw an ad verse inference from the destruction of the tape. The court denied defense counsel’s motion summarily, and made no findings as to the potential exculpatory value of the tape or as to whether Agent Walsh acted in bad faith. The court later also denied defense counsel’s request for an adverse inference instruct ion. The jury convicted Watkins on both counts charged i n the indictment, namely, conspiring with James Quary and others to p ossess with intent to distribute 50 grams or more of cocaine base, in vio lation of 21 U.S.C. § 846 (Count 1), and possessing with intent to distribute 16.97 grams of cocaine base, in- 7 -

violation of 21 U.S.C. § 841(a)(1) (Count 2). Watk ins was sentenced on each count to 270 months’ imprisonment, with the sentenc es to run concurrently. Her base offense level of 38 for each count was establi shed based on her possession of the 16.97 grams of crack cocaine, as well as an est imated 7.2 kilograms of crack distributed over the duration of the conspiracy. On appeal, Watkins alleges several errors: 1) the government intentionally destroyed the tape of Watkins’ post-arrest intervie w, violating Watkins’ due process rights; 2) the prosecution improperly elici ted testimony about the contents of documents that the court had previously ruled in admissible; 3) the district court admitted hearsay evidence in violation of Wat kins’ right of confrontation; 4) the government improperly induced witness testim ony through promises of leniency; and 5) cumulative error.
DISCUSSION A. Government’s Intentional Destruction of Exculpat ory Evidence Watkins contends that the government’s intentional destruction of the tape recording of her post-arrest exculpatory statements violated her due process rights and warranted sanctions under the principles articu lated in California v.2 The parties agree that if Agent Walsh had not destr oyed the tape, Watkins

would have been entitled to the recording under Fed . R. Crim. P. 16(a), which provides in part: (a) Governmental Disclosure of Evidence. (1) Information Subject to Disclosure. (A) Statement of Defendant. Upon request of a defendant the government must disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government.

- 8 - Trombetta , 467 U.S. 479 (1984), and Arizona v. Youngblood , 488 U.S. 51 (1988). 2 We review a district court’s conclusion that the go vernment did not destroy potentially exculpatory evidence for clear error. S ee United States v. Parker , 72 F.3d 1444, 1451 (10th Cir. 1995); United States v. Bohl , 25 F.3d 904, 909 (10th Cir. 1994). In Trombetta , the Supreme Court held that the government has a duty to preserve “evidence that might be expected to play asignificant role in the suspect’s defense.” Trombetta , 467 U.S. at 488. Thus, the government violates a criminal defendant’s due process rights when it des troys constitutionally material evidence – that is, where (1) the evidence in quest ion possesses an exculpatory- 9 -

significance that was apparent before its destructi on; and where (2) the defendant is unable to obtain comparable evidence by other re asonably available means.
See id. at 489. In Youngblood , the Court elaborated upon Trombetta , holding that where the evidence is only “potentially useful ” to the defendant, the destruction of such evidence does not violate due p rocess absent a showing of bad faith on the part of law enforcement. See Youngblood , 488 U.S. at 58. We find that the government’s destruction of the tape in this case violated neither Trombettanor Youngblood

. 1. No Trombettaviolation We find that although Watkins has met the first pro ng of Trombetta(that the exculpatory nature of the destroyed evidence wa s apparent), she has failed to meet the second prong of that test (that the eviden ce was of such a nature that other comparable evidence was not reasonably availa ble). As such, she has failed to establish a Trombettaviolation. Watkins concedes that her post-arrest statements ad mitted her possession of the 16.79 grams of crack cocaine discovered at her residence when police executed the search warrant; thus, the potentially exculpatory nature of her postarrest statements is limited to the denial of her i nvolvement in a conspiracy with Quary or others.- 10 -

We find that the exculpatory significance of Watkin s’ recorded statements should have been apparent to a reasonable law enfor cement officer. Walsh’s own testimony at trial revealed that Watkins denied Qua ry’s involvement in drug trafficking, and that after having been taught the trade by Bernard Preston, Demond Bridges, and Demetrius Clay, she essentiallyoperated on her own, traveling alone to Kansas City, for example, to pur chase crack cocaine. Taken at face value, these statements were exculpatory as to any charge of conspiracy, regardless of Agent Walsh’s subjective belief as to their veracity. Walsh’s personal belief that the statements were falsely exculpatory is irrelevant under Trombetta . Walsh had a duty to preserve such evidence; it was the province of the jury to weigh the credibility of the exculpatory statements, not the agent’s. Given that Walsh was trying at the time to gather e vidence of a drug conspiracy among Quary and others, we cannot say that the excu lpatory significance of Watkins’ statements – at least with respect to her involvement in such a conspiracy – was not apparent. However, Watkins nonetheless fails to show a Trombe ttaviolation because she has failed to show that the statements were of such a nature that other comparable evidence was not reasonably available. The exculpatory evidence Watkins sought to have int roduced was her denial of any involvement in a drug conspiracy with Quary or others. This evidence was- 11 -

not only otherwise available but in fact came into evidence through the testimony of the law enforcement officers. Agent Walsh testi fied that Watkins denied such involvement. Certainly the tape would have been a more accurate reconstruction of the conversation, but Trombettarequires only that “comparable” evidence -- not exact evidence -- have been reasonably availabl e. If there was other exculpatory material on the tape (besides Watkins’ denial of her involvement in the conspiracy), it is her bu rden to establish what that was, or least to make a detailed offer of proof as to wh at it was. She was present at the tape recording of her conversation, and it is not u nreasonable to place that burden on her as the movant for sanctions. She has not sh own that additional exculpatory material existed on the tape, and her mere speculat ion is no proof that such exculpatory material existed, let alone “obviously exculpatory” material. In any event, even if there was a Trombettaviolation, it was harmless. First, the value of the exculpatory evidence on the tape was slight at best. A defendant’s denial of criminal culpability is inher ently suspect; Watkins’ recorded statements could be expected to have carried little weight with the jury. Second, the tape recording would have been largely redundan t. The jury heard from the officers who interviewed her what her exculpatory s tatements were. The only thing the tape might have added was her tone of voi ce in her responses to their questions. However, she presents no offer of proof that her tone was particularly- 12 -

compelling or uniquely exculpatory. Third, even i f the taped statements were strongly exculpatory, Watkins had the ability to ta ke the stand and repeat the testimony. She was present at the taping, and so s he could, if she thought this evidence was critical, have taken the stand to repe at what she had told the officers. Presumably the officers would have corro borated what she said, or at least, nothing in the record shows that they would have refuted her statements. Fourth, it is doubtful that this evidence was admis sible in any event because it would have been hearsay. Watkins submits that the exculpatory portions of the tape would have been admissible under the rule of c ompleteness if the government had introduced the inculpatory portions of the tape. See Fed. R. Evid. 106. However, she has not made any showing t hat the government would have introduced the inculpatory portion of the tape even if it could. Finally, upon review of the record, we are convinced that the evi dence at trial of Watkins’ guilt was so strong that any exculpatory value of the tap e would be insignificant and would not have affected the result.
2. No Youngblood

violation Watkins cannot show that the government’s destructi on of the tape violated Youngbloodbecause she cannot show, on this record, that the tape was destroyed in bad faith. Agent Walsh testified that he destro yed the tape in good faith under3 We note that defense counsel has moved this court to take judicial notice

of the DEA’s Policy Manual, of which counsel obtain ed a copy for the first time after oral argument before this court. According t o the excerpts of the manual that defense counsel attached to the motion, it app ears that DEA policy in fact does notgrant agents such discretion. Section 6211.6 prov ides in part: A. Rough notes taken by an Agent while interviewing a potential Government witness, an informant, a suspect, or a s ubject of an investigation are subject to discovery. Failure to produce these notes, even due to good faith loss or destruction, could result in dismissal of the case. Agents will therefore prese rve any such notes, even though their contents have been subsequently r eported on DEA Form 6. B. The term “notes” includes handwritten notes, ori ginal tapes , or other work papers made during the interview of a po tential Government witness, or any such documents made outs ide the interview from which the witness was directly quest ioned. Original tapes will be handled as nondrug evidence. (Emphasis added.) Thus, although the manual casts doubt on Agent Wals h’s testimony, it was not part of the record before the district court, a nd therefore we may not consider it on appeal. See Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d 1545, 1549 n.1 (10th Cir. 1992); see also United States v. Judge , 846 F.2d 274, 276 (5th Cir. 1988) (declining to take judicial notice of DEA reg ulations where they were not part of the lower court record). We therefore deny what is essentially a motion to expand the record. However, we assume that DEA aut horities will review Agent Walsh’s testimony and take any appropriate steps if they determine that Agent Walsh was not following DEA policy. - 13 - discretion he believed he had under DEA policy, 3 given that he disbelieved Watkins’ statements regarding Quary’s involvement i n drug trafficking. On the record before us, then, Watkins has not offered any evidence that the tape was destroyed in bad faith.- 14 -

B. Other Alleged Errors Watkins also argues that the admission of several h earsay statements violated her Sixth Amendment right of confrontation . In addition, Watkins contends that the prosecution acted improperly in e liciting testimony from Agent Walsh regarding phone records retrieved from Watkin s’ trash, after the court had ruled more than once that the records themselves we re inadmissible due to the government’s untimely production of this evidence. As counsel did not object to this testimony at trial, our review is for plain er ror only. See Fed. R. Crim. P. 52(b). We have reviewed the record cites for each of the alleged hearsay violations and are convinced that in each instance the statements were offered not for their truth, but to show res gestae. Because t here were no objections from counsel, and because the statements were offered fo r a legitimate, nonhearsay purpose, we find that the district court did not pl ainly err in admitting these statements. As for Agent Walsh’s testimony regard ing the telephone records, we find that any error in the admission of these state ments was harmless. We have reviewed Watkins’ other allegations of erro r and find them to be without merit. Accordingly, we AFFIRM Watkins’ conviction and sent ence. ENTERED FOR THE COURT David M. Ebel Circuit Judge