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

### OCT 28 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD C. SCARBOROUGH, Defendant - Appellant. No. 96-1400

Appeal from the United States District Court

for the District of Colorado (D.C. No. 96-CR-31-M)
Richard Kent Kornfeld (Gary Lozow with him on the b riefs), Isaacson, Rosenbaum, Woods & Levy, P.C., Denver, Colorado, fo r the Defendant - Appellant. James C. Murphy, Assistant U.S. Attorney (Henry L. Solano, United States Attorney, with him on the brief), Denver, Colorado, for the Plaintiff - Appellee.

Before EBEL , KELLY and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

Appellant Donald Scarborough (“Scarborough”) was co nvicted of knowingly possessing with the intent to distribute 500 grams or more of cocaine.- 2 -

He appeals the jury decision on the following groun ds of alleged error by the trial court: (1) the denial of his motion to dismiss on t he basis of the government’s untimely disclosure of exculpatory information; (2) the refusal to give a proposed jury instruction; (3) the denial of his motion to s uppress based on the asserted lack of reliability of the narcotics canine; (4) th e admission of allegedly prejudicial evidence; and (5) the preclusion of certain testimony. We find no reversible error.
I The government maintained at trial that on June 16, 1994, the defendant mailed or caused to be mailed from Denver, Colorado , an Express Mail package containing approximately half a kilogram of cocaine to his brother Michael Scarborough in Omaha, Nebraska. The label on the p ackage stated that it was from “Tony Patterson” at “1768 Billing.” In the ci ty section of the return address, “Aur” was crossed out and replaced by “Den, CO.” T he package was addressed to “Micheal [sic] Patterson,” “3020 Newport St.,” “ Omaha, Nebr. 68112.” Omaha postal inspectors detained the package and su bmitted it to a certified narcotics-trained canine because it fit asuspicious package profile. Pogo, the dog, alerted to the package, motivating t he inspectors to obtain a federal search warrant and open it. The package co ntained two items: a sealed- 3 -

telephone box, which contained cocaine, and a toy T onka truck still in its cardboard frame. The postal service then conducted a controlled deli very of the package to the delivery address, where it was accepted and sig ned for by Michael Scarborough, using the name “Michael Smith.” The p ostal inspectors and Omaha police obtained a no-knock search warrant for the d elivery locale and, about 15 minutes after delivering the package, entered the h ouse, found the unopened package behind a couch and arrested Michael Scarbor ough. Denver Postal Inspector Earl Winsor testified at tr ial that in April 1995, prior to Donald Scarborough’s arrest, he obtained h andwriting samples from the defendant, pursuant to a federal grand jury subpoen a, and fingerprinted him. The original mailing label for the Express Mail package in which the cocaine was found, along with defendant’s handwriting sample an d fingerprint chart, were sent to the Postal Inspection Service crime laboratory i n Chicago, Illinois for analysis. The lab found four latent prints on the label, one of which was identified as the defendant’s left thumbprint. Defendant was arreste d in January of 1996.
II A. The Delayed Disclosure of Exculpatory Material The government’s final witness was Roger Ball, the forensic scientist from the Chicago lab. At the close of the government’s direct examination of Ball, the- 4 -

prosecutor inquired whether Ball had been asked “in connection with this case to conduct any other kind of analysis.” Appellant’s Supp. App. at 226. The following exchange ensued:

A. Yes, sir, I was. Q. What was that? A. I was requested by Inspector Winsor, I believe itwas, to compare the fingerprints of an additional case from Omaha to see if I could identify any latent prints in that speci fic case with the submitted prints of Donald C. Scarborough. Q. And were you able to do that? A. No, sir, they were not identified with that parti cular case. Id . At this point the government ended its direct ex amination of the witness, and the defense requested a bench conference. Apparent ly this was the first time either defense or prosecution had been informed of another analysis conducted by Ball in connection with this case. The trial judge granted a 15-minute recess so both sides could question the witness to clarify th is testimony. The recess interview of Ball revealed that, in late 1994, Doug las Czepa of the U.S. Postal Inspection Office in Omaha had sent the various ite ms taken from the package containing the cocaine, including the Tonka truck a nd the telephone box, to the Chicago crime lab for a fingerprint analysis which revealed latent prints. In March 1996, about 60 days prior to the trial of Don ald Scarborough, Inspector Winsor asked the lab to compare the latent prints f ound on the package’s contents- 5 -

to those of defendant. This test, conducted by a l ab employee who was not a witness at the trial, revealed that defendant’s pr ints did not match the latent prints developed from the Tonka truck. The defense had not been informed of the 1994 test for prints on the items in the package co ntaining the cocaine, the 1996 analysis showing that the latent prints developed f rom the Tonka truck did not match defendant’s, or the written report regarding this negative comparison. As a result of this revelation of exculpatory mater ial just prior to the end of trial, the defense moved to dismiss the case and fo r sanctions against the government for violating Brady v. Maryland , 373 U.S. 83 (1963). The defense asserted prejudice from this alleged violation base d on the fact that its trial strategy, in particular its opening statement to th e jury and cross-examination of witnesses, as well as any decision to put defendanton the stand, might have been substantially different if this information had bee n disclosed earlier. The judge denied the motion and sanctions on the grounds thatany harm to the defense from the late disclosure of the exculpatory material cou ld be cured by crossexamination of the witness. In Brady , the Supreme Court stated, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishme nt, irrespective of the good faith or bad faith of the prosecution.” Brady , 373 U.S. at 87. We review de novo a- 6 -

claim of failure to disclose evidence in violation of Brady . United States v. Rogers , 960 F.2d 1501, 1509 (10th Cir. 1992). Brady mandates reversal when a failure to disclose is coupled with a finding that the evidence is “material,” meaning that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceed ing would have been different.” United States v. Bagley , 473 U.S. 667, 682 (1985); see United States v. Young , 45 F.3d 1405, 1408 (10th Cir. 1995). In this case, the evidence was eventually disclosed to the defense, albeit towards the end of the trial. “This court has previously held that Bradyis not violated when the Bradymaterial is made available to defendants during trial.” United Stat es v. George , 778 F.2d 556, 561 (10th Cir. 1985) (citing United States v. Behrens , 689 F.2d 154, 158 (10th Cir. 1982) and United States v. Alberico , 604 F.2d 1315, 1319 (10th Cir. 1979)). As this court has observed, “[w]hile we strongly disap prove of delayed disclosure of Bradymaterials, that alone is not always grounds for re versal. As long as ultimate disclosure is made before it is too late f or the defendant[] to make use of any benefits of the evidence, Due Process is satisf ied.” United States v. Warhop , 732 F.2d 775, 777 (10th Cir. 1984) (citation omitte d) (finding disclosure of ostensibly exculpatory report to defense during cro ss-examination of government witness not Bradyviolation because defendant was able to use eviden ce).- 7 -

Following the recess, defense counsel extensively c ross-examined Ball regarding the tardily-disclosed evidence. Defense counsel also used the exculpatory material to strong effect in his closin g argument. Under these circumstances, the fact that the material, if discl osed earlier, may have affected the defense strategy does not mandate reversal. “W e have held that, ‘the relevant standard of materiality does not focus on the trial preparation, but instead on whether earlier disclosure would have created a rea sonable doubt of guilt that did not otherwise exist.’” Rogers , 960 F.2d at 1511 (quoting George , 778 F.2d at 562). The late disclosure of this exculpatory info rmation is troubling, and it highlights the need for vigilance by prosecutors in ensuring that government agents are informed of and respect Brady requirements. Ultimately, however, appellant has not shown that earlier disclosure of this material would have created any greater doubt about defendant’s guilt or affect ed the result of the trial. Thus, the trial court did not err in denying the motion t o dismiss. B. Jury Instructions Appellant claims that the trial court’s refusal to allow defendant’s proposed jury instruction number four denied him his right t o a fair trial. “Jury instructions must be examined as a whole and a de novo standard of review is applied to determine the propriety of an individual jury instr uction to which objection was made at the time of trial.” United States v. Mulli ns , 4 F.3d 898, 900 (10th Cir.- 8 -

1993) (citations omitted). A reviewing court must have “substantial doubt that the jury was fairly guided” in order to reverse a j udgment below. Id. (citation omitted); see also United States v. Barrera-Gonzales , 952 F.2d 1269, 1271 (10th Cir. 1992) (“[A]ppellate court must review the reco rd as a whole to determine whether the instruction stated the governing law an d provided the jury with ample understanding of the issues and standards applicabl e.”). Proposed instruction four, as modified by the courtprior to ultimately deciding to reject it, states that “[m]omentary pos session of a package containing contraband does not in itself prove that the defend ant had knowledge of the contents of the package.” Defendant claims that in declining to give this instruction the court failed to instruct the jury o n one of his theories of defense, and that such an omission is reversible error becau se the evidence supports the theory presented in the instruction. See United States v. Felsen , 648 F.2d 681, 685-86 (10th Cir. 1981). The defendant does not di spute that the charge given to the jury included an instruction proffered by defen dant on his theory of defense. That other instruction states:

The defendant, Donald C. Scarborough, has pleaded n ot guilty to the charge contained in the indictment, and this pl ea of not guilty puts in issue each of these essential elements of the offe nse described in the instructions, and imposes on the government the bur den of establishing each of these elements by proof beyond a reasonable doubt. The defendant, Donald C. Scarborough, contends that he d id not at any time knowingly possess the cocaine at issue in this case. The1 This paragraph was adapted by the trial court from defendant’s proposed instruction

number nine. - 9 - defendant further contends that he never intended t o distribute the cocaine at issue in this case, and the defendant de nies that he had knowledge of the contents of the package. 1

* * * As used in these instructions, possession is the ex ercise of dominion, control or authority over the controlled substance in question. Appellant’s Supp. App. at 313-14. Defendant’s reje cted instruction sets forth an argument in support of an inference the jury could draw from the evidence. Cf. United States v. Chadwick , 532 F.2d 773, 784 (1st Cir. 1976) (relationship between extent of possessory interest and knowledge of contents is question of inference), aff’d , 433 U.S. 1 (1977). We conclude the district court did not err in excluding such an instruction from its charge to th e jury. The charge given, considered as a whole, correctly states the law, fa irly and adequately covers the issues presented, and defines both “possession” and “knowingly” in such a manner as to allow the jury to draw the inference s ought by the rejected instruction; as the instructions adequately state S carborough’s defense of possession in factual terms and correctly instruct the jury on the law applicable to that defense, error did not occur.- 10 - C. Denial of Motion to Suppress2 The government argues that appellant lacks standing to contest the seizure of this

evidence because he has no recognizable privacy interest in the contents of a package on whi ch his name does not appear. We need not address this issue because we find that, even assuming that defendant does have standing, it is clear that there was no constitutional violation in either the initial detention or subsequent search of the package. - 11 - Appellant challenges the district court’s denial of his motion to suppress the cocaine on the ground that it was illegally sei zed. 2 In reviewing the denial of a motion to suppress, we must accept the trial court’s findings of fact unless they are clearly erroneous, and all the evidence is view ed in the light most favorable to the government. United States v. Knapp , 1 F.3d 1026, 1027 (10th Cir. 1993)

. According to appellant, the initial detention of th e package by postal authorities, pending Pogo’s sniff, was an illegal s earch and seizure under the Fourth Amendment. The temporary detention of mail for investigative purposes is not an unreasonable seizure when authorities hav e a reasonable suspicion of criminal activity. See United States v. Van Leeuwen , 397 U.S. 249, 250 (1970). In the present case, the package shared some of the characteristics of a profile developed to identify narcotics packages in that itcontained a handwritten label; was going from an individual to an individual; was coming from a narcotics source state; bore no return zip code; had a misspe lled return address street; contained a correction in the city portion of the r eturn address; and was found to contain a nonexistent return address street number. Scarborough argues that each of these factors taken alone may be innocent, and t hey cannot be combined to- 12 -

create reasonable suspicion. We do not agree. A c ombination of seemingly independent innocent factors may create a reasonabl e suspicion justifying detention for a dog sniff if the factors substantia lly reflect elements of a suspicious profile. See United States v. Lux , 905 F.2d 1379, 1382 (10th Cir. 1990) (package meeting three factors from postal se rvice’s “drug package profile” gives authorities sufficient reasonable suspicion t o subject package to drug detection dog); cf. United States v. Williams , 726 F.2d 661, 663 (10th Cir. 1984) (police recognition that individual’s behavior matc hes certain elements of drug courier profile provides reasonable suspicion to ju stify stop and dog sniff of luggage). Appellant also challenges the government’s reliance on Pogo to obtain the search warrant and open the package. It is undispu ted that a drug sniffing dog’s detection of contraband in itself establishes proba ble cause for a search warrant.
See Williams , 726 F.2d at 663 (drug sniffing dog’s alert on lug gage provides probable cause for arrest). Appellant argues, howe ver, that Pogo’s 79% reliability rate when working with postal inspectors, as reflec ted in the affidavit submitted in support of the search warrant, as well as the ab sence of any details on his training and his apparent lack of continued trainin g, raise questions about whether Pogo’s abilities are sufficient to create probable cause. The analysis of a properly drafted search warrant affidavit requires only thatthere be a “substantial basis”3 While on specific assignment for the Omaha postal service, Pogo’s skills were uti lized

approximately 24 times, resulting in 19 alerts, four of which resulted in no drugs, about a 79 percent success rate. Defendant’s argument that we should discard Pogo’s overall history of reliability and look solely to his lower success rate in the subset related to postal investigations is rejected because no reasons are provided as to why Pogo’s abilities might be materially affected by working for the postal service. - 13 - for finding probable cause. United States v. Cusum ano , 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc). The affidavit states that Po go is certified, was trained to alert to drug odors at the Rudy Drexler School for Canines in Omaha, and had alerted approximately 65 times to controlled substa nces and contraband in fourand-one-half years on the job. Drugs were not foun d five of those times -- for an overall reliability rate of 92 percent. 3 The accuracy of the affidavit is not challenged and, with such a success rate, we do notagree it was clear error for the trial court to find that Pogo is a credible narcoti cs dog and that his alert adequately supports the finding of probable cause.
D. Admission of Evidence Appellant challenges the admission into evidence of nine earlier Express Mail labels and his two driver’s licenses, claiming that any probative value of that evidence is substantially outweighed by prejudice t o the defendant. A district court has broad discretion in balancing the probati ve value of evidence against its potential prejudicial effect, and will be reversed only on a showing of abuse of that discretion. United States v. Martinez , 938 F.2d 1078, 1082 (10th Cir. 1991). We find no abuse of discretion in the admission of any of these items.- 14 -

1. Admission of the Labels Postal Inspector Czepa testified that after Michael Scarborough’s arrest he had ordered a search for any other labels (previous ly pulled and filed separately by the Omaha postal inspection office) that contain ed either the same address, same street name or same names as the label of the package in which the cocaine was found. Over defense objections, the court allo wed into evidence nine Express Mail labels dated between May 23, 1991 and November 23, 1993 retrieved from this search. The court instructed t he jury that though Czepa testified that these labels had been pulled because they were identified as part of “something called a profile and, therefore, in some way suspicious to [the witness],” the jury was not to consider them “as any evidence that [they] were in fact used for packages in which cocaine or somethin g else, a drug, was contained. They are simply labels that were collected through this process and put in the file. So they’re received simply for what they are, as la bels out of the files.” Appellant’s Supp. App. at 42. Appellant tells us the admission of these nine labe ls was reversible error because the labels lack any probative weight due to prosecutorial failure to link the nine earlier labels to the label at issue, to o ther drug transactions or to defendant. Appellant contends the admission is sub stantially prejudicial, in that it may have led the jury to infer that Scarborough mai led drugs from Denver to- 15 -

Omaha on nine prior occasions, or that he must have mailed the Express Mail package found to contain cocaine because he mailed the earlier packages. Appellant’s argument is patently wrong. Beverly Ma zur, a handwriting analyst employed by the Nebraska Police Crime Lab i n Omaha, testified at trial that the “to and from sections” of the Express Mail label on the package containing the cocaine were written by the same per son who wrote the nine other Express Mail labels. When he was arrested, defenda nt had in his possession two driver’s licenses, each with his picture. One show ed the name “Donald Scarborough, Jr.” with an address at “4604 Sable St .,” “Denver CO 80239,” and the other showed the name “Carvin Teon Scarborough” with an address at “1300 Adam St. 205,” “Denver CO 80206.” Three of the nin e contested labels list Donald Scarborough as the sender, and one lists Carvin Scarborough as the recipient. Six of the labels, one of which was fro m a “Tony Patterson” (listed as the sender on the package in question), contain the Adam Street address listed on one of the defendant’s driver’s licenses, and anoth er contains that same Adam Street address with a different apartment number. Still another label contains the Sable Street address listed on the other driver’s l icense. The judge’s limiting instruction to the jury upon a dmitting these nine labels into evidence mitigated any prejudice that may have arisen from improper consideration of the labels as evidence of prior cr imes, bad acts or of a modus- 16 -

operandi of engaging in suspicious mail transaction s. The district judge did not abuse his discretion in concluding that these nine labels, linked to the defendant through his two driver’s licenses and linked to the label on the package containing the cocaine through handwriting analysis, were cruc ial to establishing the identity of the sender of the package containing the cocaine , and this circumstantial value outweighs any potential prejudice. 2. Admission of the Driver’s Licenses Appellant also challenges the admission into eviden ce of one of the two Colorado driver’s licenses found on his person whenhe was arrested in January 1996. At trial, defense counsel objected to the ad mission of the license containing the name “Carvin Teon Scarborough” along with defendant’s picture on the ground that it was irrelevant because it was issued on October 10, 1992, nineteen months prior to the date of the crime. De fense counsel stressed admission would be inordinately prejudicial because the jury might infer from the presence of an alias on the license that defendant had been involved in illegal activities long before the crime in question. The court denied the objection and also denied defendant’s request to redact the alias from the license. Both driver’s licenses were probative of a key issu e at trial, linking defendant to the nine earlier labels and, through h andwriting analysis, to the label on the package containing the cocaine. The fact th at the license with the alias- 17 -

was issued in October 1992, nineteen months before the crime in question, does not lessen its relevance. The nine labels were mai led between May 1991 and November 1993. Therefore, the issuance of the lice nse with the alias was contemporaneous with at least some of the nine labe ls. The district court properly concluded that redaction of the alias name would have detracted from the probative link between the earlier labels and the l abel on the package with the cocaine, because at least one of the earlier labels contained the name “Carvin Teon Scarborough” and another contained the address appearing on that license. As both licenses were relevant to linking defendantto the crime, the district court did not abuse its discretion in admitting them with out redaction. E. Preclusion of Testimony During cross-examination of Inspector Czepa and Oma ha police officer John Neaman, the defense sought to elicit testimony that the federal charges against Michael Scarborough had been dismissed for speedy trial violations. The government objected on the grounds of hearsay and r elevance, and the court sustained the objections. Appellant now argues that in preventing him from eliciting such testimony, “the district court precl uded [defendant] from presenting key evidence supporting his theory of defense, i.e. that federal agents unfairly targeted him only after failing to successfully pro secute Michael.” Appellant’s Br. at 35. According to appellant, the testimony i s probative because it bears on- 18 -

the credibility of the government’s witnesses, and, moreover, the government opened the door to such information by describing M ichael Scarborough’s arrest in its opening statement and alluding to it through out the trial. A trial court’s decision to exclude evidence is rev iewed for abuse of discretion and will be reversed only if it is manif estly erroneous. See United States v. Simpson , 7 F.3d 186, 188 (10th Cir. 1993). Appellant has not shown how the testimony it sought to elicit bears on defe ndant’s guilt or innocence and did not establish at trial that either witness had personal knowledge of the status of Michael Scarborough’s case. The district court acted squarely within its discretion. We will not disturb its determination that such testimony lacked foundation or could confuse the jury about issues t hat were not probative of defendant’s guilt or innocence. Moreover, the dist rict court was appropriately concerned that such testimony could lead to imprope r argument -- i.e., that Donald Scarborough’s innocence was linked to Michae l Scarborough’s innocence, which, in turn, was conclusively demonstrated by th e dismissal of the charges against him.
AFFIRMED.