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]
Lynch and Selya, Circuit Judges, and Levy, District Judge.
B. Mann, with whom Robert B. Mann Law Office was on brief,
C. Lockhart, Assistant United States Attorney, with whom
Stephen G. Dambruch, Acting United States Attorney, was on
brief, for appellee.
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.
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 cocaine, he insisted that he could not
make a large purchase without first testing the product.
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.
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).
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 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.
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.
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 ...