United States v. Robert Fitzgerald Hill, Robert F. Hill, 976 F.2d 132, 3rd Cir. (1992)
United States v. Robert Fitzgerald Hill, Robert F. Hill, 976 F.2d 132, 3rd Cir. (1992)
United States v. Robert Fitzgerald Hill, Robert F. Hill, 976 F.2d 132, 3rd Cir. (1992)
2d 132
36 Fed. R. Evid. Serv. 732
At the close of the evidence in this case, the government disclosed for the first
time that Agent Malloy of the Drug Enforcement Agency and Agent Monaghan
of the Internal Revenue Service, both of whom testified in the trial, had also
testified before the grand jury that indicted defendant. In addition, it was
disclosed at the same time that Agent Craven of the United States Customs
Service had also testified before the grand jury, although he had not been a
witness at the trial. Before the grand jury, Agents Malloy and Craven recounted
their conversations with Castagnola, an alleged co-conspirator. Castagnola
described to them in detail his activities as part of a conspiracy with two other
coconspirators, Santana and defendant, to import heroin and cocaine. The
agents memorialized many of Castagnola's statements in written reports.
3
Castagnola, who did not testify before the grand jury, was the key prosecution
witness at the trial. When the government disclosure took place, the defendant
sought to have the testimony of the agent-witnesses stricken and the indictment
dismissed or a new trial granted on the ground that he was entitled to have all
such grand jury testimony for use at trial, particularly to cross-examine
Castagnola. The district court denied the motion for a mistrial at that time
apparently because such testimony had not been transcribed.2 At the
government's suggestion, the court permitted the case to go to the jury subject
to certain later procedures.3
Sometime after the guilty verdict and the production by the government of the
grand jury testimony, the district court entertained briefs on what it described as
an outstanding motion for a mistrial. It apparently assumed that its denial of the
motion at the close of the evidence was tentative. Thereafter, it filed an opinion
denying that motion.
Defendant seeks reversal of the judgment of conviction and a direction that the
indictment be dismissed or a new trial granted.
I. DISCUSSION
A. DISCOVERY OBLIGATIONS
7
Defendant renews in this court his assertion that the non-production by the
government of certain grand jury testimony during the trial violated, inter alia,
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and
entitled him to a new trial.4
Defendant contends that the government violated the rule announced in Brady
in failing to supply defendant with the grand jury testimony of Agents Malloy
and Craven before trial. The Brady doctrine requires the government to
volunteer "evidence favorable to an accused on request ... where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. See also
Agurs, 427 U.S. at 110, 96 S.Ct. at 2400; Smith v. Phillips, 455 U.S. 209, 21920, 102 S.Ct. 940, 947-48, 71 L.Ed.2d 78 (1982). Materials that must be
disclosed are those that go the heart of the defendant's guilt or innocence and
materials that might affect the jury's judgment of the credibility of a crucial
prosecution witness. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763,
766, 31 L.Ed.2d 104 (1972); United States v. Higgs, 713 F.2d 39 (3d Cir.1983),
cert. denied, 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984).
11
Defendant argues that the grand jury testimony of Agents Malloy and Craven
was Brady material because it contained exculpatory information, such as
statements allegedly made to them by Castagnola that could have been used to
further impeach Castagnola at trial. See generally, United States v. Starusko,
729 F.2d 256 (3d Cir.1984). He maintains, inter alia, that the two agents' grand
jury testimony as to what they were told by Castagnola differed significantly
from Castagnola's testimony at trial. His counsel conceded at oral argument,
however, that these inconsistencies relate only to three incidents involving the
delivery of narcotics, namely, the telephone incident, the garage incident and
the hotel incident.5 Those incidents will be addressed subsequently.
12
Although the government did not turn over the grand jury testimony during the
trial, it did give defendant hundreds of pages of reports by Agents Malloy,
Craven and Monaghan shortly before the commencement of the trial. For
convenience they will be referred to as the DEA reports or the reports. Those
reports summarized Castagnola's statements to them about the garage and hotel
incidents, but not the telephone incident, all later addressed. Defendant
concedes that the testimony of the agents before the grand jury tracked these
reports nearly verbatim. Thus, such testimony did not contradict their reports.
Nevertheless, defendant maintains that without access to the grand jury
testimony of the agents he was seriously handicapped in his ability to destroy
Castagnola's credibility at trial.
13
We commence our analysis by assuming the dubious proposition that the grand
jury testimony of the agents was " 'evidence favorable to [the defendant].' "
Agurs, 427 U.S. at 110 n. 17, 96 S.Ct. at 2400 n. 17 (1975) (quoting Brady, 373
U.S. at 87, 83 S.Ct. at 1196). only requires that material evidence be disclosed
by the prosecution." Higgs, 713 F.2d at 42.
14
15
The district court found that the non-disclosure of the grand jury testimony of
Agents Malloy and Craven did not constitute Brady violations. It determined
that their testimony would not have made defendant's cross-examination of
Castagnola more effective or more damaging to the government's case. The
court reasoned that the grand jury testimony of Malloy and Craven essentially
tracked the events as recorded in their reports, and thus "the [undisclosed] grand
jury material was repetitious and cumulative of what was contained in the
hundreds of pages of DEA reports." App. 1195.
16
As the district court said in its opinion:Nothing in those grand jury minutes
would have reflected on the reliability of the agents to the extent that it would
have dictated a different outcome on the defendant's guilt or innocence....
Indeed, the cross-examination of Castagnola, with the benefit of the DEA
reports, could not have been more effective and damaging to the government if
the defense counsel had rehearsed the opportunity.
17
Based on its finding as to the very limited value of the undisclosed grand jury
testimony for additional cross-examination purposes, the court held in effect
that the grand jury testimony was not "material" to the outcome under that
Brady requirement.
18
We have reviewed the DEA reports and grand jury testimony of the agents in
light of the record submitted to us by defendant. This record demonstrates that,
by having the agents' reports, defendant's counsel had access to the equivalent
Giles v. Maryland, 386 U.S. 66, 98, 87 S.Ct. 793, 809, 17 L.Ed.2d 737 (Fortas,
J., concurring); quoted in Agurs, 427 U.S. at 109 n. 16, 96 S.Ct. at 2400 n. 16;
see also United States v. Presser, 844 F.2d 1275 (6th Cir.1988).
21
The defendant, nevertheless, insists that the agents' grand jury testimony would
have added to the weight of the material impeaching Castagnola that was
available to him from the reports of the agents. We turn, therefore, to an
examination of the alleged inconsistencies between Castagnola's trial testimony
and the testimony given by the two agents to the grand jury in which they
recounted what Castagnola told them. This we must do to decide whether it
could have been used by defendant at trial to create a reasonable doubt as to
Castagnola's credibility that did not otherwise exist.
24
25
28 were waiting for a taxicab to come, and up the Hill [sic] comes Mr. Hill. And
[W]e
this is the first time I'm seeing Mr. Hill. Mr. Santiago [sic] nudges me and he says,
see the tall nigger across the street? That's my man, Bob Hill, and he's going to take
the car and take care of it, take care of everything in there.
29 Hill got in the car and backed the car across the intersection, drove down the
Mr.
hill. That's the last time I saw the car and Mr. Hill for that period of time.
30
Agent Malloy gave the grand jury a more abbreviated version of Castagnola's
pretrial statements about the garage incident. He said:
31
While
they were standing across the street [from the garage] a tall black male, later
identified as Robert Hill, came out of the garage, got into the car and drove it down
the street and into the garage. This was observed by Mr. Castagnola.
32
(emphasis added). Similarly, Agent Craven gave a brief summary to the grand
jury of Castagnola's version of the incident involving the delivery of narcotics
in New York City:
33Also, one time in, I believe it was the fall of 1988 when Castagnola was driving
...
the Grand Marquis over to New York with heroin and cocaine in the trunk, he was
told to park it one day in New York City. He and Santana got out and got in a
taxicab.
34 they got in the taxicab, Castagnola looked over to the car and saw Robert Hill
As
getting into the car.
35
36
Defense counsel questioned Agent Malloy about these first two discrepancies at
trial. Malloy admitted that Castagnola had told him about Santana's comment
describing defendant but that he failed to include it in his report or to mention it
before the grand jury. Defense counsel also cross-examined Castagnola as to
whether he told the agents that Santana said to him: "Do you see that tall nigger
across the street." Castagnola confirmed that in his debriefing, he told Agent
Craven "something like that." We cannot say these limited inconsistencies in
any material way impeded defense counsel's ability to maximize for the jury
the impact of the inconsistencies on Castagnola's credibility.
37
Third, defendant argues that Agent Craven's grand jury testimony contradicted
Castagnola's trial testimony on the issue of the time and location of the garage
incident. Agent Craven told the grand jury that Castagnola said the garage
incident happened in the fall of 1988 in Queens, New York. By contrast,
Castagnola testified at trial that the garage incident occurred in Harlem in the
spring of 1988. Agent Malloy was cross-examined about this discrepancy. He
confirmed that Castagnola originally said to him that the garage incident
occurred in the fall of 1988. Further, Malloy stated that Castagnola originally
said the garage was in Queens rather than Harlem. On cross-examination,
Castagnola also admitted that he may have given Agents Malloy and Craven an
account of the garage incident without describing its location. Further, he
acknowledged that Agent Craven's reports were inaccurate as to many details.
38
The record shows that defendant was not denied a full opportunity to impeach
We believe that defense counsel's possession of the grand jury testimony could
not have enhanced his ability to cross-examine Castagnola in this area because
the DEA reports in defendant's possession contained essentially the same
material as is found in the two agents' grand jury testimony about Castagnola's
account of the garage incident. The cross-examination that was conducted
permitted the jury to decide whether the agents recorded all of the details that
Castagnola testified he told them about the incident. Thus, we conclude that
possession of the agents' grand jury testimony would not have permitted
defendant to engage in any meaningful additional impeachment of Castagnola's
credibility.
Castagnola testified that after defendant drove away from the garage in the
rental car, he and Santana went to dinner. Specifically, he stated as follows:
42 caught a taxicab, we went into the city, back to the Sheraton Center. We went to
We
this Hill Italian restaurant that Mr. Santana likes to eat at. We had our dinner, we
went back to the hotel, our car was back there ... the rental car that Mr. Hill took. It
was parked ... Mr. Santana got the keys. He said, open the trunk up. I opened the
trunk up, and the trunk was now empty. There was nothing left in the car.
43
The agents gave the grand jury somewhat differing accounts of the versions
Castagnola gave to them of the hotel incident. Agent Malloy omitted many of
the quoted details in describing Castagnola's pretrial statements to him
regarding the hotel incident. He summarized the incident for the grand jury
based on Castagnola's statements to him as follows:
44Later that evening, I believe they got the car back at the Sheraton Hotel in New
...
York, I think, and ...
... They met at the Sheraton Hotel and got the car back.
45
46
50
Defendant argues that had he timely been given Agent Craven's grand jury
testimony, he would have used it in addition to the DEA reports to impeach
Castagnola's statement that he checked the trunk of the rental car in New York
City and found the drugs missing, rather than upon returning to Pennsylvania.
Defense counsel confronted Castagnola directly with the fact that Agent
Craven's report said he checked the trunk of the rental car after driving from the
hotel back to Pennsylvania. Castagnola responded that he had read the report
and that "Mr. Craven got it wrong."
51
Finally, defendant argues that the non-disclosure of Agent Malloy's grand jury
testimony substantially prejudiced him by altering his trial strategy.
Specifically, he argues that had he possessed the grand jury testimony of the
two agents in preparation for trial, he would not have impeached Castagnola
directly with the inconsistent statements from the agents' DEA-6 reports.
Instead, he would have waited until Agent Malloy testified about what
Castagnola told him. At that point, says defendant, Castagnola would have been
"boxed in" by his differing trial testimony. This strategy, he says, would have
been more successful in casting additional doubt on Castagnola's credibility.
52
The defendant had in his possession the DEA reports that contained or omitted
the same information he says on appeal he would have used from the agents'
grand jury testimony to impeach Castagnola's version of the hotel incident. On
cross-examination, Castagnola admitted that he gave Agent Craven an
incomplete and inconsistent version of the New York narcotics incident. Thus,
we conclude that the agents' grand jury testimony about Castagnola's portrayal
of the hotel incident would not have provided defense counsel with any
evidence, either affirmative or negative, that could have further impeached
Castagnola in any meaningful way.
53
54
The unavailability of the material, therefore, did not raise a reasonable doubt
that might otherwise have existed had it been disclosed. Agurs, 427 U.S. at 104,
96 S.Ct. at 2397; Higgs, 713 F.2d at 42. In our view, on this record, there was
no reasonable probability that the outcome of the defendant's trial would have
been different had the grand jury testimony of the agents been available to
defendant for use at trial. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
Therefore, the district court did not abuse its discretion in denying a mistrial
when it decided that the evidence was not material and thus no Brady violation
was committed.
Defendant also claims a violation of the Jencks Act, 18 U.S.C. 3500 (1986).
Specifically, he contends that the government's failure to produce the grand
jury transcripts for trial purposes entitled him either to have the testimony of
Agents Malloy and Monaghan stricken or a mistrial granted pursuant to the
provision of the Jencks Act, 18 U.S.C. 3500(d).6 The government asserts that
there was no reversible error. We review the district court's denial of
defendant's motion for a mistrial based on a claim of Jencks error under an
abuse of discretion standard. United States v. Gross, 961 F.2d 1097, 1104 (3d
Cir.1992).
57
The Jencks Act requires that the government disclose prior recorded statements
of its witnesses that are "related" to the subject matter of their testimony. Such
disclosure must be made after each witness testifies on direct examination. 18
U.S.C. 3500(b); United States v. Jackson, 649 F.2d 967, 971-72 (3d Cir.)
(Jencks Act violated when government withheld prior statement of witness until
close of case), cert. denied sub nom. Blackwell v. United States, 454 U.S. 871,
102 S.Ct. 341, 70 L.Ed.2d 176 (1981). See also United States v. Murphy, 569
F.2d 771, 773 (3d Cir.) (endorsing prevailing practice of government of
disclosing Jencks material at an earlier time), cert. denied 435 U.S. 955, 98
S.Ct. 1588, 55 L.Ed.2d 807 (1978).
58
59
60
Although the government's failure to timely produce the Jencks testimony was
unintentional, it violated the Act unless the statements of the agent-witnesses
could be said to be unrelated to their trial testimony, a claim the government
does not make. Thus, upon disclosure by the government at the close of the
evidence that it failed to provide the grand jury testimony to the defendant, the
district court should have explored every avenue to determine whether there
was a Jencks Act violation and, if so, what remedy might be invoked before
submission of the case to the jury. Certainly it should not have been content
with the vague representation of the prosecutor about when the material would
be produced.
61
62
When the district court and the defendant later received the grand jury
testimony, it afforded the parties an opportunity to brief the issue as to whether
the non-disclosure of it at trial constituted, inter alia, Jencks Act error. No
objection was made to this procedure apart from defendant's basic argument
that he was entitled to have a definitive ruling made at the time of the trial.
Thereafter, the court filed an opinion in which it seems to have concluded that
the non-production of the grand jury testimony for use at trial was not critical to
a finding of guilt or innocence. It apparently determined that the error was
harmless. We turn to that serious issue.
63
64
67
Agent Monaghan's grand jury testimony did not warrant a new trial. It reasoned
that defendant did not suffer any prejudice in cross-examining Castagnola
because Monaghan "made no report of anything he got from Castagnola." On
appeal, defendant has not alleged any specific example of how he was
prejudiced here by the lack of Agent Monaghan's grand jury testimony at trial
for cross-examination purposes in view of his possession of Monaghan's
reports.
68
We find no error in the district court's factual finding that Agent Monaghan's
reports were repetitious and cumulative of his grand jury testimony. Thus, his
grand jury testimony did not contain additional impeachment material which
defendant could have used to cross-examine Agent Monaghan more usefully. In
consequence, we agree with the district court that any Jencks Act error
resulting from the non-disclosure of his grand jury testimony was harmless.
Defendant also contends that he was entitled to a new trial based on the nondisclosure of Agent Malloy's grand jury testimony at trial. He asserts, in effect,
that he was deprived of its possible usefulness for cross-examination purposes.
The district court found that the non-disclosure of this testimony did not so
prejudice defendant as to warrant a new trial.
71
72
The Supreme Court's language in Rosenberg v. United States, 360 U.S. 367, 79
S.Ct. 1231, 3 L.Ed.2d 1304 (1959) is essentially apt here:
[W]hen
the very same information was possessed by defendant's counsel as would
74
have been available were error not committed, it would offend common sense and
the fair administration of justice to order a new trial. There is such a thing as
harmless error and this clearly was such.
75
76
The district court, therefore, did not abuse its discretion in denying the motion
for a mistrial based on violations of the Jencks Act.
79
Agent Malloy and Agent Craven went to the home which Cheryl Hill
apparently shared with defendant. Their purpose was to arrest the defendant on
the charges for which he had been indicted. Cheryl Hill invited Agent Malloy
into the house after telling him that defendant was in the kitchen. Upon finding
no one there, Agents Malloy and Craven conducted a protective sweep of the
premises and found the shotgun in the closet of the bedroom they shared.10 The
shotgun was registered in Cheryl Hill's name.
80
The indictment does not mention the shotgun. However, at trial, the
government sought to elicit testimony from Agent Malloy about the gun. The
defense objected to the evidence as irrelevant and highly prejudicial, but the
district court allowed the testimony.
81
On appeal, defendant asserts that the shotgun testimony was not relevant under
Rule 401 of the Federal Rules of Evidence because it was not offered to prove
any element of the crime. He argues further that the weapon should not have
been admitted because there was no evidence showing a nexus between the gun
and any aspect of the narcotics conspiracy. He also claims that the evidence
was stale since Cheryl Hill purchased the shotgun after the alleged conspiracy
ended. Finally, he contends that, even if the shotgun had some relevance in
establishing a conspiracy, its probative value was substantially outweighed by
the possibility of prejudice. We need not decide whether all these grounds were
proffered to the district court.
82
Assuming that it was error to admit the shotgun testimony into evidence, the
government says it was harmless because Rule 52(a) of the Federal Rules of
Criminal Evidence instructs that "[a]ny error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded." See also 18
U.S.C. 3771. Therefore, in order to justify a new trial, defendant was required
to show a reasonable probability that the assumed error contributed to his
conviction by having a substantial influence on the minds of the jury. Bank of
Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 2374, 101
L.Ed.2d 228 (1987) (quoting Kotteakos v. United States, 328 U.S. 750, 758-59,
66 S.Ct. 1239, 1244-45, 90 L.Ed. 1557 (1946)).
83
We find that any error resulting from the admission of the shotgun testimony
was not likely to have had a substantial influence on the jury, given the other
evidence of defendant's involvement in the conspiracy. In a similar case, where
the government introduced into evidence cash that had been found at the
defendant's apartment on the day of his arrest, this court found the error in
admitting irrelevant evidence to be harmless. United States v. Zarintash, 736
F.2d 66, 72 (3d Cir.1984). Furthermore, as in Zarintash, the prosecutor here
made no mention of the shotgun in his closing argument. Id. Thus, we conclude
that the district court's assumed error in admitting the shotgun evidence was
harmless.
The defendant's final assignment of trial error is that the court's acts of striking
the testimony and giving a curative instruction regarding Cheryl Hill's financial
affairs were insufficient to remedy the prejudice incurred by the defendant.
86
87
88
89
At the close of the evidence, the district court announced that in its view the
government had not introduced evidence showing the necessary nexus.
Thereupon, the defendant's counsel moved for a mistrial. The court denied the
motion. Instead, at the court's invitation, the defendant moved that the
testimony regarding the money orders and Cheryl Hill's finances be stricken.
Over the government's objections, the court granted the motion and said it
would give a curative instruction.
90
The court subsequently gave the jury the following curative instruction:
91 government has presented exhibits in the form of charts and summaries. Now
The
you should consider these charts and summaries as you would any other evidence....
[A]s to summary charts, you're entitled to disregard in part or in whole those charts if
you conclude that there has been errors in the calculations, or in the analysis of
attributions done therein. Most importantly, if you conclude that information was
contained in the Government's charts which was not part of the trial record, then you
should disregard the charts entirely.
92 this case, I excluded and instructed the jury concerning certain evidence dealing
In
with transactions by the defendant's friend, Cheryl Hill. You're not to consider this
evidence during the course of your deliberations, or any chart or summaries prepared
in conjunction with that testimony during their presentation. Now, this exclusion
includes most, if not all of the testimony provided by the bankers, and the testimony
that you have heard given to us concerning the furniture purposes [purchases] by the
individual appearing from that furniture company.
93
App. at 1019-20.
94
The government argues that we need not entertain defendant's argument that
only a mistrial order would have sufficed. It asserts that the testimony about
Cheryl Hill's finances showed a nexus between the evidence and the charges
against defendant. In consequence, it contends that such evidence was
admissible and that it was error for the district court to strike it, thus rendering
it unnecessary to reach the curative instruction issue. Defendant argues that the
district court, in the exercise of its discretion, correctly struck the evidence of
Cheryl Hill's financial affairs.
95
We shall assume, contrary to the government's position, that the district court,
in the exercise of its discretion, did not err in striking the financial materials.
On that assumption, we proceed to the defendant's contention that the striking
of the evidence and the curative instruction did not remove the prejudice arising
from the jury's exposure to the testimony about Cheryl Hill's financial affairs.
96
99
Defendant's argument goes this way: the only evidence of substantial weight
connecting defendant with the conspiracy came from the testimony of the
government's principal witness, Albert Castagnola; that Castagnola's credibility
was seriously impugned, as the district court noted; and thus, as we translate
defendant' argument, it may not have been relied on by the jury in the absence
of the testimony about Cheryl Hill's financial affairs. Defendant apparently also
argues that, even if it was not relied upon, the excluded evidence colored any
other evidentiary basis for the verdict. Defendant therefore maintains that the
extensive testimony about Hill's finances created an overwhelming probability
that the jury was unable to follow the court's curative instruction as well as a
strong likelihood that the evidence had a devastating effect on defendant's case.
100 First, can we say on this record that there was an overwhelming probability that
the jury was "unable" to follow the curative instruction? That instruction was
given shortly after a most severe attack on Castagnola's testimony by defense
counsel in his closing argument. Assuredly, the weight to be given to
Castagnola's testimony, apart from the stricken testimony of Cheryl Hill's
financial affairs, was sharply presented for the jury's consideration at that point.
This is not to say that the testimony about Cheryl Hill's financial affairs was not
potent. Rather, it is to say that Castagnola's credibility and the testimony of the
Hill financial affairs were fairly differentiated for the jury before it retired.
Thus, it was possible for the jury to evaluate Castagnola's credibility apart from
the impact of Cheryl Hill's financial affairs. As we read Greer, the jury was
therefore in a position to follow the curative instructions in arriving at its
verdict. Thus, we find no overwhelming probability that the court's curative
instruction was not observed by the jury.
101 We also conclude that the Cheryl Hill financial material was not devastating to
defendant's case. Substantial support for this view is found in the fact that the
jury acquitted defendant on the substantive money laundering count. Yet, the
Hill financial material was devoted in large measure to such a scheme.
102 We therefore conclude that the curative instruction negated the assumed error
in admitting the testimony about Cheryl Hill's financial affairs.
103 But defendant argues that the cumulative effect of the errors asserted had a
devastating effect on the defense. We do not find that these errors, when
combined, so infected the jury's deliberations that they had a substantial
influence on the outcome of the trial. Thus, the district court properly denied
the motion for a mistrial.
CONCLUSION
104 The judgment of the district court will be affirmed.
The district court addressed the alleged Brady rule and Jencks Act violations
together. Given the controlling law, we will treat those issues separately
Defendant does not base his claim of Brady error on the government's failure to
timely provide Agent Monaghan's grand jury testimony
The government and defendant entered into a pretrial agreement that stated:
Jencks material will be provided today after this [pretrial] conference and it
We realize that the district court stated in its later opinion that it did not order
immediate production of the grand jury evidence because it had not been
transcribed. But this was the government's burden of production. Thus, it is not
clear to us why the court did not explore the feasibility of a continuance in
order to obtain a transcript or consider the other Jencks Act remedies for nonproduction. See 18 U.S.C. 3500(d). No such explanation appears in the record
before us
10
Defendant does not challenge the legality of Agent Malloy's search on appeal