55 F.3d 1456 (9th Cir. 1995), 94-10131, United States v. Hanna

Docket Nº:94-10131.
Citation:55 F.3d 1456
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Cyril T. HANNA, Defendant-Appellant.
Case Date:May 31, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1456

55 F.3d 1456 (9th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Cyril T. HANNA, Defendant-Appellant.

No. 94-10131.

United States Court of Appeals, Ninth Circuit

May 31, 1995

Argued and Submitted April 10, 1995.

As Amended on Denial of Rehearing

Aug. 9, 1995.

Page 1457

Shana Keating, V. Roy Lefcourt, San Francisco, CA, for defendant-appellant.

Martha Boersch, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: SNEED, SCHROEDER, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Cyril T. Hanna appeals his jury conviction and sentence for unlawful possession of a firearm and ammunition in violation of 18 U.S.C. Sec. 922(g)(1). Hanna contends his conviction should be reversed because the government failed to produce (1) the grand jury testimony of the arresting officer, and (2) pretrial statements made by that officer that may have been inconsistent with his trial testimony. As grounds for his contentions, Hanna relied on (1) the Jencks Act, 18 U.S.C., Sec. 3500(e)(3); (2) Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (3) his pretrial discovery request. Hanna argues also that 18 U.S.C. Sec. 922(g)(1) is unconstitutional both on its face and as applied to him, and that his sentence must be reversed because the district court erred in calculating his criminal history points. We have jurisdiction under 28 U.S.C. Sec. 1291, and we vacate Hanna's conviction and remand to the district court for a determination of whether the government failed to disclose any impeachment evidence which could have

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been used to impeach the primary government witness. 1

I

Hanna's conviction was based primarily on the testimony of the arresting officer Kitt Crenshaw. As the government admitted during oral argument, the credibility of Sgt. Crenshaw was the key issue in the case. The trouble leading to this appeal resulted from a significant discrepancy between Sgt. Crenshaw's testimony and the police report he filed after arresting Hanna. Crenshaw stated in the police report:

KNOWING THAT HANNA WAS WANTED IN CONNECTION WITH AN ATT. MURDER CASE, I DETAINED HIM FOR INVESTIGATION. I CUFFED HANNA BEHIND HIS BACK, WHILE DOING SO I FELT AN OBJECT IN HIS BACK PANT AREA.

I RADIOED FOR ASSISTANCE, OFF. HENRY # 789 ARRIVED, I REMOVED THE OBJECT WHICH I DISCOVERED TO BE A SKI MASK, INSIDE THE SKI MASK WAS (E.1) PISTOL, LOADED WITH (4) LIVE ROUNDS, WITH ONE IN THE CHAMBER.

At trial, however, Sgt. Crenshaw testified to a different sequence of events leading to the discovery of the gun. The differences between his testimony and his report are such as to suggest strongly that the report was deliberately written in a self-serving fashion to obscure precisely when, where, and how Sgt. Crenshaw took the pistol from Hanna.

According to this new version, Sgt. Crenshaw only performed a "real light cursory search" as he was handcuffing Hanna. Although during this search Sgt. Crenshaw felt a bulge in the back of Hanna's shirt in the area of his waist, he did not suspect it was a weapon. A transportation van arrived within a matter of minutes and Hanna was placed inside the unit without being thoroughly searched. Sgt. Crenshaw testified that after they had travelled a few blocks, he noticed Hanna perspiring and moving around as though he were trying to conceal something. Sgt. Crenshaw ordered the van to stop and entered the rear of the van to check on Hanna. Only then did he discover concealed on Hanna's person a Raven .25 caliber semiautomatic pistol wrapped in a ski mask.

Prior to trial, Hanna filed a motion for discovery requesting the production of, among other things: (1) "any statement, whether oral or written, made by any individual whom the government intends to call as a witness for trial, which is inconsistent with the witness' anticipated testimony;" (2) "[a]ll statements made by any witness for the government in this case--'Jencks Act' Statements;" (3) "[a]ll information in whatever form, source or nature which is favorable to the defense ... through potential impeachment of governmental witnesses or contradiction of government evidence;" and (4) "the disclosure of grand jury testimony ... [including] testimony of key witnesses who are critical to the government's case." Hanna's theory of defense at trial was that the pistol was never in his possession and that he was being framed by Sgt. Crenshaw.

II

Jencks Act Material

Hanna contends the government failed to produce prior to trial the grand jury testimony and other statements of Sgt. Crenshaw, in violation of the Jencks Act, 18 U.S.C. Sec. 3500(e)(3). We need not reach the merits of this claim because Hanna did not properly raise it before the district court.

The Jencks Act provides in pertinent part:

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the

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witness in the possession of the United States which relates to the subject matter as to which the witness testified....

...

(e) The term "statement", as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means--

...

(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

18 U.S.C. Sec. 3500 (emphasis added).

Production of statements covered by the Jencks Act, however, is not automatic. United States v. Wallace, 848 F.2d 1464, 1470 (9th Cir.1988). In United States v. Burke, this Court stated:

[T]he burden rests upon the defendant to invoke the statute at the appropriate time.... "No ritual of words" is required, but the defendant must plainly tender to the Court the question of the producibility of the document at a time when it is possible for the Court to order it produced, or to make an appropriate inquiry. If he fails to do so he may not assert, on appeal, that failure to order production or to undertake further inquiry was error.... The responsibility for fairly directing the attention of the Court to the precise demand submitted for the Court's determination is appropriately placed upon the Defendant, who seeks the statute's benefits.

United States v. Burke, 506 F.2d 1165, 1168 (9th Cir.1974) (quoting Ogden v. United States, 303 F.2d 724, 733 (9th Cir.1962), cert. denied, 376 U.S. 973, 84 S.Ct. 1137, 12 L.Ed.2d 86 (1964)) (emphasis added), cert. denied, 421 U.S. 915, 95 S.Ct. 1576, 43 L.Ed.2d 781 (1975); see also United States v. Moody, 778 F.2d 1380, 1384 (9th Cir.1985), amended, 791 F.2d 707 (9th Cir.1986) ("[B]ecause 'the defendants failed to urge the asserted error at a time when the court could have made the necessary correction, the contention comes too late on appeal to show reversible error.' ").

Hanna's only request for the production of Jencks Act materials was made in a pretrial motion for discovery. Hanna did not move for the production of grand jury testimony or other witness statements after any of the government witnesses testified. Because Hanna failed to "tender to the Court the question of [Sgt. Crenshaw's statements or prior testimony] at a time when it [was] possible for the Court to order it produced," he may not claim, on appeal, that the failure to produce any such material violated the Jencks Act.

Moreover, we know now from the transcript of the grand jury proceedings, ordered by us to be produced at oral argument, that Sgt. Crenshaw did not testify before that body. The information from him on which the grand jury relied was presented in hearsay form by Special Agent Dios.

III

Brady Material

Hanna contends the prosecution committed reversible error by failing to produce Brady material. Brady material is any evidence material either to guilt or punishment which is favorable to the accused, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). A prosecutor's duty to reveal such evidence does not depend on a request by the defense. United States v. Bagley, 473 U.S. 667, 683, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985); Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir.1992). The Brady rule encompasses impeachment evidence as well as exculpatory evidence. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. Prior statements of a witness that are both material and inconsistent with his anticipated testimony fall within the Brady rule. Kyles v. Whitley, --- U.S. ----, 115 S.Ct....

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