U.S. v. Del Toro Soto

• Decision Date: 23 April 1982
• Docket Number: 81-1169,Nos. 81-1184,s. 81-1184
• Citation: 676 F.2d 13
• Parties: 10 Fed. R. Evid. Serv. 603 UNITED STATES of America, Appellee, v. Victor DEL TORO SOTO, Defendant-Appellant. UNITED STATES of America, Appellee, v. Francisco Rivera GONZALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 13

676 F.2d 13

10 Fed. R. Evid. Serv. 603

UNITED STATES of America, Appellee, v. Victor DEL TORO SOTO, Defendant-Appellant.

UNITED STATES of America, Appellee, v. Francisco Rivera GONZALEZ, Defendant-Appellant.

Nos. 81-1184, 81-1169.

United States Court of Appeals, First Circuit.

Argued Feb. 1, 1982.

Decided April 23, 1982.

Carlos Lopez De Azua, Hato Rey, P. R., by appointment of the Court, for defendant-appellant Francisco Rivera-Gonzalez.

Marshall D. Stein, Boston, Mass., by appointment of the Court, with whom Hale, Sanderson, Byrnes & Morton, Boston, Mass., was on brief, for defendant-appellant Victor del Toro Soto.

H. Manuel Hernandez, Asst. U. S. Atty., Hato Rey, P. R., with whom Raymond L. Acosta, U. S. Atty., Hato Rey, P. R., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

These are appeals by Victor del Toro Soto and Francisco Rivera Gonzalez from jury convictions of aiding and abetting each other in tearing, cutting, and injuring two United States mail pouches and stealing mail matter and money from a postal employee by the use of force and violence in violation of 18 U.S.C. §§ 2, 1706 and 2114.

We discuss the issues seriatim in descending order of importance starting with those raised by appellant del Toro Soto.

The Jencks Act Issue

Postal Inspector Jose Daniel Cardona was the government agent in charge of the case. He testified in detail about his investigation, including interviews he had conducted with two indicted codefendants, Victor Garcia Ramos and Jose Maldonado Vega, who were government witnesses at the trial. During cross-examination, Cardona testified that he made a "presentation letter" to the United States Attorney's office of the entire investigation, including what he had done personally. The "presentation letter" was based on reports and notes he had made during the investigation. Defense counsel requested an opportunity to examine the investigation report. The court ruled without any examination of the report and inquiry that it "is not 3500 material." A short time later defense counsel requested that the court reconsider its ruling. Although his position was not explained very clearly, defense counsel urged that the report of the agent-witness came within the definition of producible material under 18 U.S.C. § 3500. The motion for reconsideration was denied, again without any inquiry into or examination of the material sought.

We begin our analysis with the pertinent words of the statute:

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 witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

18 U.S.C. § 3500(b).

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--

(1) a written statement made by said witness and signed or otherwise adopted or approved by him(.)

28 U.S.C. § 3500(e)(1).

There can be little doubt that Cardona's investigation report is a statement within the plain meaning of the words of the statute. And the case law reinforces that conclusion. Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961), held that a memorandum by a government agent-witness prepared after an interview with a witness without the benefit of interview notes, came within the statute and should have been produced. In Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976), the Court held that a writing prepared by a Government lawyer relating to the subject matter of the testimony of a Government witness that has been "signed or otherwise adopted or approved" by the Government witness is producible under the Jencks Act, and is not rendered nonproducible because a Government lawyer interviews the witness and writes the "statement."

Id. at 98, 96 S.Ct. at 1342.

In United States v. Cleveland, 477 F.2d 310 (7th Cir. 1973), a case on all fours with this, Judge (now Associate Justice) Stevens ruled that the term "statement" in subsection (e)(1) of the Act "includes the report of a government agent who testified as a prosecution witness." Id. at 316. With one exception, the cases relied on by the government have to do with the producibility of reports, see infra, not whether they constitute a statement under the statute. United States v. Nickell, 552 F.2d 684, 687-88 (6th Cir. 1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2233, 56 L.Ed.2d 402, reh'g denied, 438 U.S. 908, 98 S.Ct. 3128, 57 L.Ed.2d 1150 (1978), held, with one judge dissenting, that "all of the reports" of an FBI agent-witness were not Jencks Act statements and need not be examined by the district court in camera because it was undisputed that the witness statements taken by the agent had been made available to defense counsel. In United States v. Dark, 597 F.2d 1097 (6th Cir.), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 183 (1979), the court held, citing to and quoting from Nickell, that the contents of the case file of an IRS special agent who testified were not Jencks Act statements and did not require an in camera inspection by the district court because there was no basis for belief that a Jencks Act statement existed other than those already furnished defense counsel. Id. at 1099. We do not think these cases are applicable. As we read the Sixth Circuit cases, they involved an attempt by defense counsel to examine material that they hoped might contain Jencks Act statements of any government witness. That is not our situation. Here, the witness had testified at length about the investigation he conducted of the robbery. He had already submitted a report covering in part, at least, the subject matter of his testimony. If there was a conflict between the report and his testimony, it was impeachment ammunition for the defense. We think Justice Stevens' concurrence in Goldberg is instructive. He points out that "(t)he statutory definition of the term 'statement' was intended by Congress to describe material that could be fairly used to impeach the testimony of a witness." 425 U.S. at 112, 96 S.Ct. at 1349. We hold that the district court erred in ruling that the investigation report was not section 3500 material.

But determining that the report was a statement under the Act is only the first step. As was pointed out in United States v. Cleveland, 477 F.2d at 315-16, there are two problems: first, is the report a statement within the meaning of the statute, and second, is it producible. In determining whether the report is producible, "the key question is whether the information contained in the statements 'relate(s) generally to the events and activities testified to' by the witness." United States v. Ferreira, 625 F.2d 1030, 1034 (1st Cir. 1980), quoting United States v. O'Brien, 444 F.2d 1082, 1086 (7th Cir. 1971). This determination must be made in the first instance by the district court. Goldberg v. United States, 425 U.S. at 108-09, 96 S.Ct. at 1347. This will usually require a careful examination of the material sought. The trial judge has the affirmative duty

to administer the statute in such way as can best secure relevant and available evidence necessary to decide between the directly opposed interests protected by the statute-the interest of the Government in safeguarding government papers from disclosure, and the interest of the accused in having the Government produce "statements" which the statute requires to be produced.

Campbell v. United States, 365 U.S. 85, 95, 81 S.Ct. 421, 427, 5 L.Ed.2d 428 (1961). In United States v. Strahl, 590 F.2d 10, 14-15 (1st Cir. 1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1237, 59 L.Ed.2d 468 (1979), we emphasized the vital role of the district judge in conducting a searching Jencks Act inquiry. Here, there was no inquiry at all. In Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217, 1225, 3 L.Ed.2d 1287 (1959), the Court noted: "(W)hen it is doubtful whether the production of a particular statement is compelled by the statute, we approve the practice of having the Government submit the statement to the trial judge for an in camera determination. Indeed, any other procedure would be destructive of the statutory purpose."

Under the circumstances here, we have no alternative except to remand to the district court for a determination of whether Cardona's report related to the events and activities testified to by him on the witness stand. Goldberg v. United States, 425 U.S. at 108-09, 96 S.Ct. at 1347; United States v. Peters, 625 F.2d 366, 372 (10th Cir. 1980); United States v. Conroy, 589 F.2d 1258, 1273 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); United States v. Cleveland, 477 F.2d at 316. ¹

Although defendant Rivera Gonzalez did not expressly join in the request for production of the report, it is obvious that the district court's ruling affected both cases and this issue must be considered common to both. The procedure to be followed on remand is well settled. The district court must examine the report in camera and, after a complete inquiry, supplement the record with express findings. If it is then determined to reaffirm the denial of the motion to produce, new final judgments of conviction should be entered in each case. If appellate review is sought, the report should be placed in a sealed envelope for transmission to this court. If, on the other hand, the report is determined to be producible, there must be a new trial in both cases unless the error is deemed harmless. Goldberg v. United...