Anderson v. U.S., 85-1551

• Decision Date: 14 April 1986
• Docket Number: No. 85-1551,85-1551
• Citation: 788 F.2d 517
• Parties: Sam ANDERSON, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 517

788 F.2d 517

Sam ANDERSON, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 85-1551.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 11, 1985.

Decided April 14, 1986.

Jack Lassiter, Little Rock, Ark., for appellant.

W. Asa Hutchinson, Fort Smith, Ark., for appellee.

Before ARNOLD and WOLLMAN, Circuit Judges, and REGAN, ^* Senior District Judge.

WOLLMAN, Circuit Judge.

Sam Anderson, Jr. appeals from a judgment of conviction entered February 28, 1985, following a jury trial at which he was found guilty of two counts of conspiring to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1982) and of one count of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1). We remand to the district court for further proceedings.

Anderson was originally charged with four counts (the fourth was dismissed before trial upon the government's motion). Count I charged Anderson with conspiring with Roger Clinton to distribute cocaine from November 1983 through February 1984. Count II charged Anderson with conspiring with Maurice Rodriguez to distribute cocaine from May 1984 through June 1984. Count III charged Anderson with distributing a gram of cocaine to Clinton for Rodney Meyers, an Arkansas State Police informant, on June 20, 1984. Clinton and Rodriguez were separately indicted and pleaded guilty to similar charges.

I.

Anderson claims prejudicial error in the district court's refusal to allow a proffer at the pretrial hearing of the testimony of state police officers to show the materiality of statements made by Clinton, who was a key government witness in Anderson's trial. Clinton testified that approximately seventy-five percent of the cocaine he received from Rodriguez from November 1982 through February 1984 was delivered to Anderson, and that he obtained one gram of cocaine from Anderson that he sold to Meyers on June 20, 1984. The government refused to produce state police investigation tapes of conversations involving Clinton because they were voluminous and purportedly unrelated to Anderson's case. The government also refused to produce statements made by Clinton during a polygraph examination on the ground that they were not discoverable. Despite specific requests for these alleged exculpatory or Jencks Act statements, Anderson was not granted access to the tapes or the polygraph statements. The district court held that since Anderson had not yet shown materiality, he could not make the proffer. Furthermore, the district court denied Anderson's request for an in camera review of the Clinton tapes.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court held that "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 punishment, irrespective of the good faith or bad faith of the prosecution." The Court defined materiality in United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985):

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

See also United States v. Agurs, 427 U.S. 97, 113-14, 96 S.Ct. 2392, 2402-03, 49 L.Ed.2d 342 (1976). This definition of materiality applies to all cases of prosecutorial failure to disclose favorable evidence whether there was "no request," a "general request," or a "specific request," on the part of the defendant. Bagley, 105 S.Ct. at 3384. Similarly, there is no constitutional distinction between impeachment and exculpatory evidence. Id. at 3381.

Whether the statements were material to Anderson's guilt or punishment is a question that the district court should have determined by reviewing the tapes and the polygraph statements in camera. United States v. Griggs, 713 F.2d 672, 674 (11th Cir.1983); United States v. Peters, 625 F.2d 366, 371 (10th Cir.1980); United States v. Brown, 574 F.2d 1274, 1278 (5th Cir.1978). But see United States v. Strahl, 590 F.2d 10, 15 (1st Cir.1978), cert. denied 440 U.S. 918, 99 S.Ct. 1237, 59 L.Ed.2d 468 (1979).

The Jencks Act, 18 U.S.C. Sec. 3500, requires the government to provide the defendant upon motion any statement or report made by a government witness which relates to the subject matter of the witness' direct testimony. 18 U.S.C. Sec. 3500(a) and (b). The government is not required to produce such statement or report until after the witness has testified on direct examination. 18 U.S.C. Sec. 3500(a). The Act defines "statement" as:

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

(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or

(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(e).

Whether a statement meets the statutory definition is a question of fact to be determined by the district court. Canaday v. United States, 354 F.2d 849, 858 (8th Cir.1966). The district court could have fulfilled its responsibility by hearing extrinsic evidence or by in camera review. Canaday, 354 F.2d at 859. In Campbell v. United States, 365 U.S. 85, 95, 81 S.Ct. 421, 426-27, 5 L.Ed.2d 428 (1961), the Supreme Court stated:

The statute says nothing of burdens of producing evidence. Rather it implies the duty in the trial judge affirmatively to administer the statute in such a way as can best secure relevant and available evidence necessary to decide between the directly opposed interests protected by the statute--safeguarding government papers from disclosure, and the interest of the accused in having the government produce "statements" which the statute requires to be produced.

Our review of the record discloses that the district court did not fully discharge the duty imposed upon it by Brady and Sec. 3500. Accordingly, we remand with directions that the district court review in camera the Clinton tapes and the statements made by Clinton during the polygraph examination. ¹ After conducting such review, the district court should determine whether any of this evidence is exculpatory or meets the Jencks Act definition of a statement and enter findings accordingly. If the district court finds that the statements were exculpatory or would have been helpful in Anderson's cross-examination of Clinton, it must then determine whether the material contained in the tapes met the materiality test set forth in Bagley and...