U.S. v. Boshell

• Decision Date: 20 December 1991
• Docket Number: Nos. 90-30115,90-30118 and 90-30119,s. 90-30115
• Citation: 952 F.2d 1101
• Parties: UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. John BOSHELL, Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1101

952 F.2d 1101

UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. John BOSHELL, Defendant-Appellee-Cross-Appellant.

Nos. 90-30115, 90-30118 and 90-30119.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 10, 1991.

Decided Dec. 20, 1991.

Aaron L. Lowe, Spokane, Wash., for defendant-appellee-cross-appellant, John Boshell.

Earl A. Hicks, Asst. U.S. Atty., Spokane, Washington, for plaintiff-appellant-cross-appellee, U.S. of America.

Thomas Hillier, Federal Public Defenders, Seattle, Wash., for the amicus curiae Federal defendants of the Ninth Circuit on behalf of defendant-appellee-cross-appellant, John Boshell.

Appeal from the United States District Court for the Eastern District of Washington.

Before D.W. NELSON, NOONAN, and T.G. NELSON, Circuit Judges.

D.W. NELSON, Circuit Judge:

Boshell appeals from his conviction for conspiracy to knowingly and intentionally possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. Boshell alleges the government failed to timely produce discovery in compliance with the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government cross-appeals from the district court's downward departure from the Sentencing Guidelines based on Boshell's character and the disparity between the sentence he would have received under the guidelines and that of his co-defendants who pled guilty to pre-guidelines offenses. See United States v. Boshell, 728 F.Supp. 632 (E.D.Wash.1990).

The district court's decisions on the Jencks Act and Brady materials are affirmed. Boshell's sentence is vacated and remanded for an articulation of reasons justifying any departure from the sentencing guidelines.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence at trial established that Boshell, a former Los Angeles County Sheriff, was involved in a multi-state cocaine distribution network. Boshell and twenty-two other defendants were indicted. As a result of guilty pleas and a dismissal, only four defendants actually went to trial. One defendant, Foss, was granted a motion for judgment of acquittal. Boshell, Fischer and Arnone were found guilty of conspiracy to distribute cocaine.

The district court sentenced Boshell to 40 months imprisonment with five years supervised release. The government filed its notice of appeal on March 19, 1990, and defendant's notice of appeal was filed on March 22, 1990. This court has jurisdiction over the appeal under 28 U.S.C. §§ 1291, 1294(1) and 18 U.S.C. § 3742(b).

II. DISCUSSION

1. Compliance with the Jencks Act

Appellant contends that the government failed to turn over materials to which the defense was entitled under the Jencks Act in a timely fashion. 18 U.S.C. § 3500(b), (c) and (d). We review a district court's denial of a motion to produce a witness' statement pursuant to the Jencks Act for abuse of discretion. United States v. Cowley, 720 F.2d 1037, 1040 n. 1 (9th Cir.1983), cert. denied, 465 U.S. 1029, 104 S.Ct. 1290, 79 L.Ed.2d 692 (1984). We review for clear error factual findings underlying the district court's ruling. United States v. Goldberg, 582 F.2d 483, 486 (9th Cir.1978).

The Jencks Act requires that after a government witness has testified on direct, the government must give the defendant any statement, as defined by the Act, in the government's possession that was made by the witness relating to the subject matter to which the witness testified. 18 U.S.C. § 3500 (1976); United States v. Loyd, 743 F.2d 1555, 1565 (11th Cir.1984). 18 U.S.C. § 3500(e) defines, in relevant part, a "statement" as: (1) a written statement made by the witness and signed or otherwise adopted or approved by him, (2) a substantially verbatim, contemporaneously recorded transcription of the witness' oral statement.

The district court must first consider whether the challenged materials are a statement within the meaning of § 3500(e)(1). A verbal acknowledgment that the notes constitute an accurate account of the witness' interview is sufficient for the report or notes to qualify as a statement under § 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92, 83 S.Ct. 1356, 1359-60, 10 L.Ed.2d 501 (1963).

Appellant alleges that witness Barbalinardo met with government agents on June 22, 1988 and made a statement. He alleges that four agents took notes of that conversation and that the government violated the Jencks Act by failing to provide the notes. However, Barbalinardo testified repeatedly that he first met with the government on July 28, 1988. Without any evidence to contradict this testimony, Boshell's challenge based on this alleged earlier meeting is without substance.

Appellant also challenges the failure to produce in a timely fashion the rough notes of the July 28, 1988 interview between Barbalinardo and the government. The district court ruled that Agent Davidson's rough notes of the July 28 interview were not his or Barbalinardo's "statements." Agent Davidson's notes, consisting of two pages listing some names, were very cryptic. Barbalinardo testified that the agent did not take notes of everything he said. Agent Davidson testified that his primary purpose for taking notes was to record names of individuals who might be relevant to the investigation. The district court was correct in ruling that the notes were not a substantially verbatim recital of Barbalinardo's oral statement, nor were they seen, signed or adopted by Barbalinardo, nor were they a complete recording of Davidson's observations.

Appellant also challenges the failure to provide notes of the interview between Barbalinardo and Agent Davidson on August 19-20, 1988. The district court found that the notes were not a substantially verbatim recital. Although the notes are lengthy, they are cryptic, listing names without comment, as well as scattered events and dates. The district court did not commit clear error in deciding that this was not a substantially verbatim recording of the witness's statement.

It appears, however, that on August 21, 1988, Agent Davidson went over his notes with Barbalinardo present, and as Barbalinardo confirmed certain facts, Agent Davidson dictated them into a tape recorder. Before trial, the government turned over to the defense a typed version of that taped statement.

If notes are occasionally read back to a witness to see whether or not the government agent correctly understood what he was saying, that act constitutes adoption by the witness. Goldberg v. United States, 425 U.S. 94, 98, 100-01, 96 S.Ct. 1338, 1343-44, 47 L.Ed.2d 603 (1976). Barbalinardo's confirmation of the facts in the notes before they were dictated on tape makes the notes and the tape producable under Jencks.

Before reversal is required, appellant must prove that more than harmless error occurred because of the failure to timely produce these materials. Without any suggestion that the notes would have helped appellant overcome the hard evidence the district court used to convict him, we cannot reverse. United States v. Pisello, 877 F.2d 762, 768 (9th Cir.1989), citing United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987); United States v. Wallace, 848 F.2d 1464, 1471 (9th Cir.1988) (Jencks Act violations normally do not implicate constitutional rights and do not merit reversal when more likely than not harmless). Appellant does not argue that timely production of these notes would have made a difference to the decision to convict him. If any error occurred, it was harmless.

Appellant makes a similar argument with regard to the March 7 and 8 debriefing of witness Jipner. The agent took notes, recited them to the witness and then dictated a statement onto a tape cassette. The government provided appellants with a typed statement made from the tape, but did not produce the tape or the rough notes that formed the basis of that statement. Though the witness adopted the notes and the tape by approving their contents, appellant has made no showing that more than harmless error occurred because of the failure to produce this material.

Appellant also complains that "discovery and Jencks Act materials" of a series of meetings between Barbalinardo and co-defendant Keuter regarding a controlled buy of cocaine were not turned over until after Barbalinardo's cross-examination began. Appellant does not specify what the Jencks Act material was, nor does he argue that it would have made a difference to the determination of his guilt, innocence or sentencing. Without more specific allegations and proof, appellant's Jencks Act claim with regard to these meetings lacks merit.

In determining that witnesses Hicks' and Wolkey's notes were not producible, the district court found that the notes were neither read to the witnesses nor adopted by them. Without such a showing, the notes are not statements subject to production under Jencks. Goldberg, 425 U.S. at 110, n. 19, 96 S.Ct. at 1348, n. 19. Defendant has not shown that the court's determination was clearly erroneous.

Appellant also argues that "other Jencks materials regarding Mr. Marlton" were not provided. He apparently seeks information regarding a 1986 debriefing by unknown agents on a tax offense which the government claims is unrelated. Assistant United States Attorney Hicks informed the court that the government did not possess this information. Even if this information were in the government's possession and were relevant, without a showing of why failure to produce this evidence is more than harmless error, appellant fails in his contention that his conviction should have been reversed.

Finally, appellant contends that "rough factual interview notes which were taken by Assistant United States Attorneys or their law clerks in this matter" were not turned over. The brief provides no detail concerning who was...