U.S. v. Burns

• Citation: 15 F.3d 211
• Decision Date: 08 February 1994
• Docket Number: No. 93-1251,93-1251
• Parties: UNITED STATES, Appellee, v. Lisa BURNS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 211

15 F.3d 211

UNITED STATES, Appellee, v. Lisa BURNS, Defendant, Appellant.

No. 93-1251.

United States Court of Appeals, First Circuit.

Submitted Sept. 10, 1993.

Decided Feb. 8, 1994.

William Maselli, Auburn, ME, by Appointment of the Court, on brief, for appellant.

Jay P. McCloskey, U.S. Atty., and Michael M. DuBose, Asst. U.S. Atty., Portland, ME, on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BARBADORO, ^* District Judge.

BARBADORO, District Judge.

Lisa M. Burns, a United States Post Office employee, was tried and convicted on two counts of embezzling mail in violation of 18 U.S.C. Sec. 1709. She argues that we should reverse her conviction because: (1) the prosecutor violated Fed.R.Crim.P. 16(a)(1)(A) by failing to timely disclose a postal inspector's report summarizing statements Burns made to one of her supervisors; (2) the District Judge erroneously admitted other allegedly involuntary statements Burns made to the investigating postal inspector; (3) the Judge mistakenly read from a superseded indictment during his preliminary jury instructions; (4) the Judge improperly excluded on hearsay grounds certain testimony Burns offered to impeach the testimony of another witness; and (5) the Judge's jury instruction concerning Burns' intoxication defense unconstitutionally required her to prove that she acted without criminal intent. Finding no reversible error in these claims, we affirm her conviction.

I. Background

Lisa Burns first came to the attention of United States Postal Inspectors after Inspector Robert Bethel placed a routine "test mailing" at the Naples, Maine post office where Burns worked. "Test mailing" is the Postal Service's method of determining whether employees at certain randomly-selected post offices are properly handling the mail. The "test mail" is an envelope addressed to a fictitious person at a non-existent post office box at the targeted post office. The envelope is typically marked "refund inside" and contains a rebate check made out to bearer. The return address on the envelope specifies a post office box in the New England area controlled by the Postal Service. If the mailing is handled properly, it is usually marked "undeliverable" and returned within two weeks. If it is not returned, the postal inspector targets the post office for additional test mailings and attempts to determine what happened to the initial mailing.

The first test mailing Bethel placed at the Naples post office contained a $5 rebate check. When the mailing was not returned, Bethel recovered the cashed rebate check and determined that it had been endorsed by Burns. Bethel then tried to tempt Burns with a second mailing containing a $10 rebate check. It also disappeared. This time, Bethel discovered that the rebate check apparently had been endorsed by Karen King, Burns' roommate.

After failing to entice Burns with yet another test mailing, Bethel confronted her in the parking lot of the post office. He identified himself, described the nature of his investigation, advised Burns that she was not under arrest, and asked her whether she would be willing to speak with him. She agreed, and they returned to the post office. Before beginning his questioning, Bethel read Burns her Miranda rights from a Postal Service waiver form. He also had her initial each printed statement after it was read and sign the form at the end. Burns then made several incriminating statements in response to Bethel's questions. At the end of the interview, she wrote out and signed a statement memorializing her admissions. Burns later sent Bethel a supplemental statement in which she alleged that she had an imperfect recollection of the incidents in question because she was an alcoholic and was intoxicated when she took the test mailings. At trial, the government's case rested primarily on Bethel's testimony and Burns' admissions. In response, Burns pleaded entrapment and intoxication. The jury ultimately rejected her defenses and found Burns guilty on both counts. She was later sentenced to 60 days confinement and fined $500.

II. Discussion

A. Pre-Trial Disclosure Pursuant to Rule 16

Burns' primary argument on appeal is that the prosecutor violated Rule 16(a)(1)(A) by failing to disclose prior to trial a report summarizing statements Burns made to one of her supervisors. In pertinent part, the rule provides that:

Upon request of a defendant the government shall disclose to the defendant and make available for inspection, copying, or photographing: ... that portion of any written record containing the substance of any relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent....

Burns argues that her supervisor was a "government agent" and that she made her statements "in response to interrogation." Thus, she contends that the prosecutor was obligated to disclose the report pursuant to her pretrial request. We reject Burns' arguments because we determine that Burns' supervisor was not a "government agent" as that term is used in Rule 16. ¹

Rule 16 does not define "government agent." We therefore must choose between the two plausible definitions of the term. Viewed broadly, the term encompasses anyone who performs duties of a public nature on behalf of the executive, legislative or judicial branches of the local, state or federal government. Black's Law Dictionary 695-96 (6th ed. 1990) (defining "government" and "government agent"). Burns' supervisor would qualify as a government agent under this definition because he was employed by the United States Postal Service when the statements were made. The competing definition is narrower and more colloquial. It includes only persons with criminal law enforcement responsibilities or their agents. See, e.g., Hoffa v. United States, 385 U.S. 293, 295, 305-07, 87 S.Ct. 408, 410, 415-16, 17 L.Ed.2d 374 (1966) (using "government agent" to describe an undercover law enforcement officer); Illinois v. Perkins, 496 U.S. 292, 294, 297, 299, 110 S.Ct. 2394, 2395, 2397, 2398, 110 L.Ed.2d 243 (1990). Under this definition, Burns' supervisor would not qualify as a government agent since he had no criminal law enforcement responsibilities and was not acting as an agent of the postal inspectors when Burns made the incriminating statements. The choice between these two definitions presents a question of law which we review de novo. United States v. O'Neil, 11 F.3d 292, 294 (1st Cir.1993).

We begin our analysis with the axiom that language must be interpreted in context. Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 357, 93 L.Ed.2d 216 (1986). As we have recently acknowledged, "[t]erms in an act whose meaning may appear plain outside the scheme of the statute can take on a different meaning when read in their proper context." Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 825 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993).

Here, by limiting the prosecution's disclosure obligation to summaries of relevant statements that are made by a defendant "in response to interrogation," the Rule's surrounding text strongly supports the narrow reading of the term. When Rule 16 was amended in 1974 to include the language at issue, the amendment's drafters were working in a milieu in which courts were required to give special attention to statements obtained in response to interrogation by law enforcement officers. See, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Obviously, Miranda and its progeny require suppression of a defendant's statements obtained through custodial interrogation unless the defendant properly waived his or her Miranda rights. Id. at 444-45, 86 S.Ct. at 1612-13. Moreover, even if a defendant was not in custody, his or her statements might still be suppressed if they were coerced through interrogation by law enforcement officers. See, e.g., Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961); Davis v. North Carolina, 384 U.S. 737, 740-42, 86 S.Ct. 1761, 1763-65, 16 L.Ed.2d 895 (1966); Beecher v. Alabama, 389 U.S. 35, 36 & n. 2, 88 S.Ct. 189, 191 & n. 2, 19 L.Ed.2d 35 (1967). See also Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2d 1 (1976) (citing Rogers and Davis for the proposition that statements resulting from noncustodial interrogation may be suppressed if involuntary). Such concerns did not then and do not now apply to statements obtained from a defendant by persons without law enforcement responsibilities, regardless of whether the statements were obtained through interrogation. See, e.g., Yates v. United States, 384 F.2d 586, 587-88 (5th Cir.1967) (hotel manager who tipped FBI); United States v. Antonelli, 434 F.2d 335, 336-38 (2d Cir.1970) (private security guard); United States v. Eide, 875 F.2d 1429, 1431, 1433-34 (9th Cir.1989) (defendant's supervisor at federal Veterans' Administration Medical Center); United States v. Pullen, 721 F.2d 788, 790-91 (11th Cir.1983) (bank officials). Thus, if "government agent" refers only to law enforcement officials or persons acting on their behalf, the potential for pretrial suppression of statements that resulted from interrogation by such individuals provides a rational basis for limiting the government's pretrial disclosure obligation to summaries of statements made "in response to interrogation." The rational basis for the interrogation limitation disappears, however, if "government agent" is construed to mean government employee.

Besides enjoying strong contextual support, the narrow meaning of "government agent" avoids the arbitrariness that would result if the term were defined more expansively. We agree that the broad reading of "government agent" gives maximum deference to the policies underlying Rule 16's mandatory disclosure rules....