U.S. v. Carter, 92-3286

• Decision Date: 28 November 1995
• Docket Number: No. 92-3286,92-3286
• Citation: 70 F.3d 146,315 U.S. App. D.C. 45
• Parties: UNITED STATES of America, Appellee, v. William CARTER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 146

70 F.3d 146

315 U.S.App.D.C. 45

UNITED STATES of America, Appellee, v. William CARTER, Appellant.

No. 92-3286.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 27, 1995.

Decided Nov. 28, 1995.

Appeal from the United States District Court for the District of Columbia (91cr00482-01).

Mary M. Petras, Washington, DC, argued the cause for appellant. Robert E. Morin was on the briefs.

Leslie A. Blackmon, Assistant United States Attorney, argued the cause for appellee. With her on the brief were Eric H. Holder, Jr., United States Attorney, John R. Fisher, Elizabeth Trosman, and Margaret A. Flaherty, Assistant United States Attorneys.

Before: EDWARDS, Chief Judge, WALD and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

On August 12, 1991, three Metropolitan Police officers stopped a car they believed to be stolen. Carter bolted from the car. Two officers pursued him on foot. The third stayed with two suspects still in the car. At Carter's trial, all three officers testified that, during the chase, they saw Carter throw something from the bridge that runs over the rail yard behind Union Station. After apprehending Carter, the officers searched the rail yard and found three plastic bags containing approximately 56 grams of cocaine base.

Carter was charged with possession with intent to distribute fifty grams or more of cocaine base. 21 U.S.C. Secs. 841(a)(1) & 841(b)(1)(A)(iii). At trial, Carter and his counsel tried to establish that there were four men in the car that day--not three, as the police testified--and that while both Carter and the fourth man ran, the fourth man--and not Carter--threw the drugs from the bridge. Carter's counsel argued that the "Keystone Kops" police had concocted the story about Carter to hide the fact that they had let the real culprit--the fourth man--escape.

That theory suffered a serious blow when the government introduced, as part of its rebuttal case, a tape recording of police radio transmissions made in the minutes surrounding Carter's arrest. On the tape--recorded in the heat of the chase, before the police would have had time to fabricate any story--the officers indicated that there were three people in the car ("White vehicle is occupied three times."); that only one of them ran ("He's on foot, black shorts, white T-shirt."); and that the one who ran threw something from the bridge ("He is throwing something over the bridge."). In its closing argument, the government stressed the importance of the tape and invited the jury to listen to it again. After an hour of deliberations, the jury accepted that invitation. Less than a half hour later, it returned its verdict of guilty.

Carter appeals on the ground that the government impermissibly delayed giving him the tape until the morning of the second day of trial. The government acknowledges that the Jencks Act, 18 U.S.C. Sec. 3500, required it to produce at least a portion of the tape before Carter's trial began. ¹ Once a government witness has testified on direct examination--at trial or at a suppression hearing--the government, on motion of the defendant, must produce any statement in its possession made by the witness and relating to the subject matter of the witness's testimony. 18 U.S.C. Sec. 3500(b); FED.R.CRIM.P. 12(i). The Jencks Act defines "statement" to include a contemporaneous, verbatim recording of the witness's oral statements. 18 U.S.C. Sec. 3500(e)(2). Officer Elisa Brown testified at a suppression hearing the day before Carter's trial. The government, therefore, was obliged, at that time, to provide the defense with at least the portions of the tape containing her radio transmissions. The government had a duty to provide the rest of the tape at trial when the officers testified on direct examination. Yet despite having assured both the defense and the court that it would produce all Jencks Act material before trial, the government failed to supply any portion of the tape until the second day of the trial, after the officers had left the stand.

For reasons we will explain in a moment, we believe the question here is whether the trial judge committed error in admitting the tape in spite of these Jencks Act violations--or, to put the matter differently, whether the trial judge erred in not excluding the tape as a sanction for the violations.

The Jencks Act, passed in the wake of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), enhances the defense's ability to impeach or discredit prosecution witnesses through cross-examination. See Campbell v. United States, 365 U.S. 85, 92, 81 S.Ct. 421, 425, 5 L.Ed.2d 428 (1961). Noncompliance with the Jencks Act may impede the defense in this respect. The potential prejudice is that, in the eyes of the jury, the government's witnesses might appear more credible than they otherwise would have appeared had the defense impeached them with their prior statements. Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 1223-24, 3 L.Ed.2d 1287 (1959). In this light it is easy to see why the Jencks Act "does not contemplate automatic sanctions even when the material has been rendered completely unavailable through loss or destruction." United States v. Lam Kwong-Wah, 924 F.2d 298, 310 (D.C.Cir.1991) (quoting United States v. Rippy, 606 F.2d 1150, 1154 (D.C.Cir.1979)). If the unproduced statement could not have assisted the defense in cross-examining the witness, there is no reason for the trial court to order a mistrial or for an appellate court to reverse a conviction. When, for instance, the missing Jencks material duplicates what the defense already has in its possession, "it would deny reason to entertain the belief that defendant could have been prejudiced by not having the opportunity to inspect" that material. Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 1234, 3 L.Ed.2d 1304 (1959). So too when the missing Jencks material duplicates the witness's testimony. United States v. Lam Kwong-Wah, 924 F.2d at 310.

Lam Kwong-Wah fits this case like a glove. The tape recording, far from impeaching the officers, supported them. On the stand, the officers said there were three people in the car, that only one of them ran, and that the one who ran threw something from the bridge. On the tape, the officers said there were three people in the car, that only one of them ran, and that the one who ran threw something from the bridge.

Carter thus cannot, and does not, claim that the government's delay in producing the tape recording prejudiced his efforts to discredit...