U.S. v. Roberts

• Decision Date: 16 June 1986
• Docket Number: No. 85-5122,85-5122
• Parties: 20 Fed. R. Evid. Serv. 1354 UNITED STATES of America, Appellant, v. Clarence Paul ROBERTS and Linwood Lee Lloyd, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 580

793 F.2d 580

20 Fed. R. Evid. Serv. 1354

UNITED STATES of America, Appellant, v. Clarence Paul ROBERTS and Linwood Lee Lloyd, Appellees.

No. 85-5122.

United States Court of Appeals,

Fourth Circuit.

Argued Sept. 13, 1985.

Decided June 16, 1986.

John F. DePue, Washington, D.C., (John Stuart Bruce, Asst. U.S. Atty., Samuel T. Currin, U.S. Atty., Raleigh, N.C. on brief), for appellant.

J. Randolph Ward, Durham, N.C., for appellees.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

The issue is whether under Fed.R.Crim.P. 16(a)(1)(A) the Government may be compelled to disclose to a defendant before trial statements of co-conspirators that potentially are imputable to the defendant if admitted in evidence under the hearsay exception of Fed.R.Evid. 801(d)(2)(E). The Government, appealing from a suppression order entered when it declined to obey an order to disclose such statements, contends that such discovery is not authorized by the controlling rules, and therefore seeks reversal of the suppression and disclosure orders.

We hold that disclosure of co-conspirator statements may be ordered in appropriate cases, and that on the record before the district court, that court did not err in ordering disclosure and imposing the suppression sanction here. We therefore affirm, and remand for further proceedings, but we do so without prejudice to the district court's power, if so disposed, to entertain and consider a motion by the Government to reconsider the suppression order and to enter a protective order in light of this opinion and the circumstances of this case.

I

This appeal arises from one of a series of three related indictments returned during 1984 and 1985 in the Eastern District of North Carolina, that charged one Douglas Freeman Ross and others, including the appellees Roberts and Lloyd, with various offenses centered upon or growing out of Ross' alleged masterminding and direction of illegal drug operations. The central offenses charged were those of Ross and others that directly related to importation and distribution of illegal drugs. The appellees here, Roberts and Lloyd, were only charged, in one of the indictments, with offenses related to Ross' efforts to conceal his illicit drug proceeds in buying two pieces of real estate. Specifically, appellee Roberts was charged, along with Ross as co-defendant and others not indicted, with conspiracy to obstruct justice by participating in sham real estate purchase transactions designed to conceal Ross' use of the illicit proceeds; both appellees Roberts and Lloyd were charged, along with Ross, with related substantive obstruction offenses; and both appellees Roberts and Lloyd were charged with making false statements to the grand jury in connection with its investigation of the real estate transactions.

Before return of the central indictment in which Roberts and Lloyd were charged along with Ross and others, the Government moved that it be filed under seal, citing "witness security problems." The district court granted the motion.

After all the indictments had been filed, the Government moved to consolidate the three for trial on the basis of their interrelatedness. Before this motion was ruled upon, Ross became a fugitive, and the motion was withdrawn.

After Roberts and Lloyd entered pleas of not guilty to the charges against them, they filed motions for discovery pursuant to Fed.R.Crim.P. 16(a). As relevant to this appeal, the motion sought on behalf of Roberts the statements of any co-defendants which might be imputed to Roberts "under the Government's conspiracy theory [particularly those of] Mr. Ross, with whom he is specifically accused of conspiring." The motion further explained that:

Mr. Roberts' request for statements of his Co-Defendants is based upon the right given the accused in Rule 16 to obtain his own statements, and the underlying purpose of that provision. Where, as in this case, a conspiracy is alleged and the acts and statements of one defendant are sought to be imputed to another for the purpose of determining guilt, that purpose is served by disclosure of co-defendant's statements.

The Government filed a written opposition to the discovery motion arguing, inter alia, that Fed.R.Crim.P. 16(a)(1) did not embrace the statements of co-conspirators made during the course of the conspiracy. Appellees then filed a supplemental memorandum claiming that this court's recent decision in United States v. Jackson, 757 F.2d 1486 (4th Cir.1985), required the disclosure of "statements of co-defendants which might be imputed to the Defendant under the Government's conspiracy theory" when requested by the defense pursuant to Fed.R.Crim.P. 16.

A magistrate directed the government to make the disclosure requested. Upon appeal of the magistrate's order to the district judge, counsel for the government maintained that the magistrate's order was contrary to the plain language of Rule 16(a)(1)(A), contravened the intendment of the Jencks Act, 18 U.S.C. Sec. 3500, and would as a practical matter, require the government to depose all of its witnesses prior to trial in order to create a record of the possible statements of co-conspirators. Addressing the precedential effect of Jackson, government counsel argued that, because of the ultimate disposition in that case, which affirmed the conviction on the basis that failure to disclose was harmless error, this court's statement in that decision that Fed.R.Crim.P. 16(a)(1)(A) required the submission of statements made by co- conspirators to the defense was dicta that was not binding upon the district court.

On the authority of Jackson, the district court affirmed the magistrate's discovery order. Specifically to obtain immediate review of that order, Government counsel informed the court that the Government would not comply with the order and invited the imposition of sanctions, notwithstanding the court's expressed willingness to consider the government's contention that disclosure should not be ordered because of special circumstances involving witness security. The district court then entered an order that because of the government's refusal to comply, "all statements of co-defendants which might be imputed to the defendants under a conspiracy theory shall be suppressed at the defendants' upcoming trial." ¹

From that suppression order, the government appealed under 18 U.S.C. Sec. 3731.

II

We adhere to our ruling in Jackson on the point here in issue, and we take the opportunity presented by this appeal to elaborate to some extent upon the earlier ruling. ²

We observe at the outset that the Government apparently takes the extreme position that under the controlling rules it may not be compelled under any circumstances to disclose before trial co-conspirator statements, whether or not the co-conspirators will testify as Government witnesses at trial. ³ In the Government's view, the only possible source for such discovery, Rule 16(a)(1)(A), does not affirmatively authorize it, and the Jencks Act, 18 U.S.C. Sec. 3500, and its implementing rule, Fed.R.Crim.P. 26.2, flatly prohibit it.

Specifically, says the Government, Rule 16 provides the sole authority for compulsory pre-trial discovery, and in its most relevant provision, Rule 16(a)(1)(A), it literally authorizes discovery only of statements of a "defendant," not of "a defendant's co-conspirators."

Furthermore, the argument goes, the Jencks Act, allowing discovery of government witness statements only after the witness has testified on direct examination should properly be read to apply to co-conspirator statements embodied in Jencks Act statements of third-party government witnesses, thereby providing a further prohibition against the pre-trial discovery of such statements in that embodied form.

Though most courts that have considered the matter hold that the statements of co-conspirators who are "prospective government witnesses" are not discoverable before trial because of the Jencks Act, ⁴ they are in general agreement that under the relevant rules, the statements of co-conspirators not intended to be government witnesses should be discoverable under Rule 16(a)(1)(A) as imputable statements of defendants. ⁵ We are persuaded by the reasoning of those courts which hold that given the imputation of co-conspirator hearsay statements to defendants by the agency fiction of Fed.R.Evid. 801(d)(2)(E), a traditional in pari materia construction of the two rules requires reading Rule 16(a)(1)(A)'s reference to "statements by the defendant" to include any statements made by co-conspirators that have the potential for being treated as evidentiary admissions of the defendant under Rule 801(d)(2)(E).

This is more than a matter of mere tit-for-tat logic. If there were only that, we should be constrained by the powerful principle that it is not our function to re-write plain legislation to make it more logical, or fit, or fair.

Here, however, there is sufficient textual and practical interrelation between Fed.R.Crim.P. 16(a)(1)(A) and Fed.R.Evid. 801(d)(2)(E) that an attempt to harmonize them by construing them in pari materia seems to us warranted.

On that basis, we think that construing Rule 16(a)(1)(A) to reach imputable Rule 801(d)(2)(E) co-conspirator statements as a special case of discoverable "defendant's" statements furthers the legislative intent behind Rule 16, is a permissible construction of the literal text of that rule, ⁶ and simply has no effect upon the purely evidentiary operation of Rule 801(d)(2)(E). The intent behind Rule 16's original authorization of criminal discovery for defendants was to minimize the danger of unfair surprise (surprise with falsehood), to improve the fact-finding process, and to increase the opportunities for informed pleas. The progressive liberalization of the defendant-statement provisions of the rule, culminating in the present...