U.S. v. Schoenborn, 92-2680

• Citation: 4 F.3d 1424
• Decision Date: 04 November 1993
• Docket Number: No. 92-2680,92-2680
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sheldon SCHOENBORN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1424

4 F.3d 1424

UNITED STATES of America, Plaintiff-Appellee, v. Sheldon SCHOENBORN, Defendant-Appellant.

No. 92-2680.

United States Court of Appeals, Seventh Circuit.

Argued March 29, 1993.

Decided Sept. 21, 1993.

Rehearing and Suggestion for

Rehearing En Banc Denied Nov. 4, 1993.

Daniel Bach and Larry Wszalek (argued), Office of U.S. Atty., Madison, WI, for plaintiff-appellee.

Jill L. Kline (argued), Oshkosh, WI, for defendant-appellant.

Before FLAUM and KANNE, Circuit Judges, and REAVLEY, Senior Circuit Judge. ^*

KANNE, Circuit Judge.

Sheldon Schoenborn, a prisoner at the Federal Correctional Institution in Oxford, Wisconsin, was convicted of one count of assault with a dangerous weapon, with intent to do bodily harm, in violation of 18 U.S.C. Sec. 113(c). The jury found that on the night of December 16, 1991, Schoenborn entered the prison gym, approached fellow inmate Gordon Roy, and struck Roy several times on the head with a metal object. ¹ The district court sentenced the defendant to five years in prison, the statutory maximum, and tacked on three years of supervised release following incarceration.

Schoenborn filed a timely appeal, raising four challenges to his conviction. The first and most substantial concerns an evidentiary ruling made by the district court. Schoenborn's second and third arguments are intertwined with the first, and challenge the sufficiency of the evidence against him. The final contention addresses the sentence he received. We consider these arguments seriatim, concluding that the conviction and sentenced should be affirmed.

I.

Schoenborn claims the trial court erred in admitting into evidence a report by FBI Special Agent Richard Staedtler. On December 31, 1991, Staedtler interviewed Todd Coleman, an inmate at Oxford who was in the gym on the night of the alleged attack. The agent subsequently transcribed his interview notes into a report. Approximately four months later, in April 1992, Staedtler returned to Oxford and reviewed the report with Coleman. The report stated, in part:

A couple of weeks ago, in the evening, [Coleman] was in the gymnasium, sitting on the steps between the pool room and the basketball court. He saw a Native American inmate doing situps on the floor of the stage and another Native American punching the heavy bag. The inmate who had been punching the heavy bag then picked up a piece of pipe about two feet long from the weight bench and went over to the inmate doing situps and hit him in the head with the pipe.

The government called Coleman at trial. His unease on the stand is apparent from the record. When asked if anything unusual happened at the Oxford gym on the night of December 16, 1991, Coleman responded that he thought there had been a fight. When asked if he saw the fight, he replied, "To a point." Coleman testified that he did not see Schoenborn strike Roy, only that he saw one Native American jump off the gym stage and run in one direction, and another Native American jump off the stage and head in the opposite direction. One of the men (Roy) was bleeding, and ran into the bathroom. Coleman followed him and helped him clean up. Though he acknowledged that a Native American man (presumably Schoenborn) was sitting in court, Coleman could not remember if he was one of the men who jumped from the stage.

Coleman was then questioned by the government about his interview with Agent Staedtler. Coleman testified that he could not remember if he had provided a statement to the agent. When shown Staedtler's report, Coleman said it did not refresh his memory of the interview, adding, "Some of the things that was said in [the report] I heard discussed by some other inmates that I guess alleged to seen what happened, but I don't remember. I don't remember." Coleman admitted that Staedtler had asked him some questions about the incident in the gym and that, as best he could remember, he had answered truthfully.

On cross-examination, Coleman testified that he thought he had seen Staedtler's report after it had been typed, but denied telling Staedtler that it was accurate. According to Coleman, Staedtler had asked him to sign the statement but he refused because he "wasn't sure about the things that were in there." He added that his answers to the agent's questions were based on what he had heard from others, not events he had actually witnessed in the gym. On redirect, Coleman confessed that he did not want to testify, but insisted he was telling the truth.

Faced with the testimony of a witness with cold feet and a selective memory, the government sought to introduce Staedtler's report pursuant to Fed.R.Evid. 803(5), the recorded recollection exception to the hearsay rule. ² Under Rule 803(5), a document may be read to a jury if (1) the witness once had knowledge about matters in the document; (2) the witness now has insufficient recollection to testify fully and accurately; and (3) the record was made or adopted at a time when the matter was fresh in the witness's memory and reflected his knowledge correctly. United States v. Lewis, 954 F.2d 1386, 1393 n. 6 (7th Cir.1992); United States v. Porter, 986 F.2d 1014, 1016-17 (6th Cir.1993), petition for cert. filed, July 7, 1993; United States v. Sollars, 979 F.2d 1294, 1298 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1864, 123 L.Ed.2d 484 (1993).

Staedtler took the stand and testified that he interviewed Coleman, took notes during their interview, and accurately transcribed them into a report. According to Staedtler, he subsequently reviewed the report with Coleman, who said the report was accurate in all respects. Counsel for Schoenborn interposed a hearsay objection and, at a side bar, opposed admission of the report under Rule 803(5) on the grounds the report was not based on Coleman's personal knowledge and he had neither prepared nor adopted it.

The government responded that Staedtler's report was admissible and could be read to the jury under this court's decision in Lewis, 954 F.2d at 1392-95. After reviewing Lewis, the district court allowed Staedtler to read the portion of his report set out above. On cross-examination, Staedtler admitted that Coleman refused to sign the report when the agent showed it to him. The next day, having reviewed the transcript of Coleman's testimony in conjunction with the Lewis decision, the district court concluded that the requirements of Rule 803(5) had been met and reaffirmed its earlier decision to admit the report.

On appeal, Schoenborn argues that this decision was error. "In general, the district court is given broad discretion in determining the admissibility of evidence. Accordingly, challenges to evidentiary determinations are reviewed for a clear abuse of this discretion." United States v. Dominguez, 992 F.2d 678, 680-81 (7th Cir.1993). See also United States v. Williams, 951 F.2d 853, 857 (7th Cir.1992). In this case, we agree with Schoenborn that the evidence should not have been admitted and that the error constituted an abuse of discretion.

The burden of proving that notes reflect a witness's own words rather than the notetaker's characterization falls on the party seeking to introduce the notes. United States v. Almonte, 956 F.2d 27, 29 (2d Cir.1992) (per curiam). A third party's characterization of a witness's statement "does not constitute a prior statement of that witness unless the witness has subscribed to that characterization." Id. See also United States v. Leonardi, 623 F.2d 746, 757 (2d Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3027, 65 L.Ed.2d 1123 and 449 U.S. 884, 101 S.Ct. 236, 66 L.Ed.2d 109 (1980). Regardless of whether or not Rule 803(5)'s other requirements were met, it is clear from the testimony of both Coleman and Staedtler that Coleman did not adopt the agent's report as his own. Coleman testified that he did not tell Staedtler the report was accurate and had refused to sign it for that reason. For his part, Staedtler stated that Coleman told him the report was accurate, yet admitted that Coleman would not sign the report.

We have previously set forth the necessary conditions for admitting a statement of past recollection recorded into evidence:

Where a person perceives an event and reports it to another person who records the statement, both must ordinarily testify to establish that the statement is a past recollection recorded under Rule 803(5). The person who witnessed the event must testify to the accuracy of his oral report to the person who recorded the statement. The recorder must also testify to the accuracy of his transcription. Williams, 951 F.2d at 858.

This assumes, of course, that the witness and the individual who recorded the statement are not at odds over the accuracy of the latter's account. Where the witness differs with the recorder in regard to whether or not the recorder's transcription of the witness's statement is correct, Rule 803(5)'s requirement that the report be made or adopted by the witness has not been satisfied. Compare United States v. Benson, 961 F.2d 707, 709 (8th Cir.1992) ("The two interviews with [the defendant] were not reported verbatim and they were unsigned and unsworn by [him]. Thus, both reports constitute inadmissible double hearsay and should not have been admitted into evidence" under Rule 803(5)) with Porter, 986 F.2d at 1017 (Rule 803(5) satisfied where, among other things, the witness admitted making statement to FBI, had made the statement under penalty of perjury, had signed the statement on every page, and had changed and initialed the wording of the statement several times). What we have said about statements covered by the Jencks Act, 18 U.S.C. Sec. 3500, applies with equal force here:

Whether a document is an original statement made by the witness, ... or a "substantially verbatim" copy ..., the emphasis clearly is on whether the statement can fairly be deemed to reflect fully and without distortion the witness's own words. A government...