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USCA1 Opinion
May 24, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 94-1686
UNITED STATES,
Appellee,
v.
WILLIAM HARRIS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Cyr, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Bownes, Senior Circuit Judge. ____________________
____________________
Juan E. Alvarez-Cobian, Assistant Federal Public Defender, with _______________________
whom Benicio Sanchez Rivera, Federal Public Defender, was on brief for ______________________
appellant.
Sonia I. Torres, Assistant United States Attorney, with whom ________________
Guillermo Gil, United States Attorney, and Jorge E. Vega Pacheco, ______________ ______________________
Assistant United States Attorney, were on brief for appellee.
____________________
____________________
BOWNES, Senior Circuit Judge. In this case we BOWNES, Senior Circuit Judge. _____________________
again confront an issue that arises all too frequently: What
are the consequences when the government violates Fed. R.
Crim. P. 16 by failing to make timely disclosure of evidence
to which defendant is entitled? We find that in this case
there are none . . . except an admonition.
I. I.
Defendant-appellant, William Harris, was indicted,
tried and convicted by a jury for aiding and abetting the
possession of cocaine by another with intent to distribute it
and for aiding and abetting another to import the cocaine
into the United States.1
Federal Rule of Criminal Procedure 16(a)(1) D
provides:
(D) Reports of Examinations and Tests. (D) Reports of Examinations and Tests.
Upon request of a defendant the
government shall permit the defendant to
inspect and copy or photograph any
results or reports of physical or mental
examinations, and of scientific tests or
experiments, or copies thereof, which are
within the possession, custody, or
control of the government, the existence
of which is known, or by the exercise of
due diligence may become known, to the
attorney for the government, and which
are material to the preparation of the
defense or are intended for use by the
government as evidence in chief at the
trial.
____________________
1. The implicated statutes are: 21 U.S.C. 841(a)(1),
952(a) and 18 U.S.C. 2.
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Prior to trial, defendant had requested, pursuant to Fed. R.
Crim. P. 12(d)(2),2 that the government notify him of any
evidence in chief discoverable under Rule 16.
On the first day of trial the government announced
that a chemist would testify the next day as to the tests
made on the cocaine seized and the results of those tests.
There was a prompt objection by defendant to the admission of
the chemist's testimony and laboratory reports. Defense
counsel pointed out that it had moved for information as to
expert witnesses, including chemists, and their reports; that
the motion had been granted by the magistrate; and that,
therefore, the government had violated Fed. R. Crim. P. 16.
Defense counsel argued that because he had not seen the
report until "today" he could not effectively prepare to
cross-examine the chemist the next day because he would need
the help of a chemist to analyze the report. The district
____________________
2. The rule provides:
At the arraignment or as soon thereafter
as is practicable, the defendant may, in
order to afford an opportunity to move to
suppress evidence under subdivision
(b)(3) of this Rule, request notice of
the government's intention to use (in its
evidence in chief at trial) any evidence
which the defendant may be entitled to
discover under Rule 16 subject to any _______
relevant limitation prescribed in Rule ____
16. __
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court observed that counsel had "all evening to read that
report and prepare for the cross-examination."
The prosecutor said the report was not received
from the DEA laboratory until the day trial started, February
14, 1994, and a copy was immediately furnished to defense
counsel. Defense counsel pointed out that the report was
dated January 11, 1994, so that the government, albeit not
the prosecutor, had the report for over a month.
After listening to defense counsel, the court
overruled his objection to the introduction of the testimony
of the DEA chemist and her laboratory report. The court
observed that defense counsel was experienced and had dealt
with these kind of reports "for many years." The court
concluded the hearing on the motion to exclude the evidence
by saying,
You are a good lawyer and you examine
them closely this evening and you will be
ready for tomorrow. That's it.
The next day defense counsel, without waiving his
objection to the introduction of this evidence, stated he was
"willing to stipulate the testimony of the chemist, as to the
fact that the substance was cocaine and the amount and the
purity of that."
Although defense counsel did not explicitly ask for
a continuance, it is evident from the court's remarks that
such a request would not have been granted.
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II. II.
We start our analysis with the compelled finding
that the government violated Federal Rule of Criminal
Procedure 16(a)(1)(D). But this does not automatically mean,
as defense counsel seems to assume, that there must either be
a reversal or a new trial. Unfortunately, such violations do
occur from time to time and a solid body of case law has
developed in this area.
The fundamental rule is that there can be no
reversal for a violation of Fed. R. Crim. P. 16 unless there
is an abuse of discretion by the trial court and prejudice to ___
defendant. "To obtain reversal, the defendant must prove
that the district court abused its discretion which resulted
in prejudice to the defense." United States v. Tajeddini, _____________ _________
996 F.2d 1278, 1287 (1st Cir. 1993). See also United States ___ ____ _____________
v. Sepulveda, 15 F.3d 1161, 1178-89 (1st Cir. 1993), cert. _________ _____
denied, 114 S. Ct. 2714 (1994); United States v. Alvarez, 987 ______ _____________ _______
F.2d 77, 85 (1st Cir.), cert. denied, 114 S. Ct. 147 (1993); _____ ______
United States v. Nickens, 955 F.2d 112, 126 (1st Cir.), cert. _____________ _______ _____
denied, 113 S. Ct. 108 (1992); United States v. Caudill, 915 ______ _____________ _______
F.2d 294, 299 (7th Cir. 1990).
Although an argument can be made that there was an
abuse of discretion here, we need not consider that question
at all. There can be no doubt that defendant has utterly
failed to show any prejudice. We have no way of knowing how
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the laboratory report could have prejudiced defendant.
Defendant's only argument is that he was denied the time
necessary to go over the report and prepare for cross-
examination. But unless the report was inaccurate in some
important respect, cross-examination would have been a futile
gesture. Moreover, defendant had plenty of time to have a
chemist of his own choice examine the report between the
verdict and sentencing. Any flaws in it could have been
brought to the attention of the court and subsequently to us
on appeal. This was not done. Although there was a
violation of Rule 16, there was no showing of prejudice. See ___
United States v. Mack, 892 F.2d 134, 136 (1st Cir. 1989), _____________ ____
cert. denied, 498 U.S. 859 (1990). The judgment below must _____ ______
be Affirmed. Affirmed ________
We add a postscript. The United States Attorney
has a continuing obligation to see to it that the Federal
Rules of Criminal Procedure are followed. Here a laboratory
report that was an essential element of the government's
proof and clearly subject to the disclosure requirements of
Rule 16 was completed more than thirty days prior to the
start of trial. For some unexplained reason it sat in the
DEA office in Miami, Florida, until trial started. The
United States Attorney had the primary duty to obtain the
report so that it could be timely disclosed to defendant.
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Document Info
Docket Number： 94-1686
Filed Date： 5/24/1995
Precedential Status： Precedential
Modified Date： 9/21/2015