United States v. Scott Todd Noe, Meridith Rogers ( 1987 )

KRAVITCH, Circuit Judge:

Codefendants S. Todd Noe and Meredith Rogers were convicted after a jury trial of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and of distribution of methamphetamine in violation of 21 U.S.C. § 841.¹ Noe appeals his convictions primarily on the ground that the trial court improperly admitted into evidence on rebuttal a tape recording of a telephone conversation between an undercover drug agent and an individual identified by the agent as Noe. Noe contends that admission of the tape constitutes reversible error due to the government’s failure to provide the tape in response to Noe’s pre-trial discovery request filed pursuant to Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure. Rogers does not appeal her distribution conviction, but challenges her conspiracy conviction as unsupported by the evidence and as based upon an erroneous jury instruction. We reverse Noe’s convictions due to the discovery violation, but affirm Rogers’ conspiracy conviction.

I. BACKGROUND

The government’s case against both co-defendants rested largely on testimony of two undercover agents of the federal Drug Enforcement Administration (DEA). The agents testified that several times during the span of a week they met Noe, whom they knew as “Scott,” at various Atlanta nightspots to discuss the possibility of Noe’s assisting them in establishing a clandestine methamphetamine laboratory. They testified that at one of the early meetings they requested a sample of methamphetamine, and that Noe subsequently instructed one of them to retrieve an eyeglass case that was lying on the table at which Noe and the agent were sitting. The case was found to contain methamphetamine. One agent testified that he inspected the contents of the case and then paid Noe $1,000. The agents further testified that the next day they asked Noe for another sample and for a list of equipment and chemicals needed to set up a methamphetamine laboratory. According to their testimony, Noe informed them a day later that they should get the sample and list from “Meredith,” referring to appellant Rogers. The agents were familiar with Rogers through another, unrelated undercover investigation they were then conducting.

The agents met with Rogers the following day. After stating that she had something for them from “Scott”, Rogers handed them an envelope containing a methamphetamine sample and a list of materials. According to the agents, Rogers remarked that she hoped the quantity of the sample was sufficient, explaining: “ ‘I had to cut it out of a chunk____ Scott keeps all of his money and marijuana and stuff at my house when he is in town.’ ” The agents testified that when they asked Rogers whether “Scott” could be trusted in the arrangement they were negotiating, she replied that she did not know the details of their transactions, but that “Scott” was ‘“good at what he does.’” The agents testified that their dealings with Noe and Rogers ended at Noe’s insistence after Rogers noticed one of the agents following her in traffic.

Testifying in his defense, Noe denied that he was involved in any of the events recounted by the agents or that he had ever spoken with the agents. He contended that he was visiting with family in Costa Rica during the entire time that the events were alleged to have taken place. In support of this testimony, Noe introduced into evidence a passenger receipt for a round-trip airline ticket to Costa Rica reserved in his name. Noe attempted to introduce other evidence to support his contentions, but the court ruled the evidence inadmissible.²

On rebuttal, the government offered into evidence a tape recording of a telephone conversation in which one of the undercover DEA agents and a man identified by the agent as Noe agreed to meet the next day at an Atlanta bar. According to the agents, the date of the tape corresponded to the time during which Noe claimed that he was in Costa Rica. Noe objected to admission of the recording on the ground that the government had failed to provide him the tape before trial despite his timely request, pursuant to Rulev 16(a)(1)(A) of the Federal Rules of Criminal Procedure, for all statements of the defendant. Although conceding that the tape should have been provided to Noe, the government asserted that the failure to do so was inadvertent. The district court admitted the recording into evidence.

II. NOE

In challenging admission into evidence of the taped telephone conversation, Noe relies primarily on United States v. Rodriguez, 799 F.2d 649 (11th Cir.1986) (per curiam). In Rodriguez, a panel of this court reversed a conviction where the government, in violation of Fed.R.Crim.P. 16(a)(1)(C), failed to disclose to the defendant materials that officers had taken from the defendant’s wallet after his arrest. 799 F.2d at 652. The Rodriguez court concluded that this discovery violation substantially prejudiced the defendant’s rights when, in cross-examining the defendant concerning his denial that he maintained contacts in Colombia, the government attorney referred to names and telephone numbers that were found in the wallet. Id. at 653. The court reasoned that “[b]y failing to turn over for discovery what it told the jury were his personal papers, the government deprived [the defendant] of any chance to prepare his case to meet that evidence.” Id.

The government urges that Rodriguez does not compel reversal of Noe’s convictions. Under Rodriguez, a violation by the government of the criminal discovery rules warrants reversal of a conviction only if the defendant shows prejudice to substantial rights. Moreover, Rodriguez recognized that the existence of “actual prejudice will often turn on the strength of the government’s case.” Id. at 652. The government argues that here, in contrast to the relatively weak, largely circumstantial evidence presented in Rodriguez, the case against Noe was based on the extensive direct testimony of the two undercover DEA agents. Furthermore, Noe’s alibi defense was largely uncorroborated. Thus, according to the government, to permit Noe to “fabricate” an unsupported alibi story to conform to the prosecution’s evidence, without permitting the government full opportunity to rebut, would result in a miscarriage of justice.

The government’s arguments, however, misconstrue both the purpose of the criminal discovery rules and the concept of actual prejudice resulting from violations of those rules by the government. As the Rodriguez court noted, the purpose of Rule 16(a) is “to protect the defendant’s rights to a fair trial.” Id. at 654. And, contrary to the government’s contentions, the degree to which those rights suffer as a result of a discovery violation is determined not simply by weighing all the evidence introduced, but rather by considering how the violation affected the defendant’s ability to present a defense. See United States v. Pascual, 606 F.2d 561, 565-66 (5th Cir.1979)³; United States v. Padrone, 406 F.2d 560, 561 (2d Cir.1969) (per curiam). Where the government at trial introduces undisclosed evidence that tends to undermine one aspect of the defense — as occurred in Rodriguez — the existence of actual prejudice often will turn on the strength of the remaining elements of the government’s case. Here, however, the government introduced evidence that attacked the very foundation of the defense strategy. As the Rodriguez court observed, the failure of the government to disclose “ ‘statements] made by the defendant is so serious a detriment to the preparation for trial and the defense of serious criminal charges that where it is apparent, as here, that [the] defense strategy may have been determined by the failure to [disclose], there should be a new trial.’ ” 799 F.2d at 651 (quoting Padrone, 406 F.2d at 561).⁴

Under the theory advanced by the government, the prosecution, by design or inadvertence, could withhold discoverable inculpatory evidence until the defendant asserted a defense strategy based on the apparent nonexistence of that evidence, thus foreclosing other, possibly viable, defense strategies. Unless a court concluded, based on all the evidence introduced, that the case against the defendant was “not strong,” the discovery violation would be considered harmless. We refuse to adopt such a rule, for it would encourage precisely the “trial by ambush” that the Federal Rules of Criminal Procedure were designed to prevent. See United States v. Martinez, 763 F.2d 1297, 1315 (11th Cir. 1985).

The government’s appeals to “justice” to uphold Noe’s guilty verdicts are misplaced. Although Noe certainly does not have a right to “fabricate” an alibi story, the Federal Rules of Criminal Procedure provide him a right to discover all statements that he made to law enforcement officials, and, correspondingly, to devise a defense strategy on the basis of the evidence disclosed.⁵ The same rules permit the government to demand any alibi defense a defendant intends to assert. Fed.R.Crim.P. 12(a). Had the government either complied fully with Noe’s discovery request or availed itself of its authority to demand the details of any alibi story, it would not now be before this court invoking vague notions of justice. Likewise, had Noe been aware of the tape recording prior to trial, his counsel “might well have advised [him] not to take the stand.” Padrone, 406 F.2d at 561. The government, however, failed to comply with Noe’s discovery request and did not disclose the tape recording until after Noe had developed and implemented his trial strategy. Consequently, the government cannot now claim that the discovery violation was harmless. In United States v. Pascual, supra, our predecessor court was confronted with a situation in which the government had introduced into evidence a previously undisclosed letter which directly incriminated two codefendants. The government there apparently argued, as it does here, that the discovery violation did not prejudice the defendants’ substantial rights because the evidence overwhelmingly demonstrated their guilt. The court stated:

It would be hard to make an argument with any degree of plausibility that the use of this letter without prior production did not seriously prejudice the defendants in exercising their option to plead not guilty and in their preparation for trial.

[The undisclosed letter] was a written plea of guilty to the allegations contained in the indictment.

A new trial with this nail in the coffin lid, now fully disclosed, may likely result in another verdict of guilty. Nevertheless, the vindication of Rule 16, and notice to prosecutors in this Circuit that they must effectively comply with it, leaves no choice but to reverse the convictions and remand for a new trial.

606 F.2d at 565-66. We have no choice here but to do the same.⁶

III. ROGERS

In appealing her conspiracy conviction, Rogers contends that the verdict was based upon an erroneous instruction to the jury and that it was unsupported by evidence. We reject both claims.

Rogers requested that the court instruct the jury not to consider the statements of one codefendant against the other unless the jury first found that the government had shown beyond a reasonable doubt the existence of a conspiracy. This requested instruction, however, is contrary to the law of this circuit. Rule 801(d)(2)(E) of the Federal Rules of Evidence permits an extrajudicial statement of one coconspirator to be considered as evidence against another coconspirator only if the trial court first determines that the prosecution has shown, by a preponderance of the evidence independent of the extrajudicial statement: “(1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the coconspirator’s statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy.” United States v. James, 590 F.2d 575, 583 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Contrary to Rogers’ proposed instruction, however, the rule does not further require that the jury make an independent determination of the existence of a conspiracy before it may consider the extrajudicial statements of coconspirators admitted into evidence. See United States v. Monaco, 702 F.2d 860, 878 (11th Cir.1983).⁷ Because the instruction requested by Rogers was not a substantially correct statement of the law, the refusal of the court to give that instruction cannot constitute reversible error. See, e.g., United States v. Lopez, 758 F.2d 1517, 1521 (11th Cir.1985) (failure to give requested charge warrants reversal only if the requested instruction was substantially correct and was not addressed in the charge actually given, and if its omission seriously impaired the presentation of an effective defense), cert. denied, — U.S. —, 106 S.Ct. 789, 88 L.Ed.2d 767 (1986).

We also reject Rogers’ claim that the evidence was insufficient to support her conspiracy conviction. Rogers argues that the government introduced no evidence connecting her to Noe’s alleged scheme to manufacture methamphetamine. Yet neither the conspiracy indictment nor the government’s presentation of its case depended upon any direct link between Rogers and the manufacturing scheme. Rather, the indictment charged that Rogers conspired to distribute methamphetamine. As the government argued at trial and on appeal, Rogers could be found guilty of such a conspiracy if she conspired with another to make only the single distribution of methamphetamine to the undercover agents.

Viewing, as we must, the evidence in the light most favorable to the government, e.g., United States v. Brooks, 703 F.2d 1273, 1277 (11th Cir.1983), we conclude that there was substantial evidence to support the jury’s finding that Rogers conspired to distribute methamphetamine. The agents testified that Rogers told them not only that the envelope containing the methamphetamine sample came from “Scott,” but also that she herself had cut the sample from a “chunk.” The jury thus had sufficient evidence from which to find that Rogers agreed with someone else to forward the methamphetamine to the agents and from which to infer that Rogers was aware at least that the material was contraband. Rogers’ conspiracy conviction, consequently, must be affirmed.

IV. CONCLUSION

Based on the foregoing analysis, the convictions of appellant Noe are REVERSED; the convictions of appellant Rogers are AFFIRMED.

1 . Noe was charged and convicted of two counts of distribution; Rogers was charged and convicted of only one distribution count.

2 . On appeal, Noe asserts that the district court committed reversible error in refusing to admit his passport into evidence. Noe urges that the entries contained in the passport would have further corroborated his alibi story. Because of our resolution of Noe’s Rule 16 violation, we need not consider his evidentiary claim.

3 . The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.

4 . The dissent apparently rejects this statement by the Rodriguez court as "non-binding dicta of this circuit” because it suggests an approach— and requires a result — that the dissent considers "mistaken.” See infra at 611 n. 3. Although the dissent may disapprove of its implications, this statement by the Rodriguez court can hardly be discounted as "non-binding dicta,” for it was central to that court’s conclusion that the purpose of Rule 16 is to "protect the defendant’s right to a fair trial.” 799 F.2d at 654. This understanding of the purpose of Rule 16 was the principal basis for the holding of Rodriguez, and it compels the result of this case. Moreover, the Rodriguez court’s statement of the purpose of Rule 16 was fully supported by prior decisions of this court and its predecessor court. See, e.g., United States v. Pascual, 606 F.2d 561, 565-66 (5th Cir.1979); see also United States v. Martinez, 763 F.2d 1297, 1315 (11th Cir.1985) ("[T]his was not a case in which the prosecutor has ... hidden from discovery a statement of the defendant only to spring it on him in the middle of a trial. We condemn that sort of tactic."); United States v. Arcentales, 532 F.2d 1046, 1050 (5th Cir.1976) (finding no prejudice in discovery violation because "the inculpatory statement became known during the government’s case-in- chief’ and not after ”[t]he government [had been] lying in wait with statements that could impeach the Defendant if he decided to testify"). Consequently, even were we to agree with the dissent that Rodriguez and prior cases of this court were mistaken as a matter of "judicial policy,” this panel nevertheless would be bound by their precedent absent an intervening decision by the Supreme Court or by the en banc court of this circuit. E.g., Flowers v. United States, 764 F.2d 759, 761 (11th Cir.1985); see also Bonner v. City of Prichard, supra.

Nor can the dissent escape the binding effect of Rodriguez by distinguishing its facts. Contrary to the dissent’s reconstruction of Noe’s arguments, Noe does not contend that the discovery violation gave him insufficient time to prepare a challenge to the authenticity of the recording. Rather, he claims that the government’s use of the undisclosed evidence for impeachment purposes denied him the opportunity to "prepare his case to meet [the government’s] evidence," Rodriguez, 799 F.2d at 653, and infringed his Fifth Amendment right not to testify. Once Noe had prepared his trial strategy and elected to testify, no amount of additional preparation time could have cured the effects of the government’s use of previously undisclosed evidence. His failure to request a continuance thus is irrelevant. Similarly, given that the use of the undisclosed evidence for impeachment purposes denied Noe the opportunity to prepare his defense to meet the government’s evidence, any distinction between the recording at issue here and the tangible evidence at issue in Rodriguez also is irrelevant. Underlying the dissent’s conclusion that Noe did not suffer prejudice to substantial rights is the assumption that the right to prepare a defense to meet the prosecution’s evidence is not itself substantial. This assumption, however, is flatly contradicted by our precedents, as is the dissent’s contention that Noe’s rights were not prejudiced because the tape was "devastating” to his defense. See Rodriguez, supra; Pascual, supra.

5 . In certain situations where undisclosed evidence is offered to rebut perjured alibi testimony, a mistrial might be the appropriate remedy.

6 . Noe claims that because his alibi defense now “has lost the element of surprise," he is entitled to an acquittal as a result of the discovery violation. He offers no legal support for this proposition, and we dismiss it as without merit. We similarly reject the government’s contention that Noe waived his right to a reversal by failing to move for a mistrial in addition to objecting to the introduction of the tape recording. An objection properly preserves an evidentiary ruling for appellate review. Cf. Saunders v. Chatham County Bd. of Comm'rs, 728 F.2d 1367, 1368 (11th Cir.1984) ("[C]ounsel cannot remain silent at trial and then contend that evidentiary rulings require reversal.”).

7 . The requested instruction further misstated the applicable law by suggesting that a conspiracy could not be found absent an overt act in furtherance of the conspiracy. When the charge involves a drug conspiracy in violation of 21 U.S.C. § 846, the government is not required to prove an overt act. E.g., United States v. Alberti, 727 F.2d 1055, 1060 (11th Cir.1984).