United States v. Carl John Manthei

VAN SÍCKLE, Senior District Judge.

The government has appealed an order of the district court dismissing an indictment. The dismissal was ordered because the government delayed disclosure of an informer’s tape recorded conversations.' The trial judge had previously found the tape was discoverable under Fed.R.Crim.P. 16(a)(1)(A) (applicable in 1990).

We reverse.

I. BACKGROUND

On April 3, 1991 Carl Manthei was charged in a two count indictment which alleged that Manthei had knowingly and intentionally distributed a controlled substance to a fellow United States postal employee on two occasions. Count I of the indictment alleged that on September 30, 1990 Manthei sold approximately one ounce of marijuana to Mr. James Frye, a government informer. This transaction was not tape recorded. Count II alleged a second transaction which took place on October 18, 1990 involving the sale of a controlled substance to Frye. For this transaction a recording device was placed on Frye. Between the time the recorder was turned on and the alleged transaction took place, Frye had a conversation, in the absence of Manthei, with another postal employee, “Paul”, who was suspected by postal inspectors of engaging in drug trafficking. The entire tape recording, including both discussions, was transcribed. The government provided a transcript to Manthei with the conversation between the government informer and “Paul” intentionally removed. In the process of removing those statements, which were not of Manthei, the government omitted the initial obscene greeting between Frye and Manthei.¹

Manthei was arraigned on April 8, 1991, before United States Magistrate Judge Floyd E. Boline who ordered the government to provide all Rule 16 material to Manthei. On September 13, 1991, ten days before trial, the government disclosed the remaining pages to Manthei. On September 16, 1991, Manthei filed a motion and accompanying memorandum arguing for dismissal of the indictment. Manthei argued that the conversation between “Paul” and Frye should have been disclosed as “statements of the defendant” as provided by Rule 16.

II. DISCUSSION

A. Standard of review

The deleted material mainly concerned a conversation between Frye and “Paul”. However,, a small portion of the redacted material contained a greeting between Manthei and Frye. The two materials must be reviewed under different standards of review.

The question, concerning the conversation between Frye and “Paul”, is not whether Rule 16 was applied properly; the question is whether Rule 16 should have been applied at all. The language of Rule 16 clearly states that only statements of the defendant are discoverable. See infra § IIB. Since application of Rule 16 depends on the factual determination of whether the statement was a “statement of the defendant”, the standard of review as to this question should be the clearly erroneous standard. See Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988) (clearly erroneous standard of review for factual determinations).

In United States v. Tibesar, this court held that the standard of review of a violation of Rule 16 of the Federal Rules of Criminal Procedure is an abuse of discretion. 894 F.2d 317, 319 (8th Cir.1990). This would be the proper standard to review the redacted greeting between Man-thei and Frye.

B. Third Party Statements

1. Plain Meaning

Manthei alleges that the conversation between “Paul” and Frye was discoverable in accordance with Fed.R.Crim.P. 16(a)(1)(A) (applicable in 1990). This rule describes the information subject to disclosure as follows:

(a) Disclosure of Evidence by the Government.

(1) Information Subject to Disclosure.

(A) Statement of Defendant.

Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, 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; the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent; and recorded testimony of the defendant before a grand jury which relates to the offense charged.

[Effective until Dec. 1, 1991] (emphasis added). When interpreting statutory language, the court must first look to the plain meaning of the language. North Dakota v. United States, 460 U.S. 300, 312-13, 103 S.Ct. 1095, 1102-03, 75 L.Ed.2d 77 (1983). The language of Rule 16 is clear. It stresses that only “statements made by the defendant” are discoverable.

This court addressed the scope of Rule 16 in discovery matters in United States v. Hoelscher, 914 F.2d 1527 (8th Cir.1990). “This rule does not cover testimony by a government witness as to an oral statement by a conspirator in the course of the conspiracy. It covers oral statements made by defendant ‘in response to interrogation by any person then known to the defendant to be a government agent.’ ” Id. at 1535 (quoting United States v. Vitale, 728 F.2d 1090, 1093-94 (8th Cir.1984) (emphasis added)). Since this court has refused to expand Rule 16 to include the statements of a co-conspirator, which is at least admissible non-hearsay, the court will not expand the rule to include statements by an unrelated suspect. See Fed.R.Evid. 801(d)(2)(E) (hearsay exclusion for co-eon-spirator). Therefore, it was clear error to include the statements of Frye and “Paul” in the Rule 16 discovery ruling.

2. Prosecutorial Misconduct

“Because the drastic step of dismissing an indictment is a disfavored remedy, ... a district court may properly dismiss an' indictment only if the prosecutorial misconduct (1) was flagrant, ... and (2) caused substantial prejudice to the defendant.” United States v. Jacobs, 855 F.2d 652, 655 (9th Cir.1988) (citing United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir.1985), and United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir.1986)). “In short, absent flagrant and prejudicial prosecutorial misconduct, this court will find that the district court’s dismissal of an indictment is an abuse of its discretion.” Jacobs, 855 F.2d at 655. Thé Supreme Court, in addressing governmental misconduct, held “[a]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.” United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981).

This court addressed the question of prosecutorial misconduct in the form of delayed disclosure of statements by the defendant, in United States v. Barnes, 798 F.2d 283 (8th Cir.1986). In that case, tape recordings were supplied by the FBI agent, Hicks, twelve days before trial, after the court had denied a motion to dismiss for failure to produce them. Id. at 286. The court stated that

Hicks’ delay in giving Barnes the tapes and Hicks’ pretrial misrepresentations regarding the tapes do not warrant a dismissal of the charges against Barnes.... We merely hold that his conduct does not warrant the severe sanction of dismissal based on the evidence adduced to date.

Id. at 287. In this case, thé prosecutorial misconduct, though not condoned, is not enough to warrant a dismissal of the indictment. Therefore, the trial court abused its discretion by dismissing the indictment for failing to include the greeting between Manthei and Frye.

C. Manthei’s One Word Statement

Manthei’s only statement was “No” as part of the greeting. See supra footnote 1. The proper standard of reviewing the trial court’s decision concerning the excluded statements of a defendant is to determine whether the trial court abused its discretion. United States v. Tibesar, 894 F.2d 317, 319 (8th Cir.1990). In no way can the answer “No” in the obscene greeting between Frye and Manthei be construed to be an exculpatory statement. Therefore, it is an abuse of discretion to dismiss for failure to disclose the statement “No.”

D. Brady Violation

Furthermore, Manthei cannot claim a violation of due process in accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Eighth Circuit has held that Brady is only violated if evidence is discovered, after the trial, of information which had been known to the prosecution but unknown to the defense. Nassar v. Sissel, 792 F.2d 119, 121 (8th Cir.1986). In this case, Manthei learned of the remaining parts of the transcript before trial began.

Even if Brady was found to be violated the Supreme Court holds that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Even if the redacted portions of the tape recording were never supplied, they are not material to the issues and would not have altered the outcome. The Ninth Circuit has held that tape recordings that did not “tend to exculpate” the defendant, did not violate Brady. United States v. McClintock, 748 F.2d 1278, 1287 (9th Cir.1984) (citing Brady, 373 U.S. at 88, 83 S.Ct. at 1197).

For these reasons, we reverse and remand the case for reinstatement of the indictment for trial.

1 . The greeting between Frye and Manthei was transcribed as follows:

“Informant: Hey, (Deleted), lets go, (Deleted) you think I got all day or what, [sic]

C. Manthei: No, ...”

(Transcript of October 18, 1990 Tape Recording).