United States v. Denise Robertson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10385
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-01466-
JJT-1
DENISE ROBERTSON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted January 8, 2018
San Francisco, California
Filed July 20, 2018
Before: J. Clifford Wallace, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Wallace
2 UNITED STATES V. ROBERTSON
SUMMARY *
Criminal Law
The panel affirmed convictions for theft of mail by a
postal employee in violation of 18 U.S.C. § 1709, and
possession of stolen mail in violation of 18 U.S.C. § 1708.
The panel held that the district court did not err in
denying the defendant’s motion to dismiss the indictment on
due process grounds based on the government’s failure to
preserve a video of a Postal Service employee parking lot.
The panel held that the district court’s finding that the
investigating agent did not act in bad faith was not clearly
erroneous, and that the exculpatory value of the video was
speculative.
The panel held that the district court did not abuse its
discretion by failing to instruct the jury on lost or destroyed
evidence as a sanction for the government’s failure to
preserve the parking lot video.
The panel held that the district court did not abuse its
discretion in ruling that a conversation between the
prosecutor and two investigating agents outside the
courtroom did not violate Fed. R. Evid. 615, which provides
that, at a party’s request, the court must order witnesses
excluded so that they cannot hear other witnesses’
testimony. Addressing an open question, the panel held that
Rule 615 prohibits a sequestered witness from not only
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. ROBERTSON 3
attending a hearing or trial, but reading transcripts from it.
The panel held that the district court acted within its
discretion by determining that the appropriate sanction for
the government’s allowing two agent witnesses to review
transcripts of prior testimony was to allow the defense to
cross-examine the witnesses about their exposure to the
transcripts.
The panel held that the district court did not abuse its
discretion in denying the defendant’s request for production
of an agent’s notes under the Jencks Act. The panel clarified
that unless a defendant makes a threshold showing that notes
sought pursuant to the Jencks Act may qualify as a
“statement” under the Act, the district court is not obligated
to review the notes in camera before refusing to compel
production. The panel concluded that the defendant did not
make that threshold showing.
The panel rejected the defendant’s argument that the
district court’s disjunctive jury instruction on embezzlement
of mail by a postal employee – which allowed the jury to
convict her solely on a finding that “she came into
possession” of the mail, rather than a showing of both
entrustment and possession – was plain error. The panel
explained that the jury instruction tracked the language of
section 1709, and that the government may charge in the
conjunctive and prove in the disjunctive.
4 UNITED STATES V. ROBERTSON
COUNSEL
Celia Rumann (argued), Tempe, Arizona, for Defendant-
Appellant.
Peter S. Kozinets (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A.
Strange, Acting United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.
OPINION
WALLACE, Circuit Judge:
Denise Robertson, a former letter carrier for the United
States Postal Service, appeals from her jury convictions for
theft of mail by a postal employee in violation of 18 U.S.C.
§ 1709, and for possession of stolen mail in violation of
18 U.S.C. § 1708. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
I.
The United States Postal Service (USPS) is charged with
providing secure and reliable delivery of the mails to “bind
the Nation together” through the “correspondence of the
people.” 39 U.S.C. § 101. Robertson worked as a USPS
letter carrier assigned to the USPS Arcadia Station in
Phoenix, Arizona.
This case began when the USPS Office of the Inspector
General (OIG) began receiving complaints from customers
in the Phoenix area concerning gift cards that were mailed
but never reached the intended recipients. In June 2014,
USPS OIG Agent Patrick Longton investigated these
UNITED STATES V. ROBERTSON 5
complaints, and determined that Robertson might have been
involved. Longton came to this conclusion based on
evidence that (1) the missing gift cards were used by
Robertson’s adult daughter Melissa, who lived with
Robertson, and (2) the letters containing the gift cards had
been routed through the Arcadia Station on days Robertson
was on duty.
His suspicion piqued, Agent Longton decided to begin
surveillance of Robertson as she performed her duties at the
Arcadia Station. On the morning of June 26, 2014, from a
concealed walkway inside the post office, Agent Longton
observed Robertson remove two greeting card-type letters
from a tray of mail not assigned to her route, and place those
letters with mail marked for her route. After Robertson left
to deliver her route, OIG agents arranged for the station
supervisor to place several “test letters” in the collection
hamper near Robertson’s work station. Test letters are
purportedly “real” letters used by the OIG to test the integrity
of suspected postal employees.
Upon Robertson’s return from her route, OIG agents
made a video recording of her on the work floor. The video
shows Robertson walk to and look through the collection
hamper for outgoing mail on three different occasions,
during which she removed several greeting card-type letters,
including some of the OIG test letters. The video shows
Robertson carry the letters back to her work station, bundle
them, place the bundles in a large purse, and cover the
opening of the large purse with a smaller purse. Shortly after
Robertson’s third trip to the collection hamper, OIG agents
left their concealed station, found Robertson on the work
floor, and arrested her. They did not apply handcuffs.
After arresting Robertson, the agents asked her to bring
her belongings to the station manager’s office. Robertson
6 UNITED STATES V. ROBERTSON
brought her purse into the office on a plastic mail tray and
placed the tray and her purse on a postal cart against the wall.
Robertson declined to be interviewed, but consented to a
search of her purse. Agent Longton and another agent
searched Robertson’s purse, but found no mail. Agents also
searched the work floor for the missing bundles, to no avail.
After the search, Robertson was released, and her vehicle,
which was parked in the employee parking lot, was secured
as evidence.
That night, Agent Longton and other OIG agents took
shifts surveilling Robertson’s car until they could obtain a
warrant to search it. During his shift, Agent Longton briefly
returned to the station manager’s office to retrieve
Robertson’s purse. After a quick search of the office, he
found two bundles of mail at the bottom of the hamper of the
postal cart on which Robertson had placed her purse earlier
that day. The recovered mail consisted of more than
20 greeting card-type letters, including some of the OIG test
letters.
The next day, June 27, 2014, OIG agents executed a
search warrant on Robertson’s car, recovering 52 pieces of
mail. Much of the recovered mail was postmarked June 25,
2014 and was scheduled for delivery on Robertson’s route
on June 26. The recovered mail also included a test letter that
agents had placed in a neighborhood collection box on
Robertson’s route the previous day.
II.
On November 5, 2014, a grand jury indicted Robertson
on seven counts of theft of mail by a postal employee under
18 U.S.C. § 1709, and seven counts of possession of stolen
mail under 18 U.S.C. § 1708. Prior to trial, Robertson moved
to dismiss the indictment, arguing that Agent Longton failed
UNITED STATES V. ROBERTSON 7
to preserve security camera footage of the Arcadia Station
employee parking lot from the day of her arrest. Robertson
asserted this video footage “would have exonerated [her]
completely.” The district court denied the motion after an
evidentiary hearing, finding no bad faith on the part of the
government.
The trial began on October 27, 2015, and lasted for
13 days. Robertson’s defense was that Agent Longton was
not a credible witness; that it would have been nearly
impossible for her to remove mail from her purse and drop
it into the postal cart while in the presence of OIG agents
after her arrest; and that the evidence was insufficient to
prove that the mail Robertson was alleged to have embezzled
was sorted or processed at the Arcadia Station at a time
Robertson was at the station.
During the trial, Robertson requested a jury instruction
on lost or destroyed evidence based on the government’s
failure to preserve the parking lot video. The district court
denied the request. Later during the trial, Robertson
requested production of Agent Longton’s notes from his
initial conversation with a customer who reported one of the
missing gift cards. The district court denied that request as
well.
The jury convicted Robertson on all counts. The district
court sentenced Robertson to concurrent terms of nine
months of imprisonment on each count, followed by three
years of supervised release. The district court also ordered
Robertson to pay a special assessment and restitution.
Robertson timely appealed.
8 UNITED STATES V. ROBERTSON
III.
Robertson argues we should reverse her convictions on
the following grounds: (1) the district court erred in denying
her motion to dismiss the indictment; (2) the district court
abused its discretion by failing to give a jury instruction on
lost or destroyed evidence; (3) the district court erred in not
imposing an appropriate sanction for the government’s
violation of the court’s witness exclusion orders; (4) the
district court abused its discretion by not compelling
production of Agent Longton’s notes under the Jencks Act,
18 U.S.C. § 3500; and (5) the district court’s jury instruction
on theft of mail by a postal employee misstated the law. We
address these arguments in turn.
A.
We begin with Robertson’s argument that the district
court erred in not dismissing the indictment on due process
grounds for the government’s failure to preserve video of the
employee parking lot. The district court denied Robertson’s
motion on the ground that the government did not act in bad
faith, and that the exculpatory value of the video was
speculative. Robertson contends the parking lot video, which
was erased as part of an automatic 30-day deletion process,
would have “conclusively shown” who had access to her
vehicle the day she was arrested.
“We review de novo a due process claim involving the
government’s failure to preserve potentially exculpatory
evidence.” United States v. Flyer, 633 F.3d 911, 915–16 (9th
Cir. 2011). “We review factual findings, such as the absence
of bad faith, for clear error.” Id. at 916.
The government’s failure to preserve potentially
exculpatory evidence rises to the level of a due process
UNITED STATES V. ROBERTSON 9
violation only if the defendant shows that the government
acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58
(1988). “The presence or absence of bad faith turns on the
government’s knowledge of the apparent exculpatory value
of the evidence at the time it was lost or destroyed, because
without knowledge of the potential usefulness of the
evidence, the evidence could not have been destroyed in bad
faith.” United States v. Zaragoza-Moreira, 780 F.3d 971,
977 (9th Cir. 2015).
The district court’s finding that Agent Longton did not
act in bad faith was not clearly erroneous. Although Longton
was made aware of the possible existence of the parking lot
video, the record does not show he had knowledge of the
video’s apparent exculpatory value at the time it was deleted,
or that he knew of the automatic 30-day deletion process.
Longton testified that by the time he contacted the agency
responsible for the station’s external security cameras, the
parking lot video had been deleted as part that agency’s
normal procedures without him having viewed it. In
addition, the record supports a finding that the exculpatory
value of the parking lot video was speculative—Longton
testified that while the relevant security camera could show
in general where Robertson’s car was parked, it offered only
a partial view that would not have shown someone gaining
access to the trunk and, in any event, would not have allowed
conclusive identification of any specific individual seen on
camera. On this record, the district court did not clearly err
in finding Agent Longton did not act in bad faith. See United
States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013)
(holding that the government did not act in bad faith in
failing to preserve evidence when the exculpatory value of
the evidence “was not obvious”); Cunningham v. City of
Wenatchee, 345 F.3d 802, 812 (9th Cir. 2003) (concluding
that a detective’s failure to gather potentially exculpatory
10 UNITED STATES V. ROBERTSON
evidence did not show bad faith where the value of the
evidence was “speculative”).
Robertson argues that Agent Longton’s conduct—that is,
his failure to obtain immediately the parking lot video as
soon as he was put on notice of its potential existence—is
itself sufficient to compel a bad faith finding. We disagree.
Longton testified he learned about the possibility of the
parking lot video when he saw it mentioned as part of the
postal union’s grievance against USPS management on
Robertson’s behalf. Neither Robertson nor her counsel wrote
to the OIG or to the government to preserve the video. Nor
did the union’s request explain how or why the parking lot
video might contain exculpatory evidence. At most, Longton
was slow to obtain evidence of speculative value of which
he had been indirectly put on notice. This is insufficient to
establish that Longton made “a conscious effort to suppress
exculpatory evidence” such that bad faith can be inferred
from his conduct alone. Zaragoza-Moreira, 780 F.3d at 980,
quoting California v. Trombetta, 467 U.S. 479, 488 (1984).
Robertson also argues the district court’s failure to find
bad faith contravenes our decision in Zaragoza-Moreira. In
that case, the defendant was arrested by border patrol
officers while standing in a pedestrian line for admission into
the United States after a pat down search led to the discovery
of drugs on her person. 780 F.3d at 974–75. During the
interview following her arrest, the defendant asserted she
was coerced into carrying the drugs, and that while standing
in the pedestrian line she tried to draw the attention of law
enforcement by making noise and moving around. Id. at
975–76. Despite defendant’s claim of duress, and her
insistence that her actions while standing in line supported
her claim, the agent who interviewed the defendant did not
preserve video of the pedestrian line. Id. at 976–77. We
UNITED STATES V. ROBERTSON 11
concluded that the district court clearly erred in not finding
bad faith under these circumstances, explaining that “[f]rom
the beginning to the end of Agent Alvarado’s hour-long
interview with Zaragoza, Zaragoza repeatedly alerted
Alvarado to her duress claim and the potential usefulness of
the pedestrian line video footage.” Id. at 979.
The instant case is distinguishable from Zaragoza-
Moreira. In Zaragoza-Moreira there was no dispute about
the potential value of the unpreserved video evidence. The
agent in that case knew at the time she interviewed the
defendant that the pedestrian line was under constant video
surveillance and that the video was directly relevant to
defendant’s claim of duress. The government did not argue
that the video would not show whether defendant was
“making a lot of noises” and making herself “obvious,” as
she asserted. Id. at 978. By contrast, in this case, it is
completely speculative whether the parking lot video was
potentially useful to Robertson’s defense. As mentioned
above, Agent Longton testified that the relevant security
camera did not offer an unobstructed view of Robertson’s
car, and that it would not have been possible to identify
specific individuals seen on the video. In addition, unlike the
defendant in Zaragoza-Moreira, neither Robertson nor the
union made any affirmative assertion that would have put
Agent Longton on notice of the relevance of the video to
Robertson’s defense. Therefore, compared to the video at
issue in Zaragoza-Moreira, the exculpatory value of the
video here was almost entirely speculative. Robertson’s
reliance on Zaragoza-Moreira is unavailing.
The district court did not err in denying Robertson’s
motion to dismiss the indictment.
12 UNITED STATES V. ROBERTSON
B.
Robertson next argues the district court committed
reversible error by failing to instruct the jury on lost or
destroyed evidence as a sanction for the government’s
failure to preserve the parking lot video. “We review a
district court’s refusal to give an adverse inference
instruction, when properly raised by the appellant, for abuse
of discretion.” Sivilla, 714 F.3d at 1172. Under the abuse of
discretion standard, we ask first whether the district court
applied the correct legal rule, and then determine whether
the court’s application of the legal rule was either
“(1) illogical, (2) implausible, or (3) without support” in the
record. Id. at 1173.
Robertson argues the district court abused its discretion
by identifying the incorrect legal standard when it
considered her request for a lost or destroyed evidence
instruction. We disagree. The rule governing sanctions for
lost or destroyed evidence is found in the controlling
concurrence in United States v. Loud Hawk, 628 F.2d 1139
(9th Cir. 1979) (en banc) (Kennedy, J., concurring), reversed
on other grounds in United States v. W.R. Grace, 526 F.3d
499, 506 (9th Cir. 2008). In considering Robertson’s request
for a lost or destroyed evidence instruction, the district court
reviewed this circuit’s relevant model instruction and
comment, the first sentence of which quotes the Loud Hawk
balancing test as the appropriate standard. See Ninth Circuit
Manual of Model Criminal Jury Instructions, No. 4.18 (July
2010). Therefore, by reviewing this circuit’s model
instruction and comment, the district court ipso facto
identified the correct legal standard.
Because the district court identified the correct legal
standard, we may reverse only if its application of Loud
Hawk was “(1) illogical, (2) implausible, or (3) without
UNITED STATES V. ROBERTSON 13
support” in the record. Sivilla, F.3d at 1173. Under Loud
Hawk, an instruction concerning evidence lost or destroyed
by the government is appropriate when the balance between
“the quality of the Government’s conduct and the degree of
prejudice to the accused” weighs in favor of the defendant.
Loud Hawk, 628 F.2d at 1152. The government bears the
burden of justifying its conduct, while the defendant bears
the burden of demonstrating prejudice. Id.
In assessing the quality, or “culpability,” United States
v. Tercero, 640 F.2d 190, 192 (9th Cir. 1980), of the
government’s conduct, we consider whether the evidence
was lost or destroyed while in the government’s custody,
whether the government acted in disregard of the
defendant’s interests, whether the government was
negligent, whether the prosecuting attorneys were involved,
and, if the acts were deliberate, whether they were taken in
good faith or with reasonable justification. Loud Hawk,
628 F.2d at 1152.
Here, the government’s conduct, while not entirely
blameless, fell within a general range of reasonableness.
Although the parking lot video was automatically recorded
over while in the government’s custody, the government did
not act in disregard of Robertson’s interests because the
exculpatory value of the evidence was not apparent. In
addition, even if the better practice would have been for
Agent Longton to request the video sooner, it is significant
that neither the OIG agents nor the government attorneys
prosecuting the case participated in the events leading to the
loss of the evidence. See Tercero, 640 F.2d at 192
(concluding that the government justified its conduct with
respect to lost or destroyed evidence where there was “no
reason to suspect that the prosecutors themselves were
involved in the destruction of the [evidence]”). Rather, the
14 UNITED STATES V. ROBERTSON
video was erased as part of the 30-day automatic override
process of the Postal Inspection Service, a separate agency
not involved in the case against Robertson. In total then, the
government’s conduct may have been imperfect, but it was
not unreasonable or in bad faith.
We turn now to the second half of the Loud Hawk test,
the prejudice to the defendant. In analyzing prejudice, we
consider the centrality and importance of the lost evidence
to the case, the probative value and reliability of secondary
or substitute evidence, the nature and probable weight of
inferences and kinds of proof lost to the accused, and the
probable effect on the jury from the absence of the evidence.
Loud Hawk, 714 F.3d at 1152.
In this case, any prejudice to Robertson was minimal.
The parking lot video was not central to the case because the
government, with the exception of one test letter, did not
argue that any of the mail cited in the indictment was placed
in Robertson’s car on June 26, 2014. The nature of the
inferences and proof lost to Robertson also cuts against a
finding of prejudice because it is not clear whether the video
would have provided an unobstructed view of Robertson’s
car. Finally, the probable effect on the jury from the absence
of the video was not significantly prejudicial because
Robertson’s counsel was permitted, and did, argue before the
jury that Agent Longton failed to preserve the video. Under
these circumstances, and in light of the generally reasonable
quality of the government’s conduct, the district court did
not need to find that prejudice to Robertson required a lost
or destroyed evidence instruction under Loud Hawk. There
was no abuse of discretion.
UNITED STATES V. ROBERTSON 15
C.
Robertson next argues the district court erred by not
imposing an appropriate sanction for what she claims were
violations of Federal Rule of Evidence 615 by the
government. We review the district court’s determination of
the appropriate sanction for a Rule 615 violation for abuse
of discretion. See United States v. Hobbs, 31 F.3d 918, 921
(9th Cir. 1994).
Rule 615 provides, in relevant part, that “[a]t a party’s
request, the court must order witnesses excluded so that they
cannot hear other witnesses’ testimony.” Fed. R. Evid. 615.
This rule of exclusion applies to both pretrial evidentiary
hearings and to the guilt phase of the trial. United States v.
Brewer, 947 F.2d 404, 407–08 (9th Cir. 1991). The purpose
of a Rule 615 exclusion order is to “reduce the danger that a
witness’s testimony will be influenced by hearing the
testimony of other witnesses, and to increase the likelihood
that the witness’s testimony will be based on her own
recollections.” Hobbs, 31 F.3d at 921; see Fed. R. Evid. 615
advisory committee’s note to 1972 proposed rule (“The
efficacy of excluding or sequestering witnesses has long
been recognized as a means of discouraging and exposing
fabrication, inaccuracy, and collusion.”).
Robertson first challenges the district court’s ruling that
a conversation on day three of the trial between the
prosecutor, Agent Longton, and another OIG agent outside
the courtroom did not violate Rule 615. Robertson asserted
that she overheard the prosecutor and the agents discussing
“something to the effect that . . . they had messed up with the
fingerprints and the fingerprint examiner.”
The district court did not abuse its discretion in not
finding a Rule 615 violation. After the possible violation was
16 UNITED STATES V. ROBERTSON
brought to its attention, the district court questioned the
prosecutor and Agent Longton about the conversation, both
of whom told the court that the conversation concerned the
logistics of transporting the fingerprint examiner to the
airport. When asked directly by the court whether the
conversation related to the fingerprint examiner’s testimony
or anything case related, Agent Longton replied that it did
not. Robertson’s counsel herself stated “I am allowing for
the fact that it could be innocent and that we would all just
be more careful going forward.” Given the lack of specificity
of Robertson’s allegations, and the government’s
representation that witness testimony was not part of the
conversation, the district court did not abuse its discretion in
concluding the conversation did not violate Rule 615.
Robertson next argues the district court abused its
discretion by not imposing a more severe sanction when the
government violated Rule 615 by allowing two agent
witnesses to review transcripts of a pretrial evidentiary
hearing (at which Agent Longton testified) before the two
agents testified at trial. The district court stated that it was
not certain whether allowing the agents to review transcripts
constituted a Rule 615 violation, but that to the extent it was,
the appropriate remedy was to permit cross-examination of
the agents and allow the defense to address the issue in
closing arguments.
Before we explain why we conclude the district court’s
chosen sanction was not an abuse of discretion, we address
first an open question in our circuit relevant to Robertson’s
argument: whether Rule 615 prohibits a sequestered witness
from not only attending a hearing or trial, but reading
transcripts from it. The government and the district court
point out that Rule 615, by its terms, does not preclude
potential trial witnesses from reviewing transcripts of a prior
UNITED STATES V. ROBERTSON 17
proceeding before testifying. Under this view, there is no
Rule 615 violation for reviewing prior testimony from a
transcript so long as the witness was not in the courtroom to
hear that testimony.
In our view, an interpretation of Rule 615 that
distinguishes between hearing another witness give
testimony in the courtroom and reading the witness’s
testimony from a transcript runs counter to the rule’s core
purpose—“to prevent witnesses from tailoring their
testimony to that of earlier witnesses.” Larson v. Palmateer,
515 F.3d 1057, 1065 (9th Cir. 2008) (citation omitted). The
danger that earlier testimony could improperly shape later
testimony is equally present whether the witness hears that
testimony in court or reads it from a transcript. An exclusion
order would mean little if a prospective witness could simply
read a transcript of prior testimony he was otherwise barred
from hearing. Therefore, we join those circuits that have
determined there is no difference between reading and
hearing testimony for purposes of Rule 615. See United
States v. McMahon, 104 F.3d 638, 642–45 (4th Cir. 1997)
(affirming the district court’s conclusion that a witness
violated a Rule 615 exclusion order by reading daily trial
transcripts); United States v. Friedman, 854 F.2d 535, 568
(2d Cir. 1988) (recognizing that “the reading of testimony
may violate an order excluding witnesses issued by a district
court under Rule 615”); United States v. Jimenez, 780 F.2d
975, 980, n.7 (11th Cir. 1986) (concluding that a witness
violated a Rule 615 exclusion order by reading the testimony
of another agent witness from a prior mistrial); Miller v.
Universal City Studios, Inc., 650 F.2d 1365, 1373–74 (5th
Cir. 1981) (holding that providing a witness transcribed
portions of another witness’s testimony in preparation for his
court appearance constitutes a violation of Rule 615). A trial
witness who reads testimony from the transcript of an earlier,
18 UNITED STATES V. ROBERTSON
related proceeding violates a Rule 615 exclusion order just
as though he sat in the courtroom and listened to the
testimony himself.
In light of our clarification of Rule 615’s scope, the
district court’s suggestion that reviewing transcripts of prior
testimony cannot violate the rule was incorrect. However, in
this case the district court explicitly assumed a violation
occurred, and then determined that the appropriate sanction
was to allow the defense to cross-examine the agent
witnesses about their exposure to the transcript. We have
long recognized cross-examination as a suitable remedy for
a Rule 615 violation, at least where, as here, the violation of
the rule was not deliberate. Hobbs, 31 F.3d at 921–22.
Robertson makes no argument for why this common remedy
was insufficient under the circumstances presented here. The
district court carefully explored the alleged violation,
considered the possible sanctions, determined that neither
the prosecutor nor the agent witnesses intended to violate the
exclusion order, and ultimately decided that cross-
examination of the witnesses in front of the jury was
sufficient to cure any unintentional violation. This course of
action was well within the district court’s discretion. See
United States v. English, 92 F.3d 909, 913 (9th Cir. 1996)
(district court’s decision to not disqualify a witness who
violated an exclusion order was not an abuse of discretion
where there was no indication that the side calling the
witness intended to violate the order); cf. United States v.
Arias-Santana, 964 F.2d 1262, 1266 (1st Cir. 1992) (“Even
in the face of an established violation of a court-ordered
witness sequestration order, the sanction determination is
committed to the sound discretion of the trial court.”).
UNITED STATES V. ROBERTSON 19
D.
Robertson’s fourth contention is that the district court
erred in denying her request for production of Agent
Longton’s notes under the Jencks Act, 18 U.S.C. § 3500.
“We review a district court’s denial of a motion to produce
a witness’ statement pursuant to the Jencks Act for abuse of
discretion.” United States v. Boshell, 952 F.2d 1101, 1104
(9th Cir. 1991).
After a government witness testifies on direct
examination, the Jencks Act requires the district court, on
motion of the defendant, to order production of any
“statement” of the witness in possession of the government
that relates to the subject matter of the witness’s testimony.
18 U.S.C. § 3500(b). Under the Act, the term “statement”
includes “a written statement made by [the] witness and
signed or otherwise adopted or approved by him,” or a
“substantially verbatim recital of an oral statement made by
said witness and recorded contemporaneously with the
making of such oral statement.” 18 U.S.C. § 3500(e). We
have held that “notes and reports” of government agents who
testify for the government may constitute a “statement”
subject to production under the Jencks Act. United States v.
Johnson, 521 F.2d 1318, 1319–20 (9th Cir. 1975).
After Agent Longton’s testimony indicated he may have
taken notes of a June 12, 2014 conversation with one of the
customers who complained about a missing gift card,
defense counsel requested the district court to order
production of the notes. The district court then questioned
the government about whether the notes in question were
required to be disclosed under any of the “affirmative
disclosure theories” raised by the defense. The government
responded that none of Agent Longton’s handwritten notes
had “any substance to them,” but instead contained
20 UNITED STATES V. ROBERTSON
fragmentary writings “like phone numbers here and there
and whatnot.” The district court concluded the notes were
not subject to production under the Jencks Act.
Robertson contends the Jencks Act required the district
court to conduct an in camera review of Longton’s notes
before determining the notes were not subject to production.
We disagree. Although our case law in this area has not been
entirely clear, we have previously stated that a defendant
must make a threshold showing that notes sought pursuant
to the Jencks Act constitute a “statement” before the district
court will be required to review the notes in camera. See
United States v. Henke, 222 F.3d 633, 642–43 (9th Cir.
2000) (concluding that defendants did not trigger the district
court’s obligation to review government’s notes in camera
where they made no showing the notes were used or adopted
by the witness); United States v. Michaels, 796 F.2d 1112,
1117 (9th Cir. 1986) (holding that the district court did not
abuse its discretion in refusing to order production where
defendant “made no attempt to show” that the notes in
question satisfied the “requirements that would qualify them
as witness’s statements for purposes of the Jencks Act”).
Here, Robertson did not make a prima facie showing that
Longton’s rough notes constituted a statement under the Act.
See United States v. Mincoff, 574 F.3d 1186, 1200 (9th Cir.
2009) (citation omitted) (“[A]n agent’s rough notes will not
be Jencks Act statements when they are not complete, are
truncated in nature, or have become an unsiftable mix of
witness testimony, investigator’s selections, interpretations,
and interpolations.”). Therefore, the district court was not
obligated to review the notes in camera.
Robertson relies on our decision in Johnson to argue
otherwise, but Johnson is not to the contrary. In Johnson, the
district court denied a defendant’s request for production of
UNITED STATES V. ROBERTSON 21
an agent’s notes of the arrest and interview of the defendant,
concluding that “provision of the agent’s case report was
enough to satisfy the requirements of the Jencks Act.”
521 F.2d at 1320. We reversed, explaining that the district
court was first required to decide whether the notes in
question constituted a “statement” before denying the
request. Id. at 1319. We concluded “[t]hat the notes may
have constituted a Jencks Act statement was sufficient to
trigger further investigation” by the district court. Id. at
1320.
To be sure, some of our language in Johnson could be
read to suggest an open-ended obligation on the part of the
district court to review notes in camera every time a
defendant alleges an agent’s notes are subject to production.
See id. at 1319 (“It is the function of the trial court to
determine the issue of producibility, i.e., to decide whether
the notes in question constitute a ‘statement’ within the
meaning of the Act.”). But Johnson is not inconsistent with
our later cases discussing the defendant’s need to make a
prima facie showing. In Johnson, there was no dispute that
the agent’s handwritten notes of the defendant’s arrest and
interview could qualify as a statement under the Jencks Act.
We reversed the district court because the fact that the notes
fell within the category of possible statements subject to
production required the court to investigate further, which it
failed to do. Id. at 1320. Here, by contrast, there is no
foundation in the record on which to conclude that Agent
Longton’s rough notes rose to the level of a possible
“statement” under the Jencks Act. Johnson did not discuss a
prima facie showing because any such showing was satisfied
there on its face. That is not the case with the incomplete
notes at issue here. See United States v. Bobadilla-Lopez,
954 F.2d 519, 522 (9th Cir. 1992) (“[F]or production to be
required [under the Jencks Act], the materials should not
22 UNITED STATES V. ROBERTSON
only reflect the witness’ own words, but should also be in
the nature of a complete recital that eliminates the possibility
of portions being selected out of context.”); United States v.
Griffin, 659 F.2d 932, 938 n.4 (9th Cir. 1981) (“[I]t will be
the very unusual case where an agent’s own thoughts will be
recorded in rough interview notes with sufficient
completeness or intent to communicate to be a Jencks Act
statement.”).
We now make it clear that unless a defendant makes a
threshold showing that notes sought pursuant to the Jencks
Act may qualify as a “statement” under the Act, the district
court is not obligated to review the notes in camera before
refusing to compel production. The defendant’s burden in
this regard is not a heavy one. We agree with the Seventh
Circuit that so long as a defendant seeking production under
the Jencks Act specifies with reasonable particularity that a
certain document exists, that there is reason to believe the
document is a “statement” under the Act, and that the
government failed to provide it in violation of the Act, the
district court will ordinarily be required to conduct an in
camera inquiry into whether the document in question
constitutes a statement. See United States v. Allen, 798 F.2d
985, 996–97 (7th Cir. 1986).
Robertson did not make a threshold showing that Agent
Longton’s rough notes constituted a statement under the
Jencks Act. Therefore, she has not shown that the district
court abused its discretion in refusing to order production of
the notes.
E.
Finally, Robertson argues the district court erred by
adopting a jury instruction on embezzlement of mail by a
postal employee that misstated the law. Where, as here, the
UNITED STATES V. ROBERTSON 23
defendant failed to object to the jury instruction before the
district court, we review for plain error whether the
instruction misstated the law. United States v. Walls,
784 F.3d 543, 546 (9th Cir. 2015).
Counts one through seven of the indictment charged
Robertson with theft of mail by a postal employee in
violation of 18 U.S.C. § 1709. Section 1709 provides:
Whoever, being a Postal Service officer or
employee, embezzles any letter, postal card,
package, bag, or mail, or any article or thing
contained therein entrusted to him or which
comes into his possession intended to be
conveyed by mail . . .; or steals, abstracts, or
removes from any such letter, package, bag,
or mail, any article or thing contained therein,
shall be fined under this title or imprisoned
not more than five years, or both.
As evident from the plain language of the statute, section
1709 treats embezzling mail and stealing mail as two
separate offenses. See also United States v. Lucarz, 430 F.2d
1051, 1053 n.1 (9th Cir. 1970). Robertson was charged with
embezzlement.
As relevant here, the indictment alleged that Robertson
embezzled mail that had been “entrusted to her and which
came into her possession.” The district court’s jury
instruction, however, required the government to prove
Robertson “was entrusted with or came into possession of”
the mail she was accused of embezzling. Robertson argues
that the use of the disjunctive “or” in the jury instruction was
plain error because it allowed the jury to convict her of
embezzlement solely on a finding that she “came into
possession” of the mail, rather than a showing of both
24 UNITED STATES V. ROBERTSON
entrustment and possession. We conclude Robertson’s
argument is without merit.
First, the jury instruction adopted by the district court
tracked the language of section 1709. As stated above,
section 1709 prohibits a Postal Service employee from
embezzling mail matter “entrusted to him or which comes
into his possession.” 18 U.S.C. § 1709 (emphasis added).
Similarly, the instructions given to the jury required the
government to prove that Robertson was “entrusted with or
came into possession of” the mail she was alleged to have
embezzled. Because the adopted instruction accurately re-
stated the elements of the statutory offense, the instruction
did not misstate the law. See United States v. Dela Cruz, 358
F.3d 623, 626 (9th Cir. 2004) (rejecting defendant’s
challenge to the district court’s jury instructions where the
instructions properly stated the necessary elements for
conviction).
Second, Robertson’s argument that the difference
between the disjunctive “or” used in the jury instruction and
the conjunctive “and” used in the indictment indicates plain
error by the district court is incorrect. The government may
charge in the conjunctive and prove in the disjunctive.
United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988);
United States v. Carter, 454 F.2d 525, 526 (9th Cir. 1972);
McGriff v. United States, 408 F.2d 333, 334 (9th Cir. 1969).
As we explained in Bonanno, “[w]here a statute specifies
two or more ways in which an offense may be committed,
all may be alleged in the conjunctive in one count and proof
of any one of those acts conjunctively charged may establish
guilt.” 852 F.2d at 441. That is exactly what occurred here.
The indictment charged Robertson in the conjunctive, while
the jury instruction was written in the disjunctive. Thus,
under long-standing practice, the district court did not
UNITED STATES V. ROBERTSON 25
plainly err in giving a disjunctive instruction that tracked the
language of the statute. McGriff, 408 F.2d at 334 (concluding
the district court properly instructed the jury in the
disjunctive even though the indictment charged violation in
the conjunctive).
Finally, although not a direct challenge to the jury
instructions, Robertson alleges the government committed
“prosecutorial error” by informing the jury it could convict
Robertson of embezzling mail solely on a finding that the
stolen mail “came into her possession.” Robertson contends
the government was required to prove both that the mail had
been “entrusted to her” and “came into her possession.”
We disagree. Even if we did accept Robertson’s
assertion that the government downplayed the position of
trust she occupied as a USPS letter carrier (an assertion
belied by the record), as explained above the government
needed to prove only that the mail was entrusted to
Robertson or came into her possession. Thus, to the extent
the prosecution focused its case on showing Robertson
“came into possession” of the mail she was accused of
embezzling, there was no error.
AFFIRMED.