USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1251
UNITED STATES,
Appellee,
v.
LISA BURNS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Barbadoro,* District Judge.
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William Maselli, by Appointment of the Court, on brief for
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appellant.
Jay P. McCloskey, United States Attorney, and Michael M. DuBose,
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Assistant United States Attorney, on brief for appellee.
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February 8, 1994
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*Of the District of New Hampshire, sitting by designation.
Barbadoro, District Judge. Lisa M. Burns, a
Barbadoro, District Judge
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United States Post Office employee, was tried and convicted
on two counts of embezzling mail in violation of 18 U.S.C.
1709. She argues that we should reverse her conviction
because: (1) the prosecutor violated Fed. R. Crim. P.
16(a)(1)(A) by failing to timely disclose a postal
inspector's report summarizing statements Burns made to one
of her supervisors; (2) the District Judge erroneously
admitted other allegedly involuntary statements Burns made
to the investigating postal inspector; (3) the Judge
mistakenly read from a superseded indictment during his
preliminary jury instructions; (4) the Judge improperly
excluded on hearsay grounds certain testimony Burns offered
to impeach the testimony of another witness; and (5) the
Judge's jury instruction concerning Burns' intoxication
defense unconstitutionally required her to prove that she
acted without criminal intent. Finding no reversible error
in these claims, we affirm her conviction.
I. Background
I. Background
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Lisa Burns first came to the attention of
United States Postal Inspectors after Inspector Robert
Bethel placed a routine "test mailing" at the Naples, Maine
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post office where Burns worked. "Test mailing" is the
Postal Service's method of determining whether employees at
certain randomly-selected post offices are properly handling
the mail. The "test mail" is an envelope addressed to a
fictitious person at a non-existent post office box at the
targeted post office. The envelope is typically marked
"refund inside" and contains a rebate check made out to
bearer. The return address on the envelope specifies a post
office box in the New England area controlled by the Postal
Service. If the mailing is handled properly, it is usually
marked "undeliverable" and returned within two weeks. If it
is not returned, the postal inspector targets the post
office for additional test mailings and attempts to
determine what happened to the initial mailing.
The first test mailing Bethel placed at the
Naples post office contained a $5 rebate check. When the
mailing was not returned, Bethel recovered the cashed rebate
check and determined that it had been endorsed by Burns.
Bethel then tried to tempt Burns with a second mailing
containing a $10 rebate check. It also disappeared. This
time, Bethel discovered that the rebate check apparently had
been endorsed by Karen King, Burns' roommate.
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After failing to entice Burns with yet
another test mailing, Bethel confronted her in the parking
lot of the post office. He identified himself, described
the nature of his investigation, advised Burns that she was
not under arrest, and asked her whether she would be willing
to speak with him. She agreed, and they returned to the
post office. Before beginning his questioning, Bethel read
Burns her Miranda rights from a Postal Service waiver form.
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He also had her initial each printed statement after it was
read and sign the form at the end. Burns then made several
incriminating statements in response to Bethel's questions.
At the end of the interview, she wrote out and signed a
statement memorializing her admissions. Burns later sent
Bethel a supplemental statement in which she alleged that
she had an imperfect recollection of the incidents in
question because she was an alcoholic and was intoxicated
when she took the test mailings. At trial,
the government's case rested primarily on Bethel's testimony
and Burns' admissions. In response, Burns pleaded
entrapment and intoxication. The jury ultimately rejected
her defenses and found Burns guilty on both counts. She was
later sentenced to 60 days confinement and fined $500.
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II. Discussion
II. Discussion
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A. Pre-Trial Disclosure Pursuant to Rule 16
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Burns' primary argument on appeal is that the
prosecutor violated Rule 16(a)(1)(A) by failing to disclose
prior to trial a report summarizing statements Burns made to
one of her supervisors. In pertinent part, the rule
provides that:
Upon request of a defendant
the government shall disclose
to the defendant and make
available for inspection,
copying, or photographing: . .
. that portion of any written
record containing the
substance of any relevant oral
statement 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 . . . .
Burns argues that her supervisor was a "government agent"
and that she made her statements "in response to
interrogation." Thus, she contends that the prosecutor was
obligated to disclose the report pursuant to her pretrial
request. We reject Burns' arguments because we determine
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that Burns' supervisor was not a "government agent" as that
term is used in Rule 16.1
Rule 16 does not define "government agent."
We therefore must choose between the two plausible
definitions of the term. Viewed broadly, the term
encompasses anyone who performs duties of a public nature on
behalf of the executive, legislative or judicial branches of
the local, state or federal government. Black's Law
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Dictionary 695-96 (6th ed. 1990) (defining "government" and
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"government agent"). Burns' supervisor would qualify as a
government agent under this definition because he was
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1 We also reject Burns' additional assertion that,
because Bethel reduced the supervisor's oral summary of
defendant's statements to writing, this written summary
constitutes a recorded statement of the defendant subject to
disclosure "regardless of who the statement was made to or
how it was occasioned." Although the first subpart of Rule
16(a)(1)(A) makes a defendant's "written or recorded
statements" discoverable irrespective of whether they were
made in response to interrogation by a known government
agent, we agree with the Second Circuit Court of Appeals
that an oral statement does not become "written or recorded"
merely because a government agent made a written summary of
the statement before trial. In Re United States, 834 F.2d
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283, 284-85 (2d Cir. 1987). See also, e.g., United States
___ ____ _____ _____________
v. McCure, 734 F.2d 484, 492-93 (10th Cir. 1984). This is
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especially true where, as here, the statement was actually
heard by a third party and then reported to the government
agent at a later date. See In Re United States, 834 F.2d at
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285-86.
Finally, because we agree with the trial
judge that Burns' supervisor was not a government agent, we
need not decide whether Burns' statements were made "in
response to interrogation."
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employed by the United States Postal Service when the
statements were made. The competing definition is narrower
and more colloquial. It includes only persons with criminal
law enforcement responsibilities or their agents. See,
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e.g., Hoffa v. United States, 385 U.S. 293, 295, 305-07
____ ________________________
(1966) (using "government agent" to describe an undercover
law enforcement officer); Illinois v. Perkins, 496 U.S. 292,
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294, 297, 299 (1990). Under this definition, Burns'
supervisor would not qualify as a government agent since he
had no criminal law enforcement responsibilities and was not
acting as an agent of the postal inspectors when Burns made
the incriminating statements. The choice between these two
definitions presents a question of law which we review de
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novo. United States v. O'Neil, No. 93-1325, 1993 U.S. App.
____ ________________________
LEXIS 32612, at *7 (1st Cir. Dec. 15, 1993).
We begin our analysis with the axiom that
language must be interpreted in context. Kelly v. Robinson,
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479 U.S. 36, 43 (1986). As we have recently acknowledged,
"[t]erms in an act whose meaning may appear plain outside
the scheme of the statute can take on a different meaning
when read in their proper context." Greenwood Trust Co. v.
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Massachusetts, 971 F.2d 818, 825 (1st Cir. 1992), cert.
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denied, 113 S. Ct. 974 (1993).
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Here, by limiting the prosecution's
disclosure obligation to summaries of relevant statements
that are made by a defendant "in response to interrogation,"
the Rule's surrounding text strongly supports the narrow
reading of the term. When Rule 16 was amended in 1974 to
include the language at issue, the amendment's drafters were
working in a milieu in which courts were required to give
special attention to statements obtained in response to
interrogation by law enforcement officers. See, e.g.,
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Miranda v. Arizona, 384 U.S. 436 (1966). Obviously, Miranda
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and its progeny require suppression of a defendant's
statements obtained through custodial interrogation unless
the defendant properly waived his or her Miranda rights.
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Id. at 444-45. Moreover, even if a defendant was not in
__
custody, his or her statements might still be suppressed if
they were coerced through interrogation by law enforcement
officers. See, e.g., Rogers v. Richmond, 365 U.S. 534, 544
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(1961); Davis v. North Carolina, 384 U.S. 737, 740-42
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(1966); Beecher v. Alabama, 389 U.S. 35, 36 & n.2 (1967).
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See also Beckwith v. United States, 425 U.S. 341, 347-48
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(1976) (citing Rogers and Davis for the proposition that
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statements resulting from noncustodial interrogation may be
suppressed if involuntary). Such concerns did not then and
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do not now apply to statements obtained from a defendant by
persons without law enforcement responsibilities, regardless
of whether the statements were obtained through
interrogation. See, e.g., Yates v. United States, 384 F.2d
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586, 587-88 (5th Cir. 1967) (hotel manager who tipped FBI);
United States v. Antonelli, 434 F.2d 336-38 (2d Cir. 1970)
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(private security guard); United States v. Eide, 875 F.2d
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1429, 1431, 1433-34 (9th Cir. 1989) (defendant's supervisor
at federal Veterans' Administration Medical Center); United
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States v. Pullen, 721 F.2d 788, 790-91 (11th Cir. 1983)
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(bank officials). Thus, if "government agent" refers only
to law enforcement officials or persons acting on their
behalf, the potential for pretrial suppression of statements
that resulted from interrogation by such individuals
provides a rational basis for limiting the government's
pretrial disclosure obligation to summaries of statements
made "in response to interrogation." The rational basis for
the interrogation limitation disappears, however, if
"government agent" is construed to mean government employee.
Besides enjoying strong contextual support,
the narrow meaning of "government agent" avoids the
arbitrariness that would result if the term were defined
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more expansively. We agree that the broad reading of
"government agent" gives maximum deference to the policies
underlying Rule 16's mandatory disclosure rules. See United
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States v. Alvarez, 987 F.2d 77, 84-85 (1st Cir.), cert.
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denied, 114 S. Ct. 147 (1993) (Rule 16's mandatory
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disclosure provisions promote "the fair and efficient
administration of criminal justice by providing the
defendant with sufficient information upon which to base an
intelligent [] plea; by minimizing the undesirable effect of
suppression at trial; and by contributing to the accuracy of
the fact finding process."). Once it is divorced from the
law enforcement context, however, this definition is
problematic because it deteriorates into a completely
arbitrary limitation on the prosecution's duty to disclose.
Under the term's broad reading, for example, the prosecution
would be obligated to disclose portions of a report
summarizing statements the defendant made to a government
cook, but not those portions of the same report that
summarize statements the defendant made to another cook at a
privately-run diner. Moreover, given that Rule 16 requires
that the individual to whom the statements are made be "then
known to the defendant" as a government agent, the
prosecution would only be obligated to disclose the
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defendant's statements to the government cook if the
defendant knew when she made the statements that the cook
was a government employee. The arbitrariness of such
distinctions is obvious.
Consistent with the rule of construction that
legislative enactments "should be interpreted to avoid
untenable distinctions and unreasonable results whenever
possible," American Tobacco Co. v. Patterson, 456 U.S. 63,
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71 (1982); Kelly v. United States, 924 F.2d 355, 361 (1st
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Cir. 1991), we refuse to construe "government agent" in a
way that requires such arbitrary line drawing when a less
problematic reading of the term is also plausible. Here,
the narrower definition of "government agent" limits the
government's pretrial disclosure obligation to summaries of
those statements that are most likely to require a pretrial
ruling before they are admitted into evidence. By doing so,
this definition serves the policies underlying Rule 16
without irrationally requiring the prosecution to base its
disclosure determination on whether the defendant knows that
the person to whom she is making her statements is a
government employee. We therefore agree with the trial
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court that, as used in Rule 16, "government agent" refers
onlyto lawenforcement agentsorpersons actingon theirbehalf.2
B. Voluntariness of Burns' Confession
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Burns next challenges the District Judge's
denial of her motion to suppress the oral and written
statements she made in response to questioning by Inspector
Bethel. She alleges that Bethel promised not to arrest her
if she cooperated with his investigation. She also claims
that Bethel's questioning was inherently coercive because it
occurred at the one-room post office in the presence of
customers and her supervisor. Finally, she contends that
she was in a "weakened psychological state" during the
interview because she was an alcoholic who had stopped
drinking only two weeks earlier. Based upon the totality of
these factors, Burns claims that her statements were
involuntary and therefore should have been suppressed.
In determining the voluntariness of a
confession, courts must apply the "totality of the
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2 In reaching this conclusion, we do not endorse the
prosecution's decision to withhold Bethel's report. As the
advisory committee notes to the Rule point out, "[t]he rule
is intended to prescribe the minimum amount of discovery to
which the parties are entitled." Fed. R. Crim. P. 16
advisory committee's note (1974 amendment) (West 1993).
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circumstances test." Arizona v. Fulminante, 499 U.S. 279,
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286 (1991). Although the ultimate issue of voluntariness is
a question of law subject to plenary review, we will accept
the district court's subsidiary findings of fact unless they
are "clearly erroneous." United States v. Garcia, 983 F.2d
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1160, 1167 (1st Cir. 1993). Further, we will uphold the
district court's denial of a motion to suppress if it is
supported by any reasonable view of the evidence. Id.
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Applying these standards to the three factors
allegedly requiring suppression of Burns' statements --
Bethel's alleged promise, his choice of interrogation site,
and Burns' mental state -- we conclude that the District
Judge correctly denied her motion to suppress. First, while
Burns testified that Bethel promised not to arrest her if
she agreed to be interviewed, the Magistrate Judge who
presided at the suppression hearing accepted Bethel's
contrary testimony and found that he had never made such a
promise. Since the record contains sufficient evidence to
support the Magistrate Judge's finding, the District Judge's
acceptance of this finding was not clearly erroneous. See
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United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990)
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("Where there are two competing interpretations of the
evidence, the district court's choice of one of them cannot
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be clearly erroneous."). Accordingly, Bethel's alleged
promise not to prosecute Burns plays no role in our
evaluation of whether her statements were voluntary.
Second, we reject Burns' claim that Bethel
chose an inherently coercive setting for the interview. The
record amply supports the Magistrate Judge's conclusion that
Burns agreed to be interviewed at the post office after
being informed that she was not under arrest and after
voluntarily waiving her Miranda rights. Moreover, Burns
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worked at the post office, and so was intimately familiar
with the site Bethel chose for the interview. Given that
Burns agreed to be interviewed in familiar surroundings
after being advised that she was under no obligation to
speak, we cannot accept her claim that Bethel's decision to
conduct the interview at the post office was inherently
coercive.
Finally, Burns contends that her statements
were involuntary because they were a product of her weakened
mental state. Burns correctly conceded at the suppression
hearing that, absent some evidence of coercive police
conduct, the court could not find that her weakened mental
state rendered her statements involuntary. See Colorado v.
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Connelly, 479 U.S. 157, 163-67 (1986); United States v.
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Victoria-Peguero, 920 F.2d 77, 88 (1st Cir. 1990), cert.
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denied, 111 S. Ct. 2053 (1991). Since we have already
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rejected Burns' contention that Bethel's conduct was
coercive, we must reject her state of mind argument as well.
C. Reading from the Wrong Indictment
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Burns claims that the District Judge
committed reversible error by mistakenly reading from a
superseded indictment when he described the charged offenses
in his preliminary jury instructions. Because Burns did not
object to the Judge's preliminary instructions, we are
limited to "plain error" review. See Fed. R. Crim. P.
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52(b). Accordingly, we will not reverse her conviction
unless: (1) the Judge erred; (2) his error was "clear" or
"obvious"; and (3) the error affected Burns' "substantial
rights," which in this case means that the claimed error
probably affected the jury's verdict. See United States v.
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Olano, 113 S. Ct. 1770, 1777-78 (1993). Here, because Burns
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has failed to show that the court's error affected her
substantial rights, her claim fails.
Although the District Judge mistakenly read
from the original indictment during his preliminary
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instructions, this error could not have affected the jury's
verdicts. First, each of the original indictment's two
counts tracked the language of the embezzlement statute and
described each embezzlement's approximate date and place.
Second, the only difference between the two indictments is
that the original indictment identified the embezzled test
mailings solely by listing their fictitious addresses,
whereas the superseding indictment also identified the
payors and check numbers of the rebate checks that the
mailings contained. Since the original indictment provided
Burns with enough information about the charged offenses to
both prepare for trial and avoid double jeopardy, the
additional information contained in the superseding
indictment is mere surplusage. See United States v. Serino,
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835 F.2d 924, 929 (1st Cir. 1987). Moreover, the Judge's
failure to read this surplusage to the jury could not have
affected its verdicts because the contents of the embezzled
test mailings were not in dispute. See United States v.
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Yefsky, 994 F.2d 885, 892-94 (1st Cir. 1993) (trying the
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defendant on an indictment containing insufficient detail
concerning the charged offense was harmless error where
defendant received advance notice of the government's trial
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theory and defendant had an adequate opportunity to respond
at trial).3
D. Hearsay
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Burns next contends that the District Judge
improperly excluded as hearsay certain testimony she offered
to impeach the testimony of another witness. Early in her
case, Burns called her co-worker and friend, Cathy Larsen,
as a character witness. On cross-examination, Larsen stated
that she had visited Burns after Bethel had confronted her
about the missing mailings. Larsen then testified that,
while discussing the theft of the test mail, Burns told her
that she "had done something stupid," was "embarrassed and
ashamed" and apologized for her conduct. After calling
several other witnesses, Burns called her roommate, Karen
King. King, who had been present with Burns during Larsen's
visit, testified:
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3 Burns also argues that she was tried on the wrong
indictment. However, this argument does not merit extended
discussion because it is not supported by the record. At
the close of the case, the judge instructed counsel to
review both the indictment and the jury verdict form before
they were submitted to the jury. The record is devoid of
any suggestion that counsel failed to ensure that it was the
superseding indictment that was submitted. We thus have no
reason to determine whether Burns' conviction would have to
be reversed if the jury had been asked to render its
verdicts on the original indictment.
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Q. On that night did Lisa make any
statement saying she had taken
checks?
A. Never.
The prosecutor objected to King's answer, claiming that the
answer was hearsay. Defense counsel responded that he was
offering the testimony not to establish that Burns had never
taken the checks, but to impeach Larsen's testimony that Burns
had made the statements. The Judge sustained the prosecutor's
objection. On appeal, Burns contends that exclusion of this
testimony was reversible error.
We agree that King should have been allowed to
testify that Burns never admitted to taking the checks. When the
prosecutor elicited testimony from Larsen about Burns'
statements, the prosecutor put those statements in dispute.
Burns then was entitled to produce testimony from another of the
meeting's participants to refute the prosecutor's version of what
was said. Such testimony is not hearsay because it was not
offered to prove the truth of Burns' out-of-court statements.
Since King was prepared to testify concerning her own
observations of what was said during the meeting, her testimony
should have been admitted. Although the
trial judge erred, we decline to reverse Burns' conviction on
this basis because his error was harmless. See Fed. R. Crim. P.
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52(a). Burns did not challenge the prosecutor's well-supported
claim that she took the test mailings. Under these
circumstances, her statements to Larsen were harmful only to the
extent that they might undermine her claim that she was so
intoxicated when she took the checks that she did not remember
doing so. Even for this purpose, however, the statements are of
limited probative value. Burns allegedly made the statements
after she was confronted by Bethel and accused of taking the
mailings. Having been so accused, and thus supposedly learning
what she had done, it was entirely consistent with her
intoxication defense for her to have expressed shame to her
friends. Given the limited value of Larsen's testimony, the fact
that Burns was denied the opportunity to challenge it could not
have affected the jury's verdict.
The harmlessness of the Judge's error is
underscored by another fact -- that the prosecution did not need
to rely on Larsen's testimony to establish that Burns acted with
criminal intent. In her statements to Bethel, Burns acknowledged
taking the test mailings and described how she did so in detail.
It was this testimony, far more than Larsen's, that demolished
Burns' claim that she was too intoxicated to remember taking the
test mailings. Accordingly, it was harmless error for the Judge
to exclude King's testimony about her recollection of Burns'
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statements to Larsen. See, e.g., United States v. Burke, 948
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F.2d 23, 27-28 (1st Cir. 1991).
E. The Intoxication Instruction
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Burns' final claim is that the District Judge's
intoxication instruction unconstitutionally required her to prove
that she acted without criminal intent. The Judge gave the
following instruction on Burns' intoxication defense:
Now, the defendant claims that she was
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so far overcome by the use of alcohol
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that it was impossible on the occasions
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for her to form the required specific
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intent, as I have just defined that
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intent to you.
I instruct you that you may consider
evidence of alcohol use by the
defendant, along with all of the other
evidence, in deciding whether the
government has proven beyond a
reasonable doubt that the defendant had
the requisite intent to, as I have
described that to you. (Emphasis added).
Burns contends that the phrase "defendant claims ... it was
impossible" suggested that Burns was required to prove that she
acted without criminal intent. We disagree.
The intoxication instruction merely described
the degree to which Burns' cognitive capacity must have been
impaired before her alcohol use could support a finding of not
guilty. Immediately after instructing the jury on the issue, the
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Judge reminded the jury that the prosecution still had to prove
that Burns acted with criminal intent. When the two instructions
are read together, they adequately apprised the jury that the
prosecution had the burden of establishing beyond a reasonable
doubt that Burns' alcohol use did not prevent her from
intentionally committing the charged offenses. Accordingly, we
reject Burns' challenge to the Judge's intoxication instruction.4
For the foregoing reasons, Burns' conviction is
Affirmed.
Affirmed.
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4 The prosecution contends that Burns had no right
to an intoxication instruction because intoxication is a
diminished capacity defense barred by the Insanity Defense
Reform Act of 1984, 18 U.S.C. 17. See United States v.
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Saban-Gutterrez, 783 F. Supp. 1538, 1545, n.7 (D.P.R. 1991),
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aff'd, 961 F.2d 1565 (1st Cir. 1992) (unpublished opinion);
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United States v. White, 766 F.2d 22, 24 (1st Cir. 1985).
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Given our holding in the present case, we express no opinion
on this issue.
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