United States v. Clarence Paul Roberts and Linwood Lee Lloyd

811 F.2d 257, 1987 U.S. App. LEXIS 2040, 22 Fed. R. Serv. 862

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 13, 1987
• Docket: 85-5122
• Status: Published

Opinions

PER CURIAM:

Appellees Clarence Paul Roberts and Linwood Lee Lloyd were charged with offenses related to Douglas Freeman Ross’ attempt to conceal his illicit drug proceeds by purchasing certain real estate. Appellee Roberts, along with codefendant Ross, was charged with conspiracy to obstruct justice by participating in sham real estate transactions and with related substantive obstruction offenses. In addition, both Roberts and Lloyd were charged with making false statements before a grand jury in connection with its investigation of the real estate transactions.

Appellees entered pleas of not guilty and filed motions for discovery pursuant to Fed.R.Crim.P. 16(a). The motions sought, among other things, the disclosure of any statement made by a codefendant, especially by Ross, which might be imputed to appellee Roberts under the government’s conspiracy theory.

A magistrate ordered the government to comply with this discovery request, and, on the authority of United States v. Jackson, 757 F.2d 1486 (4th Cir.1985), the district court affirmed the magistrate’s order. The government, however, opposed the discovery order, claiming that disclosure would threaten the safety of its witnesses. In light of the government’s refusal to comply, the district court entered an order that any co-conspirator statements admissible under Fed.R.Evid. 801(d)(2)(E) would be suppressed at the defendants’ forthcoming trial. The government appealed the suppression order, and the panel, in an opinion which elaborated upon the holding in Jackson, affirmed the district court. 793 F.2d 580 (4th Cir.1986).

We now vacate the decision of the panel and reverse the suppression order of the district court. The plain language of Fed. R.Crim.P. 16(a)(1)(A) pertains to the discovery of statements “made by the defendant.” The rule does not mention and is not intended to apply to the discovery of statements made by co-conspirators. Such statements are more properly governed by the Jencks Act, 18 U.S.C. § 3500.

When the statements of persons other than the defendant are sought, questions of witness safety necessarily arise. The phrase “witness safety” incorporates our concerns about those persons whose inculpatory statements may be introduced at trial. The dichotomy the dissent would have us draw between declarants and witnesses is utterly unrealistic. It fails to recognize, among other things, that the disclosure of co-conspirator statements may expose not only the declarant to threats and intimidation, but also those expected to testify at trial concerning the declarant’s statements.' This approach endangers government witnesses by circumventing the protections of the Jencks Act, and we reject it.

In reaching this result, we adopt the reasoning set forth in the separate concurrence in United States v. Jackson, 757 F.2d at 1492-94 (Wilkinson, J.). That opinion explains in detail why the alleged “spirit” of the rules is no substitute for their plain meaning, why the safety and well-being of witnesses is compromised by the position of the dissenting judges, and why the reading of the rules adopted herein poses for criminal defendants no danger of unfair surprise.

We remand the case for further proceedings in accordance with this opinion.

REVERSED and REMANDED.