United States v. Harris

• Court: Court of Appeals for the First Circuit
• Decided: May 24, 1995
• Docket: 94-1686
• Status: Published

Opinion

USCA1 Opinion

May 24, 1995            [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-1686

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   WILLIAM HARRIS,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                  Cyr, Circuit Judge,
                                       _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                          and Bownes, Senior Circuit Judge.
                                      ____________________

                                 ____________________

            Juan E.  Alvarez-Cobian, Assistant Federal  Public Defender,  with
            _______________________
        whom Benicio Sanchez Rivera, Federal Public Defender, was on brief for
             ______________________
        appellant.
            Sonia  I. Torres,  Assistant  United States  Attorney,  with  whom
            ________________
        Guillermo  Gil,  United States  Attorney, and  Jorge E.  Vega Pacheco,
        ______________                                 ______________________
        Assistant United States Attorney, were on brief for appellee. 

____________________

____________________



BOWNES,  Senior Circuit  Judge.   In  this case  we
                      BOWNES,  Senior Circuit  Judge.
                               _____________________

            again confront an issue that arises all too frequently:  What

            are  the consequences  when the  government violates  Fed. R.

            Crim.  P. 16 by failing to make timely disclosure of evidence

            to which defendant  is entitled?  We  find that in  this case

            there are none . . . except an admonition.

                                          I.
                                          I.

                      Defendant-appellant, William  Harris, was indicted,

            tried and convicted  by a  jury for aiding  and abetting  the

            possession of cocaine by another with intent to distribute it

            and for  aiding and  abetting another to  import the  cocaine

            into the United States.1

                      Federal  Rule  of  Criminal  Procedure  16(a)(1)  D

            provides:

                         (D) Reports of Examinations and Tests.
                         (D) Reports of Examinations and Tests.
                      Upon   request   of   a   defendant   the
                      government shall permit the  defendant to
                      inspect  and  copy   or  photograph   any
                      results or reports of physical  or mental
                      examinations, and of scientific  tests or
                      experiments, or copies thereof, which are
                      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,  and which
                      are  material to  the preparation  of the
                      defense  or are  intended for use  by the
                      government  as evidence  in chief  at the
                      trial.

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            1.  The  implicated statutes  are:   21 U.S.C.     841(a)(1),
            952(a) and 18 U.S.C.   2.

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Prior to trial, defendant had requested,  pursuant to Fed. R.

            Crim. P.  12(d)(2),2 that  the government notify  him of  any

            evidence in chief discoverable under Rule 16.

                      On the first day  of trial the government announced

            that a  chemist would  testify the next  day as to  the tests

            made  on the cocaine seized  and the results  of those tests.

            There was a prompt objection by defendant to the admission of

            the  chemist's  testimony and  laboratory  reports.   Defense

            counsel pointed out that  it had moved for information  as to

            expert witnesses, including chemists, and their reports; that

            the  motion had  been granted  by  the magistrate;  and that,

            therefore, the government  had violated Fed. R.  Crim. P. 16.

            Defense  counsel  argued that  because  he had  not  seen the

            report  until "today"  he  could not  effectively prepare  to

            cross-examine the chemist the next day because he  would need

            the help of  a chemist to analyze  the report.   The district

____________________

            2.  The rule provides:

                      At the arraignment  or as soon thereafter
                      as is practicable, the defendant  may, in
                      order to afford an opportunity to move to
                      suppress   evidence   under   subdivision
                      (b)(3)  of this  Rule, request  notice of
                      the government's intention to use (in its
                      evidence in chief  at trial) any evidence
                      which  the defendant  may be  entitled to
                      discover  under  Rule 16  subject  to any
                                       _______
                      relevant  limitation  prescribed in  Rule
                                                           ____
                      16.
                      __

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court observed that  counsel had  "all evening  to read  that

            report and prepare for the cross-examination."

                      The  prosecutor said  the  report was  not received

            from the DEA laboratory until the day trial started, February

            14, 1994,  and a  copy was  immediately furnished  to defense

            counsel.   Defense counsel pointed  out that  the report  was

            dated January 11,  1994, so  that the government,  albeit not

            the prosecutor, had the report for over a month.

                      After  listening  to  defense  counsel,  the  court

            overruled his objection to  the introduction of the testimony

            of  the DEA  chemist and  her laboratory  report.   The court

            observed that  defense counsel was experienced  and had dealt

            with  these  kind of  reports "for  many  years."   The court

            concluded the hearing  on the motion to  exclude the evidence

            by saying,

                         You are a good lawyer and  you examine
                      them closely this evening and you will be
                      ready for tomorrow.  That's it.

                      The next day  defense counsel, without  waiving his

            objection to the introduction of this evidence, stated he was

            "willing to stipulate the testimony of the chemist, as to the

            fact  that the substance was  cocaine and the  amount and the

            purity of that."

                      Although defense counsel did not explicitly ask for

            a continuance,  it is evident  from the court's  remarks that

            such a request would not have been granted.

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II.
                                         II.

                      We  start our analysis  with the  compelled finding

            that  the  government  violated  Federal  Rule  of   Criminal

            Procedure 16(a)(1)(D).  But this does not automatically mean,

            as defense counsel seems to assume, that there must either be

            a reversal or a new trial.  Unfortunately, such violations do

            occur  from time  to time and  a solid  body of  case law has

            developed in this area.

                      The  fundamental  rule  is  that there  can  be  no

            reversal  for a violation of Fed. R. Crim. P. 16 unless there

            is an abuse of discretion by the trial court and prejudice to
                                                         ___

            defendant.   "To  obtain reversal,  the defendant  must prove

            that the district court  abused its discretion which resulted

            in prejudice  to the defense."   United States  v. Tajeddini,
                                             _____________     _________

            996 F.2d 1278, 1287 (1st Cir. 1993).  See also  United States
                                                  ___ ____  _____________

            v. Sepulveda, 15  F.3d 1161, 1178-89  (1st Cir. 1993),  cert.
               _________                                            _____

            denied, 114 S. Ct. 2714 (1994); United States v. Alvarez, 987
            ______                          _____________    _______

            F.2d 77, 85 (1st Cir.), cert. denied, 114 S. Ct. 147  (1993);
                                    _____ ______

            United States v. Nickens, 955 F.2d 112, 126 (1st Cir.), cert.
            _____________    _______                                _____

            denied,  113 S. Ct. 108 (1992); United States v. Caudill, 915
            ______                          _____________    _______

            F.2d 294, 299 (7th Cir. 1990).

                      Although an argument can be made that there was  an

            abuse of discretion here, we  need not consider that question

            at  all.   There can be  no doubt that  defendant has utterly

            failed to show any prejudice.  We have no way  of knowing how

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the   laboratory  report  could  have  prejudiced  defendant.

            Defendant's  only argument  is that  he  was denied  the time

            necessary  to  go over  the  report  and prepare  for  cross-

            examination.  But  unless the report  was inaccurate in  some

            important respect, cross-examination would have been a futile

            gesture.   Moreover, defendant had  plenty of time  to have a

            chemist  of his  own choice  examine the  report  between the

            verdict  and sentencing.   Any  flaws in  it could  have been

            brought  to the attention of the court and subsequently to us

            on  appeal.    This was  not  done.    Although there  was  a

            violation of Rule 16, there was no showing of prejudice.  See
                                                                      ___

            United States v.  Mack, 892  F.2d 134, 136  (1st Cir.  1989),
            _____________     ____

            cert. denied, 498 U.S.  859 (1990).  The judgment  below must
            _____ ______

            be Affirmed.
               Affirmed
               ________

                      We add  a postscript.   The United  States Attorney

            has a continuing  obligation to  see to it  that the  Federal

            Rules of Criminal Procedure are followed.   Here a laboratory

            report  that was  an  essential element  of the  government's

            proof and  clearly subject to the  disclosure requirements of

            Rule  16 was  completed more  than thirty  days prior  to the

            start  of trial.  For  some unexplained reason  it sat in the

            DEA  office  in Miami,  Florida,  until trial  started.   The

            United States  Attorney had  the primary  duty to  obtain the

            report so that it could be timely disclosed to defendant.

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