United States v. Manuel Bobadilla-Lopez

954 F.2d 519, 92 Cal. Daily Op. Serv. 313, 92 Daily Journal DAR 419, 1992 U.S. App. LEXIS 101, 1992 WL 1616

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 9, 1992
• Docket: 90-50455
• Status: Published

Opinions

SCHROEDER, Circuit Judge:

Appellant Manuel Bobadilla-Lopez was convicted by a jury of drug trafficking offenses under 21 U.S.C. §§ 846 & 841(a)(1) and 18 U.S.C. § 2, and was sentenced to 60 months in prison. He now appeals his conviction. Bobadilla’s primary claim is that tape-recorded radio transmissions of a border patrol agent observing him prior to his arrest constitute Jencks Act material. See 18 U.S.C. § 3500. The recordings were destroyed pursuant to agency policy thirty days after they were made. After holding a special hearing, the district court determined that the tape recordings were not Jencks Act material. The district court reasoned that the recordings were like rough surveillance notes and not a statement of a witness made in preparation for litigation as contemplated by the Act. See, e.g., United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979). Bobadilla now appeals, claiming that the recordings constitute Jencks Act material improperly destroyed and that his case should be remanded for a new trial with the border patrol agent’s testimony stricken as a sanction for the government’s destruction of the recording.

Background

Border Patrol Agent Tim York was performing patrol duties just north of the United States-Mexico border on December 15, 1989, in the area of the All-American Canal and the Alamo River, east of Calexi-co. He received a radio report that sensors had detected motion on the Alamo River “check,” a bridge-like structure used to regulate the flow of water from the river into the canal. Agent York moved his vehicle into a position to observe the check and with binoculars observed the appellant crossing back and forth between the Mexican and United States sides of the border carrying what appeared to be large garbage bags.

According to Agent York’s testimony at trial, after seeing three bags apparently carried to the north side of the check, he observed Bobadilla and a female companion drive east. Agent York used his radio to broadcast some observations, to describe the vehicle they were driving and to request backup. Agent York followed the couple and observed them stop at a clump of trees and turn west, where they were stopped by agents. Bobadilla’s companion, Marina Lara-Lara, told the agents they had been carrying bags and directed the agents to the clump of trees where three dark-colored garbage bags were found containing individually wrapped packages of marijuana. Both Bobadilla and Lara were arrested.

That recordings were made of Agent York’s surveillance transmissions came to the district court’s attention during the course of a pretrial hearing on a motion to suppress. The motion to suppress itself is not relevant to any issues on appeal. Agent York’s testimony at the hearing, however, made it clear that he had broadcast messages to other patrol agents. Defense counsel sought to suppress the testimony of Agent York as a sanction for the government’s routine destruction of the tape. The district court, still prior to trial, held a hearing to determine whether or not the material was Jencks Act material and concluded that it was not.

During the course of that hearing, Agent York testified that his transmissions were sporadic and intended to describe the two suspects and their location. He testified that he was not aware that any tapes were made of the transmissions and he did not use the tapes in making his final report, which the government did produce.

The district court ruled the recordings were not Jencks Act material. The district court reasoned that the recordings were a form of rough surveillance notes and not “statements” as contemplated by the Act. See United States v. Spencer, 618 F.2d 605, 606-07 (9th Cir.1980) (rough, incomplete notes not Jencks Act statements); United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979) (same). The trial proceeded, Agent York testified and Bobadilla was convicted on both counts. This appeal followed.

The Tapes as Jencks Act Material

We deal for the first time in this circuit with the claim that recordings of investigative surveillance observations must be retained and turned over to defense counsel for impeachment purposes in the event the officer making the surveillance is called as a witness. Some history of the origin and purpose of the Jencks Act is therefore appropriate.

In Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), the Supreme Court held that a criminal defendant had a due process right to inspect, for impeachment purposes, statements which had been made to government agents by government witnesses. Such statements were to be turned over to the defense at the time of cross-examination if their contents related to the subject matter of the witness’ direct testimony, and if a demand had been made for specific statements of the witness. 353 U.S. at 667-72, 77 S.Ct. at 1013-15.

The Jencks Act, 18 U.S.C. § 3500, was enacted in response to the Jencks decision. The Act was intended to preserve the defendant’s right to obtain access to materials which would aid in impeaching government witnesses. See S.Rep. No. 981, 85th Cong., 1st Sess., reprinted in 1957 U.S.Code Cong. & Admin.News 1861, 1862. However, the legislative history expresses a much greater concern with limiting the application of the Jencks decision so that it would not hamper the workings of law enforcement by forcing wholesale disclosure of government materials and files. Id. As the Supreme Court stated in an early interpretation of the statute:

Not only was it strongly feared that disclosure of memoranda containing the investigative agent’s interpretations and impressions might reveal the inner workings of the investigative process and thereby injure the national interest, but it was felt to be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness’ own rather than the product of the investigator’s selections, interpretations, and interpolations. The committee reports of both Houses and the floor debates clearly manifest the intention to avoid these dangers by restricting production to those statements specifically defined in the bill.

Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 1223, 3 L.Ed.2d 1287 (1959) (footnote omitted).

The text of the Jencks Act provides that, after a government witness has testified on direct, “the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). If the government claims the statement is not relevant to the witness’ testimony, the trial court must inspect the material in camera, and excise any irrelevant portions. 18 U.S.C. § 3500(c). If the government chooses not to produce material as ordered by the court, “the court shall strike from the record the testimony of the witness.” 18 U.S.C. § 3500(d).

Subsection (e) of the Act defines the term “statement” as:

(1) a written statement made by [a government] witness and signed or otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or

(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

18 U.S.C. § 3500(e).

Both the history of the statute and the decisions interpreting it have stressed that for production to be required, the materials should not 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. For example, the Supreme Court in Palermo v. United States, 360 U.S. 343, 352, 79 S.Ct. 1217, 1224, 3 L.Ed.2d 1287 (1959), stated that “the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital.” Because the drafters did not intend to grant access to materials which take a witness' words out of context, courts have considered the nature and completeness of the alleged “statement.” Thus in United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979), we held that an agent’s rough notes jotted during surveillance were not producible under the Jencks Act due to the incomplete nature of the notes. We noted that “rough notes of an agent’s surveillance activities are often sketchy and incomplete, made in a hurry, at different times, and will include the agent’s own impressions and conclusions.” Id. at 558; see also United States v. Spencer, 618 F.2d 605, 606-07 (9th Cir.1980) (notes are not Jencks Act statements “when the notes are not complete, are truncated in nature, or have become an unsiftable mix of witness testimony, investigators’ selections, interpretations, and interpolations”); United States v. Lane, 574 F.2d 1019, 1022 (10th Cir.) (declining to require preservation and production of all investigative notes), cert. denied, 439 U.S. 867, 99 S.Ct. 193, 58 L.Ed.2d 177 (1978).

We believe the danger of distortion and incompleteness is especially relevant in this case. The border patrol agent’s radio transmissions share the same rough, incomplete nature as notes hurriedly jotted during surveillance. See Bernard, 623 F.2d at 557-58; Spencer, 618 F.2d at 606-07; see also United States v. Goldberg, 582 F.2d 483, 487-88 & n. 2 (9th Cir.1978), cert. denied, 440 U.S. 973, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979). They were never intended to provide a complete description of events that could serve as a basis for impeachment.

Bobadilla seeks to distinguish this case from cases involving surveillance notes on the ground that this surveillance transmission was intended to communicate information to others. He relies upon our decision in United States v. Carrasco, 537 F.2d 372 (9th Cir.1976), in which we held that a diary kept by a government informant about ongoing drug transactions was Jencks Act material. In Carrasco, the diary became a Jencks Act statement only when the author turned the pages over to a DEA agent for use as evidence. Id. at 375. The diary consisted of daily entries documenting the events leading up to the narcotics transaction and were signed or init-ialled on each page by the author as an accurate statement. In contrast, the spotty, impressionistic and incomplete on-site transmissions of the agent in this case do not amount to the same kind of narrative “statement” of a witness producible under the Jencks Act.

This court has consistently recognized a clear distinction between investigative interviews with witnesses that are intended to form the basis for evidence at trial, on the one hand, and surveillance observations on the other. Records of witness interviews are Jencks Act statements. Records of surveillance activities are not Jencks Act statements, even though they may be communicated to another agent. The distinction is illustrated by our decision in U.S. v. Andersson, 813 F.2d 1450, 1459 (9th Cir.1987) where we held that a list of sites visited by suspects under surveillance, a list which was handed over to another agent but subsequently lost, was not a Jencks Act statement required to be preserved in the event the surveillance agent testified. In contrast is our decision in United States v. Well, 572 F.2d 1383 (9th Cir.1978), which held that recorded interviews with potential witnesses were Jencks Act statements and had to be preserved. The agent’s surveillance transmissions in this case did not become “statements” under section 3500(e)(2) simply because they were recorded. Neither this court nor any other court has held that by recording conversations between its agents, the government transforms the conversations into potential Jencks Act “statements.” Yet that is what the dissent incorrectly declares the law to be.

We emphasize our holding is a narrow one. The recordings involved here may well have been discoverable pursuant to Fed.R.Crim.P. 16(a). In this case, however, no request for the material was made until after its routine destruction thirty days after the surveillance occurred. Indeed, at the time of the request, defense counsel was aware that the tapes had been destroyed. It is apparent that the purpose of the production request in this case was never to use the tape for impeachment purposes, but to prevent the agent who made the recording from being able to testify as to his observations on the day in question. The Jencks Act is not an appropriate tool for achieving that end.

Appellant’s Other Contentions

Bobadilla raises two additional issues on appeal which we address briefly. First, Bobadilla claims that the district court improperly gave a Jewell instruction. A Jewell instruction allows the jury to find the requisite knowledge where a defendant actually knows of facts indicating he is committing a crime and deliberately avoids learning the truth. United States v. Jewell, 532 F.2d 697, 698-99 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Such an instruction is appropriate where the surrounding circumstances “would have put any reasonable person on notice that there was a ‘high probability’ that the undisclosed venture was illegal.” United States v. Nicholson, 677 F.2d 706, 710 (9th Cir.1982). Here there was evidence from which the jury could infer Bobadilla’s deliberate ignorance: testimony established that the garbage bags gave off a strong odor of marijuana, that one of the bags was ripped, revealing the wrapped packages, and that the appellant was suspicious and thought the bags might contain drugs. We therefore conclude that the district court did not err in giving a Jewell instruction.

Bobadilla also contends that the district court erred in refusing to give a lesser-included offense jury instruction for simple possession of marijuana. To obtain such a lesser-included offense instruction, a defendant must identify the lesser-included offense and show that a rational trier of fact could convict on the lesser offense but acquit on the greater. United States v. Brown, 761 F.2d 1272, 1277 (9th Cir.1985). The district court properly found that a jury could not rationally find Bobadilla guilty of possession for personal use due to the large quantity of marijuana, its packaging, and Bobadilla’s own statements that he agreed to deliver the bags to Calexico for an amount of money.

AFFIRMED.