United States v. Siraj

• Court: Court of Appeals for the Second Circuit
• Decided: July 9, 2008
• Docket: 07-0224-cr
• Status: Published

Opinion

07-0224-cr USA v. Siraj

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2007 6 7 8 (Argued: June 16, 2008 Decided: July 9, 2008) 9 10 Docket No. 07-0224-cr 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 - v.- 19 20 SHAHAWAR MATIN SIRAJ, 21 22 Defendant-Appellant. 23 24 - - - - - - - - - - - - - - - - - - - -x 25

26 Before: JACOBS, Chief Judge, Straub, Circuit 27 Judge, and Jones, District Judge.* 28 29 Appeal from a judgment of conviction entered on January

30 18, 2007 in the United States District Court for the Eastern

31 District of New York (Gershon, J.). Among other challenges

32 to his conviction, the appellant contends that he was

33 entitled, under Federal Rule of Criminal Procedure

* The Honorable Barbara S. Jones, of the United States District Court for the Southern District of New York, sitting by designation. 1 16(a)(1)(B)(i), to discover police reports containing the

2 substance of statements he made to an undercover police

3 officer. For the following reasons, and for those reasons

4 discussed in an accompanying summary order, we affirm.

6 MARSHALL L. MILLER (David C. 7 James and Todd Harrison, on the 8 brief), Assistant United States 9 Attorneys for Benton J. 10 Campbell, United States 11 Attorney, Eastern District of 12 New York, Brooklyn, NY for 13 Appellee. 14 15 ROBERT J. BOYLE, New York, NY 16 for Appellant. 17 18 DENNIS JACOBS, Chief Judge: 19 20 Shahawar Matin Siraj (“Matin”) appeals from a judgment

21 entered January 18, 2007 in the Eastern District of New York

22 (Gershon, J.) convicting him of various offenses arising out

23 of a conspiracy to bomb the Herald Square subway station in

24 midtown Manhattan. Because most of Matin’s arguments are

25 defeated by well settled law, we consider them in an

26 accompanying summary order. We write to resolve a single

27 issue of first impression: whether written police reports

28 that memorialize oral statements made by a defendant to an

29 undercover officer must be produced upon demand under

2 1 Federal Rule of Criminal Procedure 16(a)(1)(B)(i). We hold

2 that they do not.

4 BACKGROUND

5 Between November, 2002 and April, 2004, Matin spoke

6 many times with an undercover New York City Police (“NYPD”)

7 officer who operated under the assumed name of Kamil Pasha.

8 After speaking with Matin, Pasha would relay Matin’s

9 statements to his NYPD handler; and the handler would create

10 a written report containing the substance of Matin’s

11 statements. The government concedes that it did not give

12 the NYPD reports to Matin in response to his pre-trial

13 discovery request under Federal Rule of Criminal Procedure

14 16.

15 Matin argues that he was entitled to get the reports

16 under subsection (a)(1)(B)(i) of Rule 16, and that he was

17 prejudiced by the government’s failure to produce them.

19 DISCUSSION

20 I

21 In determining whether the prosecutor was required to

22 disclose the NYPD reports under Federal Rule of Criminal

3 1 Procedure 16, we begin with the relevant portion of the

2 text:

3 (A) Defendant’s Oral Statement. 4 Upon a defendant’s request, the 5 government must disclose to the defendant 6 the substance of any relevant oral 7 statement made by the defendant, before 8 or after arrest, in response to 9 interrogation by a person the defendant 10 knew was a government agent if the 11 government intends to use the statement 12 at trial. 13 14 (B) Defendant’s Written or Recorded 15 Statement. Upon a defendant’s request, 16 the government must disclose to the 17 defendant, and make available for 18 inspection, copying, or photographing, 19 all of the following: 20 21 (i) any relevant written or recorded 22 statement by the defendant if: 23 24 • the statement is within the 25 government’s possession, 26 custody, or control; and 27 28 • the attorney for the government 29 knows--or through due diligence 30 could know--that the statement 31 exists; 32 33 (ii) the portion of any written 34 record containing the substance of any 35 relevant oral statement made before or 36 after arrest if the defendant made the 37 statement in response to interrogation by 38 a person the defendant knew was a 39 government agent . . . . 40 41 Fed. R. Crim. P. 16(a)(1) (emphases added). Matin was

4 1 (concededly) unaware that Pasha was a government agent, and

2 does not contend on appeal that he was entitled to the

3 reports under subsections 16(a)(1)(A) or (a)(1)(B)(ii).

4 Rather, he characterizes his statements--as embodied in the

5 NYPD reports--as “written or recorded statement[s] by the

6 defendant,” and argues that they were therefore discoverable

7 under Rule 16(a)(1)(B)(i).

8 Rule 16(a)(1)(B) distinguishes between two types of

9 “Written or Recorded” statements. Subsection (i) makes

10 discoverable all “relevant written or recorded statement[s]

11 by the defendant” that the prosecutor could reasonably know

12 are within the “government’s possession, custody, or

13 control.” Subsection (ii) makes discoverable certain

14 portions of “written record[s] containing the substance of

15 any relevant oral statement” made by the defendant--“if the

16 defendant made the statement in response to interrogation by

17 a person the defendant knew was a government agent.”

18 Matin argues that he was entitled to his statements

19 under subsection (i) because the “substance of [his]

20 relevant oral statement[s],” Fed. R. Crim. P.

21 16(a)(1)(B)(ii), became “written or recorded statement[s]

22 [of] the defendant” for purposes of subsection (i), when

5 1 they were reduced to writing in the NYPD reports.

2 We decline to adopt Matin’s proposed reading of Rule

3 16. Accord United States v. McClure, 734 F.2d 484, 493

4 (10th Cir. 1984). Two closely related rationales inform our

5 holding.

6 First, Matin’s reading creates redundancy in the

7 statute. If the substance of a defendant’s oral statements

8 could be discovered under subsection (i) as soon as it is

9 embodied in a written record, then every statement

10 discoverable under subsection (ii) would also be

11 discoverable under subsection (i). Matin’s proposed

12 construction would therefore violate the “‘well-settled’

13 principle ‘that courts should avoid statutory

14 interpretations that render provisions superfluous,’” In re

15 Nassau County Strip Search Cases, 461 F.3d 219, 227 (2d Cir.

16 2006) (quoting State St. Bank & Trust Co. v. Salovaara, 326

17 F.3d 130, 139 (2d Cir. 2003)).

18 Second, by explicitly designating as discoverable only

19 those written memorializations of oral statements made in

20 response to interrogation by a known government agent under

21 subsection (a)(2)(B)(ii), Rule 16 implicitly excludes from

22 its scope written memorializations of other oral statements

6 1 such as those at issue here. Adopting Matin’s reading of

2 the term “written or recorded statement” would undermine

3 that purpose by rendering discoverable any oral statement

4 later embodied in a written report within the government’s

5 “possession, custody, or control.”

7 II

8 Our holding is not inconsistent with United States v.

9 Johnson, 525 F.2d 999, 1003-04 (2d Cir. 1975), which held

10 that a government agent’s written summary of a defendant’s

11 oral statement was discoverable as a “written or recorded

12 statement” under the 1966 version of Federal Rule of

13 Criminal Procedure 16. Johnson does not control this case

14 because the 1966 version of Rule 16 differs from today’s

15 version in a crucial respect: it contained no analog to

16 subsection (a)(1)(B)(ii). And it is upon subsection

17 (a)(1)(B)(ii) that our holding rests.

19 CONCLUSION

20 For the foregoing reasons, and for those stated in the

21 accompanying summary order, we affirm.