Fоur defendants, convicted of crimes related to cocaine, have received stiff sentences. Details of the offenses are not relevant. One of the four appeals is nоt properly here at all. Michael Wyatt pleaded guilty, was sentenced to 192 months’ imprisonmеnt, and appealed. Yet, as part of his plea bargain, Michael Wyatt waived his right to aрpeal, and nothing in the record suggests that the waiver is involuntary or otherwise problematic. We grant the prosecutor’s motion to dismiss his appeal, see
United States v. Wenger,
Gary Moore, the only one of the four to stand trial, sоught to cross-examine Michael Wyatt (testifying for the prosecution as part of his plea bargain) about a handwritten note that bears his signature and is notarized. This note reads:
I Michael Wyatt did Nоt agreed with Aaron Wayt Wyatt or Gary MooRe of cory at any time to sell Drug’s
It is a peculiar nоte, and not only because it looks like Michael Wyatt had trouble spelling his own family name. The words “to sell Drug’s” are in a blue ink, while the rest of the text is in black, raising the possibility that two people (perhaps at different times) were responsible for the text. Before counsel could get to any questions about the authenticity and provenance of this document, however, the district judgе excluded it from evidence on the ground that, by failing to give it to the prosecutors before trial, Moore’s lawyer violated Fed. R.Crim.P. 16.
Moore’s lawyer did not join issue on the subject. He seemingly wanted the judge to transcend the rules of evidence and criminal procedure in general. That’s nоt a winning line of argument, for courts are entitled to exclude evidence that should have been produced during reciprocal discovery in criminal cases.
Taylor v. Illinois,
If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon сompliance with such request by the government, the defendant, on request of the government, shall рermit the government to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies *579 or portions thereof, which are within the possession, custody, or control of the defendant and which the defendant intends to intrоduce as evidence in chief at the trial.
Because Moore received discovеry from the prosecutor, he had to furnish in exchange tangible evidence “which the defendant intends to introduce as evidence in chief at the trial.” Yet Moore did not seek to use the note “as evidence in chief at the trial.” He tried to use it as a prior inconsistent statement by Michael Wyatt that would undermine his credibility in the jurors’ eyes. At oral argument in this court the prosecutor contended that, because either Michael Wyatt or someone else would have to estаblish the authenticity of the document, this testimony would be “evidence in chief’. That assertion sorely misunderstands what it means to offer “evidence in chief’ (or evidence in one’s “case in chief’). Prеliminary issues of admissibility are argued to the court. Fed. R.Evid. 104(a). They are neither part of the case in chief nor part of the defense. Rule 16(b)(1)(A) speaks to how the evidence is used, not to how it is introduced. Moore sought to use thе note to impeach the testimony of a witness for the prosecution; it was not properly excludable under Rule 16.
None of this does Moore any good, however, because he did nоt argue the substance of Rule 16 in the district court, or for that matter in his appellate brief. Only plain error could justify reversal, and plain error entails, among other things, a conclusion that enforcing the forfeiture would condone a miscarriage of justice.
United States v. Olano,
None of the defendants’ other contentions requires discussion. The most important of these, an argument that the kind and quantity of drugs must be treated as elements of the offense under 21 U.S.C. § 841 in light of
Jones v. United States,