United States v. Jack Walter Fallen
498 F.2d 172
8th Cir.
1974
Check Treatment

*2 pistols four more and that on another Shaw, Clayton, Mo., M. Charles get occasion Fallen stated he could all appellant. ,38s ,25s Agent Young and wanted. Young Wesley further testified that the defend- Wedemeyer, Asst. U. S. D. sales, after “Don’t Louis, Mo., ant stated one of the Atty., appellee. St. get referring caught firearm,” with this Before VAN OOSTERHOUT purchased April revolver to a .38 MATTHES, Judges, Senior Circuit addition, allegedly told Fallen Judge. LAY, Circuit Agent get that he Trice could additional finally, Judge. LAY, revolvers, caliber Circuit .38 and .32 trying “tommy- get he was engaging Defendant was convicted of gun” agents. for the dealing business of in firearms license in Prior to trial had moved violation of 18 U.S. defendant 922(a)(1) 924(a). appeal, 16(a)(1) Feder C. to Rule On §§ in- contends defendant the trial court erred al Rules Criminal Procedure1 16(a)(1) 1. Rule court the Federal Rules of motion of provides Procedure as follows: order by representing by same time spect relevant statements the court concerning charged. that no crime statements existed. United Cf. Kasouris, States v. informed the court 1973); Wilkerson, “statements” not have did (6th Cir.), 456 F.2d 57 denied therefore defendant and S.Ct; 2506, U.S. in- motion to so the defendant’s *3 (1972). proper approach The spect. these circumstances is to reveal the to government’s contention is the It government court what statements the recorded no written or there existed has, giving opportuni thus the court the Rather, statements defendant. ty pass question to on the of whether or urges government oral the the they not purview within come the the of defendant about which statements Rule 16. agents’ state- testified were the overwhelming Second, agents’ authority the is written sum- that the ments contrary government’s position. to of these con- the of their recollection maries' Defendant’s oral not made the were statements to versations agents prior purview to and the of Rule at the time the statements within may 16(a)(1). sales constitute After had relevant statements the testi- government 16(a)(1). Barring under Rule showing over fied at the turned some possible their summaries to defense counsel for harmful effects flowing disclosure, Act, from under the Jeneks 18 these U. state- produced pursu- ments The should have been S.C. 3500. addition- § ally urges ant to the motion. that whether or not such As Profes- prior sor statements be to Moore observes: should disclosed trial is within the discretion of the trial The word “statements” as used showing court and that is no there (a)(1) subdivision is nowhere defined abuse here. discretion Some Rule. courts have erro- neously qualifica- read into the Rule a government’s think the tion that statements discoverable argument misses the mark in several re interpretive should be “verbatim.” If spects. foremost, First the needed, aid is resort should be had to properly of whether the trial court exer usage common of the term “state- actually cised its discretion is not before practice, ap- ments” government’s representation us. The to plies broadly any to almost material the trial court that no statements exist defendant, elicited from the written or ed foreclosed the court’s exercise inculpatory oral, exculpatory. open court, discretion. In the court has right rely upon to the truthfulness [1], Moore’s Federal Practice 16.05 ¶ government’s statement. We do In Crisona, United States v. find, claim, nor does the defendant (2d 1969), 397 U. government deliberately that the misled S. 90 S.Ct. gov the court. The record indicates (1970), the Second Circuit refused to ac good interpreted ernment in faith Rule cept government’s interpretation 16(a)(1) apply only to to written or 16(a)(1), Rule but instead chose fol to recorded statements of the defendant low supporting the cases defendant’s difficulty himself. The with this rea : view soning, however, construing is that attempted statute the The bases of these decisions have been prosecutor judge become language of amended Rule permit inspect copy government, existence of which is photograph any (1) relevant written or known, diligence the exercise of due recorded statements known, confessions made become copies thereof, defendant, within .... possession, custody or control (1968); L.Ed.2d Unit unqualified S.Ct. 16(a) contrast F.Supp. Rosenberg, 299 v. ed States definition of “statement” limited (S.D.N.Y.1969); United the Notes section Lubomski, F.Supp. Advisory indicate States Committee (N.D.Ill.1967); Io apply Rule intended amended (N.D.Ill. F.Supp. 629, by vinelli, 276 pre-arrest statements even 1967). during of his course a defendant mate- and was meant to broaden crime rially language 16(a)(1) of Rule scope available request to be quires defendant, that such statement ato material. This relevant obviously importance vital need compels fairness defense that production this rule. disclosure, guilty pleas and that contrast, 16(b) requires encouraged. thereby will materiality. cannot be *4 interpretation in of “statement” broad disputed state- own by 16(a) supported recent the is relevancy in the test and meet ments Project recommendation of the ABA produced. instance should have been this on Minimum Standards for Criminal court said in v. As the United States Justice, Relating Discov- to Standards 1969): (7th Isa, 413 F.2d 244 Cir. ery Trial 62 and Procedure Before clearly view, this In our subdivision (1969) a before that defendant receive authorizing any showing reveals that trial of his statements deny, to or defer the court restrict discovery or be made they must regardless of were to whom government. only upon by the It is prosecuting attor- made—whether lodged in grand jury that there ney, investigator, an * * deny the or a court discretion to allow ", anyone or It is also else. (a)(1). a defendant’s motion dis- intended statements be bluntly stated, has a defendant they More regardless how coverable of surreptitious- right permitting him to an order the obtained, are ly whether inspect or recorded to his own written voluntarily. or custo statements dy confessions the agree with these conclusions government, a show absent nothing language plain see government ing by the under Subdivi 16(a) or Advi- Rule sory the Notes of the (e). It is then the court is sion accompanying it Committee with to allow or re vested discretion justify imposing which would the lim- ject defendant’s motion.2 suggested by itation the Government. at 248. Id. Accord, Id. at 114-115. v. States agree govern Nor do we the 1969); Isa, (7th F.2d argument final summa ment’s States, Loux v. United product ries here fall within the work Cir.), exemption 16(b).3 393 U.S. of Rule See United proposed by 2. The 1972 amendments to Rule to offer in evidence made at the trial 16(a) would shall for substitute the word ar- the defendant whether before or after may: any response interrogation by the word rest to Upon request govern- person defendant then known to the defendant to inspect permit agent; ment shall to testi- and recorded copy any photograph: mony grand jury relevant of the defendant before charged. written made recorded statements relates to offense defendant, copies thereof, (emphasis added). within . . . possession, custody or control of government, 16(b) provides: of which existence 3. Rule known, diligence may of due exercise motion of a the court attorney known, become to the order government; permit copy inspect oral the substance of statement which intends dealing (S.D. Scharf, F.Supp. business firearms Reid, a license at 9409 Midland Avenue N.Y.1967); United States Wedgewood Estates, (N.D.Ill.1967). No. both F.R.D. 520 Overland, gov- Missouri. At turnWe presented relating ernment no evidence the de denial of erroneous whether Wedgewood No. 5 Estates. constituted motion fendant’s sponse to defendant’s motion Under error. however, particulars, bill this factual circumstances alleged government limited case to the prejudice. Defendant has find no sales 9409 Midland fail Avenue. We any possible harm flow concerning proof to see the lack of produce ing the failure from Wedgewood Es- transactions at No. 5 indicated, trial. before As statements any way prejudiced tates the defend- given defense the statements were the defense of his case. after Act counsel Jencks time, de testified. At that Entrapment III. ample opportunity had counsel fense study en the statements and thereafter urges Defendant the evi vigorous gaged in a cross-examination concerning entrapment dence was such thich he was able to of both that the court should have ver entered a (most expose discrepancies of a several acquittal dict of as a matter of law. testimony. nature) in technical their Upon review of the overall evidence we apparent that defense counsel did the entrap think it obvious that the issue of *5 destroy credibility best he could jury. ment was one of fact for the See agents. cases, In certain of 423, Russell, United States v. 411 U.S. preju late disclosure well constitute 1637, (1973). 93 S.Ct. 36 L.Ed.2d 366 present case, dicial error. In the how ever, do the statements not reveal IV. Reasonable Doubt Instruction might factual matter which have been The defendant asserts error in that by calling impeached additional witness the trial court instructed the that adducing proof physical or es of “a reasonable doubt means a substantial Although facts. we do not intend to di doubt and possibility not the mere in- of importance minish the of dis nocence.” Trial in this case was held in closure under these factual circum part October, the latter of 1973. This stances, specific we fail to find here a time, court 9, for the first on November prejudice of sufficient to over 1973, disapproved similar instruction turn the conviction. See United States Atkins, United States v. 487 F.2d 257 Battaglia, (7th Cir.), 279, (8th holding 1973), “[pjroof Cir. denied, cert. 90 S.Ct. U.S. guilt beyond of a reasonable doubt would (1969). 24 L.Ed.2d 97 greater require evidentiary seem to showing by proof the Government than II. Variance Between the Indictment guilt beyond of a substantial doubt.” and the Government’s Proof found, however, This court that since charged The indictment object- the instruction in Atkins was not knowingly engaged ed required as of photograph books, documents, papers, reports, memoranda, or or or tangible objects, buildings places, or other internal documents copies portions thereof, by government are which in connection custody possession, investigation prosecution within the or control with the government, upon by gov- ma- or of statements made teriality preparation prospective govern- of his defense ernment witnesses request (other defendant) and that Ex- is reasonable. ment witnesses than the cept provided (a)(2), except as in subdivision as provided this rule does not authorize in 18 § U.S.C. calling any pro- duty Proce witnesses Federal Rules of ducing any giving evidence. dure, the instruction did not constitute case context law, presumptions of the All Recently, plain in United States error. evidence, in favor from the are aside (8th Byrd, F.2d pre- and the defendant innocence 16, 1974), applied the same rule proven innocent until sumed be objection at the time was made where presumption guilty. inno- case, counsel ex the instant trial. In protects the defend- attends and cence cepted to the instruction on throughout has trial until it ground Atkins. The later enunciated in by evidence overcome met and been court, having the benefit district coming which in the case forward Atkins, objection, follow overruled and establishes shows ing g., pre-Atkins See, e. our decisions. beyond doubt. Un- guilt a reasonable Culp, United States v. 472 F.2d 459 guilty be- you find less Cir.), 93 S.Ct. U.S. doubt, you ac- shall yond a reasonable (1973). quit him. Winship, In S. re govern- 397 U.S. required that is not (1970), 25 L.Ed.2d possible Ct. Su beyond guilt prove ment preme proc Court found a denial of due of reasonable is one The test doubt. prose in a an accused ess when a doubt doubt is reasonable doubt. A convicted cution was a lesser sense upon and common reason based guilt beyond a standard than reasonable that would doubt kind of —the juvenile There was convicted doubt. act. person hesitate reasonable found evidence doubt beyond a reasonable Proof preponderance simple meet therefore, proof of such must, be Thus, it is clear standard. evidence you convincing would character crim standard the reasonable doubt upon willing rely it un- and act stature. If inal case is of constitutional Putting another hesitatingly. holding meant use of Atkins way, means a sub- doubt a reasonable *6 phrase, cre doubt” “substantial possi- mere and not the doubt stantial proof, then we a of ates lesser standard bility innocence. a would confronted with phrase “substantial It is clear that However, process. At denial of due “Beyond a once. doubt” was used “plain kins court error” refused to find explained reasonable doubt” otherwise in the use of the “substantial words “the kind of that would as doubt circumstances, doubt.” these it Under person to act” and reasonable hesitate should be clear that our court did not convincing “proof of character such significant deem it to set forth in its it willing rely you and act would be in Atkins mensions. instruction unhesitatingly.” upon it given was same as that We here. significant deem it set it forth its reviewing the instruc entirety: do, whole, as tion we must as single phrase sentence, isolating case, you as conveyed conclude that know. The burden to make out proper concept doubt. reasonable guilt of the defendant on trial in this holding not from our This is to detract upon Government; case is overwhelming light in Atkins. burden the Government assumes guilt present evidence of in the beginning throughout and carries however, error the instructions end, to the until it has met it we deem be harmless since could you guilt of the de- any way influenced the not have beyond fendant a reasonable doubt. finding guilt. imposes upon The law never a defend- Judgment a criminal case the burden or affirmed. MATTHES, OOSTERHOUT VAN Judges (specially concur- Circuit Senior

ring). judgment of convic- agree

We concur We be affirmed.

tion should except opinion Judge all issues Lay’s relating interpretation

the issue 16(a)(1), Rules Federal issue, we On such Procedure. Lay’s Judge agree determination error com- has been

that no not reach the issue do

mitted. We oral statement non-verbatim

whether incorporated agent’s report constitutes or con- or recorded statements “written by the defendant” as such fessions 16(a)(1). in Rule Such are used

words adequately briefed issue disposition argued. believe should await controversial issue issue where resolution

situation dispose

required the case and the argued by fairly briefed issue is

parties. America,

UNITED STATES Plaintiff-Appellee, Anthony

Bruno PIET and Delmar L. *7 Markham, Defendants-Appellants. 73-2137,

Nos. 73-2138. Appeals,

United States Court

Seventh Circuit.

Argued 1974. May 20,

Decided

Rehearing July 18, Denied