United States v. Scott Todd Noe, Meridith Rogers

28 when USF & G received run on part; October AFFIRMED in REVERSED and 24, (quoted part, REMANDED in Algernon’s letter of October with instructions. above). prior found that

The district court

company’s Algernon demand submit a loss, proof already

formal USF & G had fire

investigated the and received all the necessary process

information a claim. found, “although

The court defendant ulti- America, mately upon receiving insisted a formal UNITED STATES of Plaintiff-Appellee, loss, proof such a vain and useless serving only act to furnish a technical v. ground delay payment pro- until the NOE, Rogers, Todd Scott Meridith completed scribed form was and filed with Defendants-Appellants. Thus, USF & G’s office.” the court con- No. 86-8462. cluded that the October letter was suffi- given proof the sur- cient as a of loss United Appeals, States Court of rounding and circumstances. facts Eleventh Circuit. judge therefore determined day that the 60 July 1987. period began to run on October prejudgment accruing interest as оf De-

cember 1985.

Appellant maintains that the letter

of October 24th fell far short of what their required proof

contract for a of loss. We

agree. Algernon’s policy required that the

proof “signed to,” of loss be and sworn variety

contain of details not addressed in

the letter inter including, of October

alia, list of encumbrances on the

property; description changes of any occupation

use or property; and the origin

time and of the loss. While it

be true that USF & G did receive this

information from various sources

Algernon’s filing proof loss, of a formal requirements policy quite are

clear, and were not met. judge’s find

ing in regard clearly erroneous.

We therefore reverse the district court’s

August order, part, 18th and hold that

while the court did not abuse its discretion awarding prejudgment interest, USF &

G did not receive proof sufficient of loss

until November 1985. We therefore single

remand this issue with instructions

that the interest be awarded must recal be

culated, accruing January as of respects,

In all judgment other

district court is affirmed. Levine, Atlanta, Ga.,

David N. for Noe. Kearns, Stephanie Prog., Fed. Def. At- lanta, Ga., Rogers. for Cowen, Stephen S. Atty., Mary U.S. Jane Stewart, Atlanta, Ga., plaintiff-appellee. RONEY, Before Judge, Chief EDMONDSON, KRAVITCH and Circuit Judges.

KRAVITCH, Judge: Circuit Codefendants S. Todd Noe and Meredith Rogers were jury convicted after a trial of conspiracy to methamphetamine distribute in violation of U.S.C. 846 and of distri- § methamphetamine in bution of violation of appeals 841.1 Noe U.S.C. his convic- § primarily ground tions on the that the trial improperly court admitted into evidence on tape recording telephone rebuttal a of a drug conversation between an undercover agent and an individual identified agent as Noe. Noe contends that admission constitutes reversible error due provide failure to response pre-trial ‍​‌​‌​​‌‌‌​​​‌​‌‌​​‌‌​​‌​‌‌​‌​​​​‌​​​​​​​‌‌​‌‌​‌‌‍to Noe’s dis- request covery pursuant filed to Rule 16(a)(1)(A) Federal Rules of Criminal Rogers appeal Procedure. does not her conviction, challenges distribution but her conspiracy unsupported by conviction as upon based the evidence an errone- ous instruction. We reverse Noe’s only charged one 1. Noe was and convicted of two counts victed of distribution count. distribution; charged Rogers and con- violation, arrangement they negotiating, due were she convictions re- Rogers’ conspiracy plied conviction. did but affirm she not know the details of transaсtions,

their but that “Scott” was ‘“good at agents what he does.’” The I. BACKGROUND dealings testified that their with Noe and government’s case both co- Rogers ended at Noe’s insistence after largely on defendants rested Rogers agents following noticed one of the agents Drug of the two undercover federal her in traffic. (DEA). Administration The Enforcement defense, Testifying in his Noe denied agents during testified that several times that he was involved in of the events Noe, span they of a week met whom the agents recounted or that he had “Scott,” they knew as at various Atlanta spoken agents. ever with the He contend- nightspots possibility to discuss the visiting ed that he family with in Costa assisting establishing them in Noe’s a clan- during Rica the entire time that the events methamphetamine laboratory. destine alleged place. sup- were to have taken In They early one of the testified at meet- port testimony, of this Noe introduced into ings requested sample they a of metham- passenger receipt evidence a for a round- in- phetamine, subsequently and that Noe trip airline ticket to Costa Rica reserved in eye- structed one of them to retrieve an attempted his name. Noe to introduce oth- glass lying case that was on the at table support contentions, er evidence to his but agent sitting. Noe and the The which were the court ruled the evidence inadmissible.2 methamphet- case was found to contain rebuttal, agent inspect- amine. testified that he One On offered into paid tape ed the contents of the case and then evidence recording telephone a of a $1,000. agents The Noe further testified conversation in which one of the undercov day they agents that the next asked Noe for an- DEA er and a man identified sample equipment agent agreed other and for a list of as Noe to meet the day next up and chemicals needed to a set metham- at an Atlanta According bar. to the According phetamine laboratory. agents, to their tape corresponded the date of the testimony, day them during informed later to the time which Noe claimed that they get sample should and list he was in objected Costa Rica. Noe to ad “Meredith,” referring to appellant recording mission of the ground on the Rogers. agents The were familiar provide with had failed to him another, Rogers through unrelatеd under- timely before trial his re despite investigation they 16(a)(1)(A) cover quest, pursuant were then conduct- to Rulev ing. Procedure, Federal Rules of Criminal all Although statements the defendant. agents Rogers The met follow- conceding that the should have been ing day. stating After that she had some- Noe, provided asserted “Scott”, thing Rogers for them from hand- that the failure to do so was inadvertent. ed them envelope containing a metham- recording The district court admitted the phetamine sample and a list of materials. into evidence. According agents, Rogers remarked hoped sample that she quantity “ II. NOE sufficient, explaining: ‘I had to cut it chunk____ keeps out of a challenging Scott all of his admission into evi money marijuana my conversation, taped telephone and stuff at dеnce of the ” house agents primarily when he is in town.’ Noe relies on United States v. they Rogers (11th Cir.1986) testified that when asked 799 F.2d 649 curiam). (per whether “Scott” could be trusted in In Rodriguez, panel of this appeal, story. 2. On Noe asserts that the district court further corroborated his alibi Because of refusing violation, committed reversible error in to admit our resolution of Noe’s Rule 16 we passport urges his into evidence. Noe evidentiary need not consider his claim. passport entries contained in the would have rebut, full opportunity court reversed a conviction where the would result in a miscarriage government, justice. Fed.R.Crim.P. violation 16(a)(1)(C), to the defend- failed to disclose government’s arguments, however, had that officers taken from ant materials purpose misconstrue bоth the of the crimi after his the defendant’s wallet arrest. nal discovery concept rules and the of actu Rodriguez court 799 F.2d at 652. The con- prejudice resulting al from violations of discovery violation cluded that sub- government. those rules As the rights defendant’s stantially prejudiced the noted, purpose court of Rule when, cross-examining the defendant 16(a) protect is “to rights the defendant’s concerning that he his denial maintained And, to a fair trial.” Id. at contrary Colombia, contacts in at- government’s contentions, the de torney telephone referred to names gree to which those suffer as a numbers that were found the wallet. Id. result of discovery violation determined “[b]y at 653. The court reasoned that fail- simply by weighing all the evidence ing to turn what it over for told introduced, by considering but rather how papers, personal were his the the the violation the affected defendant’s abili government deprived of [the defendant] ty present to a defense. See United States any prepare chance to his case to meet that 561, Pascual, (5th v. 606 F.2d 565-66 Cir. Id. evidence.” 1979)3; Padrone, v. United States 406 (2d Cir.1969) government urges curiam).

The that F.2d Rodriguez (per 561 compel of government does not reversal Noe’s convic- Where the at trial introduces by Under a violation Rodriguez, tions. the undisclosed evidence that tends to under government discovery aspect of the criminal rules mine one the of defense—as oc only conviction if curred in Rodriguez warrants reversal of a existence of ac —the prejudice prejudice the defendant shows to tual substan- often will turn on the Moreover, rights. Rodriguez recog- strength remaining tial of the elements of the government’s Here, however, nized that the of preju- existence “actual case. the strength dice will often turn on the of the evidence introduced that at government’s Id. at 652. tacked very case.” The the foundation of the defense here, government argues strategy. contrast As Rodriguez the court ob weak, served, the relatively largely to the circumstan- the failure of to “ presented tial evidence Rodriguez, by the disclose made the de ‘statements] against case Noe was based on the exten- fendant is so serious detriment preparation direct the two sive of undercover for trial and the defense of Furthermore, agents. charges DEA Noe’s serious alibi de- criminal that where it is Thus, largely apparent, here, fense was uncorroborated. defense strate [the] according to government, gy may by the to have been determined the fail unsupported [disclose], Noe to ure “fabricate” an alibi to there should be a new ” story prosecution’s to conform Padrone, trial.’ (quoting evi- F.2d at 651 dence, 561).4 permitting without 406 F.2d at Circuit, pose "protect 3. The Eleventh the en banc of decision Rule 16 is to the defendant’s Prichard, City right Bonner v. 661 F.2d to a fair trial.” 799 F.2d at 654. This (11th Cir.1981), precedent adopted as understanding purpose decisions of Rule 16 was prior principal holding former Fifth Circuit rendered to basis for the October compels 1981. and it of this the result case. More over, Rodriguez pur court’s statement of the rejects pose fully supported by apparеntly The 4. dissent this of Rule 16 was statement by predecessor Rodriguez "non-binding decisions of See, its court as dicta of this court and court. Pascual, suggests approach— e.g., this circuit” 606 F.2d because it United States v. (5th Cir.1979); requires 565-66 also United States result—that dissent considers see v. Martinez, (11th Cir.1985) Although 611 n. "mistaken.” See at infra ("[T]his implications, prosecutor disapprove dissent its in which the was not a case discovery hardly statement court has hidden a statement of can be ... dicta,” "non-binding spring only it discounted as the defendant on him in the for it was pur central to condemn that that court’s conclusion that the middle of a trial. We sort of theory Under advanced the Noe’s discovery request or availed itself of government, prosecution, by design authority its to demand the details of inadvertence, could withhold discoverable story, alibi it would not now be before this inculpatory until the evidence defendant as- invoking vague court justice. notions of strategy a defense serted based on the Likewise, had Noe been aware of apparent evidence, nonexistence trial, recording prior to “might his counsel other, viable, foreclosing possibly thus de- well have advised not to take the [him] strategies. fense Unless a court conclud- Padrone, stand.” 406 F.2d at 561. The ed, introduced, based on all the evidence government, however, comply failed to that the case the defendant was with discovery request Noe’s and did not strong,” “not violation would disclose the recording until after Noe be considered harmless. We refuse to developed had implemented his trial rule, adoрt encourage such a for it would strategy. Consequently, precisely the “trial ambush” that cannot now claim that the discovery viola- Federal Rules of Criminal Procedure were tion was harmless. In United States v. designed prevent. See United States v. Pascual, supra, predecessor our court was Martinez, (11th Cir. confronted with a situation in which the 1985). government had introduced into evidence a previously undisclosed directly letter which appeals “justice” incriminated two codefendants. uphold guilty Noe’s misplaced. verdicts are government there apparently argued, as it Although certainly does not have a here, does that the discovery violation did right to story, “fabricate” an alibi the Fed- the defendants’ substantial eral Rules provide of Criminal Procedure rights becausе the evidence overwhelming- right him a to discover all statements that ly guilt. demonstrated ‍​‌​‌​​‌‌‌​​​‌​‌‌​​‌‌​​‌​‌‌​‌​​​​‌​​​​​​​‌‌​‌‌​‌‌‍their he court officials, and, made to law enforcement stated: correspondingly, to devise a defense strate-

gy on the basis of the evidence It would be argument disclosed.5 hard to make an same rules any degree to with plausibility of demand alibi defense a defendant in- use of this letter prior produc- without 12(a). tends to assert. Fed.R.Crim.P. seriously Had tion did not prejudice the de- complied either fully with fendants in exercising option their to tactic."); Arcentales, evidence," United States v. 653, 532 Rodriguez, F.2d ment’s] 799 F.2d at 1046, (5th Cir.1976) (finding preju 1050 no infringed and right his Fifth Amendment not to dice in violation because "the incul testify. prepared Once Noe had his trial strate- patory during statement became known gy testify, and elected to no amount of addition- government’s case-in- chief’ and not after preparation al time could have cured the effects lying ”[t]he [had in wait been] government’s previously use of undis- with impeach statements that could the De closed request evidence. His failure to a contin- testify"). fendant quently, if he decided to Conse Similarly, given uance thus is irrelevant. agree even were we to with the dis impeach- the use of the undisclosed evidence for Rodriguez sent that court and cases this purposes ment opportunity denied Noe the to "judicial were mistaken as a matter of prepare his defense to meet the policy,” panel nevertheless would be evidence, any recording distinction between the by precedent bound ing their absent an interven tangible at issue here and the evidence at issue Supreme decision Court or Underlying in also is irrelevant. en E.g., banc court of this circuit. Flowers v. dissent’s prej- conclusion that Noe did not suffer States, 759, (11th United 1985); 764 F.2d 761 Cir. rights assumption udice to substantial is the Prichard, see City also Bonner v. right prepare prose- to a defense to meet the supra. cution’s evidence is not itself substantial. This escape binding Nor can the dissent effect however, assumption, flatly Rodriguez by contradicted distinguishing its facts. Con- precedents, trary our as is the dissent’s contention dissent’s reconstruction of Noe’s arguments, prejudiced that Noe’s were Noe does not not because contend that the dis- covery gave "devastating” violation him to his insufficient time to defense. See prepare challenge Pascuаl, authenticity supra; supra. Rather, recording. govern- he claims that the ment’s In certain use of the situations where undisclosed undisclosed evidence evi- for im- peachment purposes perjured opportuni- denied him dence is offered to rebut alibi testimo- ty "prepare govern- ny, might his case appropriate remedy. to meet [the mistrial be the preparation plead guilty coconspirator’s their whom the statement is of fered were conspiracy, trial. members of the

(3) that the statement was made during the course and in conspir furtherance of the was a written undisclosed letter] [The acy.” James, United States v. 590 F.2d allegations plea guilty to the contained 575, (5th Cir.) (en banc), denied, cert. in the indictment. 442 U.S. 99 S.Ct. 61 L.Ed.2d 283 (1979). Contrary Rogers’ proposed in A new trial with this nail the сoffin struction, however, the rule does not fur lid, disclosed, fully may likely result now require jury ther indepen make an guilty. in another verdict of Neverthe- dent determination of the existence of a less, the vindication of Rule and no- conspiracy before it consider the ex prosecutors tice to this Circuit that trajudicial coconspirators statements of ad it, they effectively comply must mitted into evidence. See United States v. leaves no choice but to reverse the con- Monaco, (11th Cir.1983).7 victions and remand for a new trial. Because the requested by Rog instruction 606 F.2d at 565-66. We have no choice substantially ers was not a correct state here to do the same.6 but law, ment of the the refusal of the court to give that instruction cannot constitute re III. ROGERS See, e.g., versible error. United States v. conviction, appealing conspiracy her (11th Lopez, Cir.1985) Rogers contends that the verdict was based (failure give requested charge warrants upon jury an erroneous instruction to the only requested reversal if the instruction unsupported by it and that was evidence. substantially correct and was not ad reject We both claims. charge given, dressed in the actually and if seriously impaired presen its omission Rogers requested that the court defense), tation of an effective cert. de jury instruct the not to consider the state —nied, —, U.S. 106 S.Ct. ments of one codefendant the other (1986). L.Ed.2d 767 govern unless the first found that the beyond ment had shown reject Rogers’ reasonable doubt We also claim that the existence of a conspiracy. This re the evidence support was insufficient to instruction, however, quested contrary conspiracy Rogers argues to her conviction. 801(d)(2)(E) the of this law circuit. Rule that the introduced no evi permits connecting the Federal Rules of Evidence alleged an dence her to Noe’s extrajudicial coconspira statement of one scheme methamphetamine. to manufacture tor against to be considered as evidence Yet conspiracy neither the indictment nor coconspirator if only government’s presentation another the trial court of its case prosecution depended upon first that the any determines has direct link between shown, by preponderance Rogers manufacturing evidence and the scheme. independent Rather, extrajudiсial charged Rogers statement: the indictment “(1) existed, (2) conspiracy conspired methamphetamine. that the to distribute coconspirator government argued and the defendant As the at trial and on evidentiary 6. claims that because his alibi defense now at trial and then rul contend surprise," reversal.”). “has lost the element of he is entitled ings require acquittal discovery to as an a result of the viola legal support propo tion. He offers no for this requested The instruction further misstated sition, and we dismiss We it without merit. applicable by suggesting conspir- law that a similarly reject contention acy could not be found absent an overt act in right by failing that Noe waived his to a reversal conspiracy. furtherance When the objecting to move for a in mistrial addition to to drug charge conspiracy involves a in violation tape recording. the introduction of the An ob of 21 U.S.C. is not re- § jection properly preserves evidentiary ruling quired prove E.g., an overt act. United States appellate review. Saunders v. Chatham Cf. Alberti, (11th Cir.1984). v. 727 F.2d Comm'rs, County Bd. (11th Cir.1984) ("[C]ounsel cannot remain silent guilty policy required by prece- and is neither our Rogers could be found appeal, conspired conspiracy if she dent nor Rule 16. such a only single distribu- make another to 16(a)(1)(A) “[u]pon Rule states that re methamphetamine to the undercov- tion of quest of a defendant the shall agents. er permit inspect copy the defendant to and must, in the evidence Viewing, as we any ... relevant ... recorded statements government, light most favorable 16(d)(2) made the defendant....” Rule Brooks, F.2d v. е.g., States United provides that Cir.1983), 1273, 1277(11th conclude that we any during If at time the course of the support evidence to was substantial there proceedings brought it is to the attention Rogers conspired to jury’s finding that party of the court that a failed has agents methamphetamine. distribute rule, comply may with this the court Rogers only told them not testified that party order such containing the metham envelope continuance, inspection, grant or or “Scott,” phetamine sample came from but prohibit party introducing evi- sample had cut the also that she herself disclosed, dence it enter “chunk.” The thus had suffi from a just. other order it deems Rog from which to find that cient evidence agreed with someone else to forward ers language indicates, govern- As this methamphetamine аgents ment’s violation of Fed.Rule Crim.Proc. Rogers from which to infer that was aware 16(a)(1)(A) automatically prohibit did not the material contraband. at least that the use of the undisclosed evidence at trial. conviction, Rogers’ conspiracy consequent Rather, lay relief for this violation within ly, must be affirmed. the discretion of the trial court. United v.

States (11th Cir.1986). therefore, appeal, IV. CONCLUSION On trial court’s decision to admit the re- foregoing analysis, Based on the the con- cording despite the Rule 16 violation can be REVERSED; appellant Noe are victions of only reversed for abuse of discretion. No appellant Rogers the convictions of are AF- such abuse of discretion occurred in this FIRMED. case. tape recording The admission of the EDMONDSON, into Judge, Circuit concur- ring part dissenting part: necessary evidence was enable the appar- to rebut the defendant’s I Rogers’ concur the affirmance of ently perjurious defense. alibi Noe testi- conviction but from the dissent reversal of fied in his defense that he inwas Costa Noe’s conviction. 10, 1985, Rica from November until No- majority today holds that the district 23, government prof- 1985. The vember by admitting tape court erred on rebuttal tape recording fered in rebuttal of a recording refuting Noe’s sole defense— 14, telephone conversation on November Noe’s alibi that he in had been Costa Rica 1985, Agent between DEA Peterson and an during drug According transactions. Noe, apparently interlocutor who was in majority, the district court re- which Peterson and the interlocutor quired tape tо exclude the because Atlanta, planned to meet at a bar in Geor- government prior failed to disclose it to gia night meeting that and referred to a trial in violation of Fed.Rule Crim.Proc. night” at another Atlanta “last bar. Over 16(a)(1)(A). Although agree I ma- with the objection, defendant’s the district court ad- jority violated Rule tape recording. tape mitted the The 16, disagree required I that this violation highly probative strongly sug- It evidence. tape recording exclusion undisclosed gested during that Noe was Atlanta tape, from evidence. Exclusion of the I believe, contrary judicial alleged drug would be to transactions and— sound time of 3101, 3105-06, (1986); concedes —devastated his de- as Noe alibi L.Ed.2d States, Henderson v. United fense.1 (5th Cir.1956).2 Quite simply, the inter A should not be able to take defendant seeking est the truth here —where the testify rely stand and to and then to on directly rebuttal evidence so refuted de Crim.Proc. 16 to exclude evidence Fed.Rule sole fendant’s defense —overrode the policy strongly testimony which indicates that his considerations justify which sometimes ex perjurious. on a crucial issue was To have of clusion evidence for a violation of Fed. recording tape excluded from evi Rule truth-seeking Crim.Proc. 16.3 The today majority dence —as the holds was trial, believe, function of the I in and of required unjustifiably have inter —would justified itself tape admission of the truth-seeking fered with the function of recording into evidence. felony A Noe’s criminal trial. trial is not game every slip prose in which why some Another reason I believe that accused; fact, gain tape cutor is a for the admission of the was not abuse of felony dainty are their nature trials discretion is that Noe preju did not suffer ought proceedings expected rights. not be to dice to substantial A showing of purpose be. fundamental a criminal to substantial is a prereq trial is to arrive at a true determination of uisite for reversal of a district court’s exer See guilt the defendant’s or innocence. admitting cise of discretion in evidence not — Clark, Rose v. —, U.S. S.Ct. disclosed in violation of Indeed, point during argument impeach testimony, provided 1. at one oral defendant’s state- court, before this Noe’s counsel conceded that trustworthy); ment is otherwise accord Brown recording States, demonstrated that Noe had v. United 356 U.S. 78 S.Ct. response questions lied. In to direct from this (1958) (by taking 2 L.Ed.2d 589 stand and court, Noe’s counsel answered: defense, testifying in his own defendant waives any way prove Court: there alibi with [I]s privilege against compelled fifth amendment self-incrimination; tape recording in evidence? scope of waiver is deter- sir, Noe’s Counsel: I Well think it’s a fair by scope cross-examination). mined of relevant say statement to that that record- recognize powerful Such cases considera- ing pretty well devastated— favoring tions exclusion of evidence must some- they Court: I understand that because found times be overridden to enable the lying. out that he’d been testimony. to rebut a defendant’s As the Su- essence, Noe's Counsel: In I think that’s fair Walder, preme Court reasoned in statement____” thing say is It one that the Government argument, Later in the oral Noe’s counsel was cannot make ‍​‌​‌​​‌‌‌​​​‌​‌‌​​‌‌​​‌​‌‌​‌​​​​‌​​​​​​​‌‌​‌‌​‌‌‍an use affirmative of evidence issue, equivocal stating more on this that he did unlawfully quite It is obtained. another to not know whether Noe had lied. say illegal that the defendant can turn the event, In this dissent is not based on a method which evidence in the Govern- Rather, determination that Noe in fact lied. it possession ment’s was obtained to his own my truth-seeking is based on conclusion that the advantage, provide himself with a shield justified function of a criminal trial the admis- against contradictions of his untruths. Such highly probative sion of evidence that tends to perversion would [a be a result] the Fourth directly testimony refute defendant’s on a crit- Amendment____[T]here hardly justification ical issue. letting affirmatively the defendant resort Prichard, City 2. In Bonner v. 661 F.2d 1206 perjurious testimony in reliance on the (11th Cir.1981) (en bаnc), adopted this court ás disability challenge Government's his credi- precedent all decisions of the former Fifth Cir- bility. Appeals cuit Court of decided to October Walder, 347 U.S. at 74 S.Ct. at 356. 1, 1981. majority today approach takes an diamet- contexts, rically opposed to many the above cases—it concludes govern- courts impeach that the need to exclude evidence is ment to or rebut a criminal defend- particularly strong a defendant testifies. I ant’s with evidence that would other- after See, majority’s approach believe e.g., that is mistaken. wise be inadmissible. Walder v. United States, 62, 354, Certainly, majority's approach is not re- 347 U.S. 74 S.Ct. 98 L.Ed. 503 (evidence (1954) quired by Supreme precedent. Court I would obtained in violation of fourth impeach non-binding amendment admissible to decline to follow the dicta of this defendant’s York, 222, testimony); non-binding Harris v. New 401 U.S. 91 circuit or decisions of other cir- 643, (1971) (statement they suggest S.Ct. 28 L.Ed.2d 1 ob- cuits to the extent that such an approach. tained in violation of Miranda admissible to

612 tape, requested Fed.Rule Crim.Proc. 16. United States v. fronted with the Noe nei 649, (11th F.2d 652 Cir. Rodriguez, Having 799 ther a mistrial nor a continuance. 1986). request mistrial, failed to continuance complain prej Noe cannot now that he was appellate his Noe stressed in briefs and udiced lack of time to attack more effec argument to this court that his sole in oral tively belatedly tape disclosed record alibi and that his sole defense at trial was ing. Scruggs, See United States v. trial, granted, if defense at a new would be (5th Cir.1978) (holding F.2d Moreover, asserted that alibi. he the ad- prejudice defendant failed to show to sub tape mission of the “devastated” his alibi stantial from admission of evidence his trial and would do so at a defense at not disclosed violation of Fed.Rule Crim. trial, granted. new if 16, noting “significantly, Proc. counsel assertions, light of Noe’s own longer did not ask for a recess or a continu majority’s conclusion that Noe suffered might ance so that he effectively more appears substantial incorrect. evidence.”); meet see also United example, suppose For James, (5th States v. complied had with Fed.Rule Crim.Proc. 16 Cir.), denied, cert. 419 U.S. 95 S.Ct. tape and disclosed the to Noe before trial. (1974); 42 L.Ed.2d 144 United States differently What could Noe have done at Bailey, (8th v. 1100-01 Cir. might trial? Noe asserts that he have de- 1977).5 defense, testify. cided not to His sole Also, concession, argues Noe’s counsel that if his own was and is the he had alibi tape known that he about the and realized was Costa Rica from November lying, Noe was he Usually, approached 10 to would have November 23. the alibi de- fense, matter, plea bargaining differently. practical as a But Fed.Rule requires the designed Crim.Proc. 16 was testify. defendant to Even if to enable a he had not stand, criminal defendant to mislead taken he still would have had to his own counsel and then attempt prove subsequently preju claim the alibi and still would have had dice because the counsel did tape to contend with the record- not advise him plea bargain.6 ing that him in shows Atlanta on Novem- concession, By 13 and 14. ber his own majority rely Noe and the heavily on tape devastating is to the alibi defense. Rodriguez, United v. States 799 F.2d 649 argues (11th Cir.1986). however, that if the had earlier, tape disclosed the he materially would have different in at least four re prepare First, more time challenge spects. Rodriguez requested a mis authenticity tape. requested But when con- trial whereas Noe neither a con that, original 4. Noe’s appeal argued preserves brief on evidentiary at trial issue for review once the ing, revealed the record- appeal. thoroughly agree general on I with this "strategy his and entire defense were dev- proposition, gen but neither Saunders nor this astated” and that "the had no choice but to proposition particular prob eral addresses the Brief, id., Appellant’s p. p. convict." see abo complaining lem in this case: Noe is of lack of argued 20. Noe further in his brief that prepare challenge authenticity time to prosecutor Appellant’s has ruined chance recording, requested but he neither a at a fair trial even if this court should order a mistrial nor a continuance that would have cor Appellant’s new trial. All of well laid defense rected this lack of time. strategy ... is rendered useless at a new trial. surprise. He has lost the element of Lewis, (D.C. In United States v. 511 F.2d 798 Government now knows his entire defense. Cir.1975), suggested the court that admission of change He cannot his or his de- evidence not disclosed in violation of Fed.Rule acquittal fense. His one chance for cru- may prejudice Crim.Proc. 16 a defendant be elly him____ maliciously away taken every cause "not ... defendant ‍​‌​‌​​‌‌‌​​​‌​‌‌​​‌‌​​‌​‌‌​‌​​​​‌​​​​​​​‌‌​‌‌​‌‌‍chooses to tell attorney his what he remembers” and the de Brief, Appellant’s pp. 29-30. attorney therefore full fense lacks information Id., plea bargaining. majority approaching when 5. The cites Saunders v. Coun Chatham Commbsioners, (11th ty approach Board F.2d at 802. I think the D.C. Circuit’s 728 F.2d 1367 1984), proposition objection Cir. for the that an is mistaken and decline to Lewb follow it. give readily identifiable, him time to are nor a mistrial to not tinuance not un- challenge effectively is, more record derstand this decision. The fact how- Second, against ever, ing. Rodriguez Rodriguez the case had no chance to against much weaker than the case determine whether or not those names Third, Rodriguez prej Noe.7 demonstrated and numbers were actually from his wal- while, else’s, as or udice to substantial has let someone or to think about discussed, already totally why wallet, been Noe fails to the numbers were in his if rights. they demonstrate to his indeed were. Rodriguez, 799 surprised, F.2d at 653. A

Fourth, prosecutor’s violation of Fed. ordinary easily citizen could be uncertain 16(a)(1)(C) in Rodriguez Rule Crim.Proc. a tangible whether document or item was failing —by tangi to disclose documents or wallet, in his car or easily house and could likely surprise more un ble items —was difficulty explaining have on short notice fairly prosecutor’s a defendant than the why or how such an item came to be there. 16(a)(1)(A) violation of Fed.Rule Crim.Proc. present failing by in the case to disclose contrast, person a knows whether or tape recording. In Rodriguez, phone not he has made a arrange call to a рrosecutor surprised by the defendant ask meeting in concerning drugs. Atlanta Noe ing the defendant about certain names and did not need a chance to determine whether which, telephone prosecutor numbers or not he had phone made such a call. He hinted, in had been found defendant’s wal knew whether not he had. Nor did Noe saying let. defendant was reduced to why need time to think about he made such They “I peo don’t know them. could be call, phone a if he did.8 For all these ple.” The Rodriguez court observed that: reasons, Rodriguez materially is a differ- Anyone who has found in prohibit a wallet or ent case which did not admission purse telephone a name and tape recording present number that in the case.9 Rodriguez requires This court stressed that cаse and reversal of Noe’s convic- government’s case was weak. The evidence against Rodriguez consisted of a co-defendant’s tion: noncompliance We believe that with an or- leading agents Rodriguez actions in —subse- copy by der to furnish a of a statement made quently repudiated by the co-defendant as a the defendant is so serious a detriment to the setup; alleged por false an statement —“uno preparation for trial and defense of serious by Rodriguez; beeper uno” —made Rodriguez; found on charges apparent, criminal that where it is as Rodriguez’s and evidence that assets here, strategy may that his defense have been Rodriguez, did not correlate with his income. comply, determined the failure to there contrast, prosecutor’s F.2d at 652. In should be a new trial. against excluding case Noe—even re- (quoting 799 F.2d at 654 United cording considerably stronger. Two DEA —was Padrone, (2d Cir.1969)). States v. Moreover, 406 F.2d 560 agents they repeatedly spoken testified that had majority asserts that this dissent person phone and over the with Noe over a excerpt mischaracterizes the above from Rodri- day period concerning drug several transac- guez binding holdings as well as of other cases Agent positively tions. Marsh identified Noe. as mere dicta. Agent Peterson at first was not one "hundred First, excerpt Rodriguez the above from does percent" person sure that Noe was the holding not constitute the of that case. The dealt, he whom had having but later testified that after excerpt part Rodriguez descrip- is court’s dаys observed Noe for a few at trial he opinion tion of the Second Circuit’s in Padrone “positive” person. Appar- that Noe was the actually quotation By and is from Padrone. ently, Agent identify Peterson’s initial failure to describing quoting from another circuit’s definitively Noe at trial was caused the fact more, holding, without this court does not nec- significantly appearance altered his essarily adopt opinion that other circuit’s as its before trial. own. holding I believe that the is that taped phone 8. The introduced the when the case a defendant conversation in its rebuttal case. On surrebut- weak, tal, government surprises defendant Noe testified that he did not make tele- (not referring tangible phone to documents or items call that was recorded and that hе was in evidence) ordinary admitted in to which Costa Rica at the time. easily have diffi- citizen could be uncertain and notice, govern- majority following culty explaining 9. The ex- on short contends cerpt Rodriguez represents holding by failing ment violated Rule 16 earlier to dis- Accordingly, asserts that the district court respectfully also I dissent from by excluding error committed reversible the reversal of Noe’s conviction. passport allegedly from his evidence defense.

supported his alibi Because the

tape recording devastates the alibi defense event, any error in the exclusion considered passport must be harmless. argument justify

This cannot reversal. dissent,

By I do this not condone the

prosecutor’s prose in this A conduct case. deliberately

cutor who violates Fed.Rule subject ‍​‌​‌​​‌‌‌​​​‌​‌‌​​‌‌​​‌​‌‌​‌​​​​‌​​​​​​​‌‌​‌‌​‌‌‍should sanc Crim.Proc. 16 be In re & ADVERTISING MARKETING personally. tions him Personal DEVELOPMENT, INC. against prosecutorial sanctions officers would be a more effective deterrent and Appeal No. 87-1092. harmful side have less effects than exclud ing importance evidence of critical to the United States Appeals, Court of question guilt factual of the defendant’s Federal Circuit. innocence. June adjudication guilt A defendant’s pros- should not be reversed because of the where, here, discovery

ecutor’s violation prejudice

the defendant suffered no there-

by. The district court did not abuse its by admitting

discretion highly proba- directly refuting

tive evidence Noe’s alibi majority’s holding

defense. The today dis-

torts Fed.Rule Crim.Proc. 16 from an en-

gine for the of truth into an

instrument for obfuscation. There is no

good reason to do that. items, tangible majority close such documents or defend- cites two cases from this circuit ant suffers such that reversal of his suggest which do the need to exclude conviction and remand for a new trial is re- government greater evidence is after a defend- course, quired. holding binding Of Martinez, ant testifies. United States v. 763 F.2d But, applicable. exрlained where as I have (11th Cir.1985); 1314-15 United States v. dissent, Rodriguez the text of this the facts of are Arcentales, (5th Cir.1976). materially different from the facts of the suggestions But these were not determi- —which present holding Rodriguez case. The is sim- respect actually litigated nations in to an issue ply applicable present case. necessary to be decided in the cases—are Second, assertion, contrary majority’s Martinez, government mere dicta. In did properly this dissent characterizes as "non-bind- not violate Rule 16 at all and introduced the ing previous suggestions by dicta” all this circuit disputed evidence in its case-in-chief. In Arcen- that "the need to exclude is evidence tales, disclosed the evidence particularly strong a defendant testifies." after days put several befоre the defense on its case. supra, (emphasis See footnote 3 of this dissent Pascual, Neither nor Arcentales involve Martinez original). Certainly, quotation the above issue in this case: whether it is abuse of say does not that the need to discretion to intro- government testimony strong- exclude becomes highly probative duce evidence to rebut er once a defend- defendant testifies. Nor does United Pascual, (5th Cir.1979), States v. ant’s on a critical issue. Pascual, majority which the government substantially cites. the facts of are Because this case cases, introduced in its case-in-chief evi- different from earlier none of the deci- dence which it had failed to disclose majority actually sions cited bind this trial in violation of Rule 16. Pascual neither involves nor discusses in panel majority to reach the outcome that the any way the need to has selected for this case. exclude evidence after a defendant testifies.

Case Details

Case Name: United States v. Scott Todd Noe, Meridith Rogers

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 15, 1987

Citation: 821 F.2d 604

Docket Number: 86-8462

Court Abbreviation: 11th Cir.