US v. Lanoue
Case Date: 12/15/1995
Court: United States Court of Appeals
Docket No: 95-1140
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February 8, 1996 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________ No. 95-1140 UNITED STATES, Appellee, v. LAWRENCE M. LANOUE, Defendant. ____________ ERRATA SHEET The opinion of this court issued on December 15, 1995, is amended as follows: Cover Sheet: Change "Defendant." to "Defendant, Appellant." January 11, 1996 UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT ____________________ No. 95-1140 UNITED STATES, Appellee. v. LAWRENCE M. LANOUE, Defendant, Appellant. ____________________ ERRATA SHEET The opinion of this Court issued on December 15, 1995, is corrected as follows: On page 13, line 21 - delete "0" at the beginning of the line. On page 46, line 3 - insert the word "doubt" between "reasonable" and "that". UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT ____________________ No. 95-1140 UNITED STATES, Appellee. v. LAWRENCE M. LANOUE, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Bownes, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ ____________________ David L. Martin, for appellant. _______________ Margaret E. Curran, Assistant United States Attorney, with whom ___________________ Sheldon Whitehouse, United States Attorney, and James H. Leavey, ___________________ ________________ Assistant United States Attorney, were on brief for appellee. ____________________ December 15, 1995 ____________________ BOWNES, Senior Circuit Judge. Appellant Lawrence BOWNES, Senior Circuit Judge. ____________________ M. Lanoue (Lanoue) appeals his convictions and sentence for interstate transportation of a stolen motor vehicle, 18 U.S.C. 2312 (Count V), interstate transportation of a firearm with an obliterated serial number, 18 U.S.C. 922(k) (Count VI), and conspiracy to commit federal offenses, 18 U.S.C. 371 (Count I). Lanoue contends that he is entitled to a new trial on all counts because the trial court abused its discretion by refusing to declare a mistrial when the government cross examined a critical defense witness with Lanoue's own statements which were intercepted in violation of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2510-2521 (Title III), and then withheld from him in violation of Fed. R. Crim. P. 16(a)(1)(A). Lanoue also contends that there was insufficient evidence to convict him of Counts I and VI, and that the trial court improperly enhanced his sentence based on conduct of which the jury had acquitted him. We vacate Counts I and V and remand them for a new trial, affirm Count VI, and order a sentence on Count VI of 60 months imprisonment. I. BACKGROUND I. BACKGROUND A. Relevant Facts A. Relevant Facts 1. The Government's Case -2- 2 The government's theory at trial was that Lanoue and his co-defendant Albert Cole (Cole) stole a 1986 Oldsmobile Firenza, and that they and their co-defendant Patrick Meade (Meade) used the car in an attempted robbery of an armored car courier. The government's case consisted primarily of the testimony of fourteen of the approximately fifty FBI agents and Rhode Island State police officers who conducted a massive land and air surveillance of Lanoue and the Oldsmobile and assisted in his arrest. On December 17, 1993, eight FBI agents attached a tracking device to a 1986 Oldsmobile Firenza located in the lot of American International Leasing in Worcester, Massachusetts. On December 19, 1993, Lanoue and Cole brought the Oldsmobile to a farm in Pascaog, Rhode Island. The farm's owner, Kenneth Gareau (Gareau), was a friend of Cole's who repaired cars. He testified that Cole asked him to repair the front end, that he said he could get to it in a week or so, that it "looked like" Cole took the license plate off the Oldsmobile and put it in the trunk, and that Cole and Lanoue then departed. American International Leasing reported the Oldsmobile stolen on December 21, 1993. Agents conducting surveillance from an airplane observed Lanoue and Cole return to the farm on the morning of December 23, 1993, and drive -3- 3 the Oldsmobile to the Ames Plaza in Bellingham, Massachusetts, where they met Meade. While the defendants were parked between a pizza parlor and a liquor store in a lot adjacent to the Ames lot, an unmarked armored car, that appeared to be an ordinary Ford Aerostar van, parked in front of the main entrance to the Ames store. A uniformed courier exited the van and entered the Ames store. Several minutes later, Lanoue and Cole drove from the adjacent lot to the Ames lot and parked. Lanoue was arrested as he walked towards the main entrance of the Ames store. He had a loaded 38 caliber Colt revolver with an obliterated serial number in his waistband. One of the arresting officers testified that Lanoue immediately said: "I am Mitch.1 You got me. I am gone for life. I have a piece." Another testified that when he asked Lanoue where the other vehicles were, he stated: "You know everything. That's why you're here. I am here alone." Another agent testified that after Lanoue was taken into custody he said, "I wonder who the rat was on this job." And another agent testified that Lanoue said that he would die in prison no matter how long his sentence was because he was 72 years old. Cole was arrested in the Oldsmobile, which bore a stolen license plate. The ignition was not "popped" and the keys were in it. Meade was arrested in his own car on the ____________________ 1. Lanoue was known as Mitch. -4- 4 other side of the lot with a loaded Smith and Wesson 36 caliber revolver in his pocket. -5- 5 2. The Defendant's Case Although the law enforcement witnesses did not offer to explain how they came to attach a tracking device to the Oldsmobile and follow its and Lanoue's movements thereafter, cross examination revealed that an informant had provided FBI Agent Brosnan, the case agent, with information that Lanoue and others planned to steal the car and use it in an armored car robbery. The defense theory was that the informant was Richard Laraviere (Laraviere), and that the information he provided and upon which the investigation and prosecution rested, was false. According to the defense, Lanoue bought the Oldsmobile from Laraviere, who then falsely informed the FBI that Lanoue was planning to steal the car and use it in an armored car robbery in order to obtain favorable treatment on theft charges pending against him in Massachusetts. The defense suggested that the government was eager to believe Laraviere and assemble a small army to arrest Lanoue because Lanoue had been found not guilty in a case tried by the same prosecutor in 1991. The defense emphasized that the government had not called Laraviere to testify, although he was the only witness who could corroborate its theory that Lanoue stole the Oldsmobile. Lanoue testified and called Charles Carron (Carron) as a witness to corroborate his own testimony. They both -6- 6 testified in effect as follows. On December 17, 1993, Lanoue was helping Carron remove debris from his house when Laraviere arrived. Laraviere was a millionaire who owned real estate and had once owned a used car dealership. He previously had offered to sell Lanoue a car which Lanoue declined to buy. On this occasion, Lanoue mentioned that he wanted to buy a car for his daughter. Laraviere responded that one of his tenants had abandoned an Oldsmobile that he wanted to sell and said that it was located at American International Leasing in Worcester, which he implied he owned or partially owned. The three drove to American International Leasing, Laraviere obtained the keys from an employee there, and they took the Oldsmobile for a test drive. Carron testified that upon their return to the lot, he observed Lanoue and Laraviere having a discussion and then saw Lanoue remove money from his wallet and hand it to Laraviere. Lanoue testified that he and Laraviere agreed on a price of $500, that he gave Laraviere a down payment of $200, and that they agreed that Lanoue would pay the balance and take the car on Sunday, December 19. Lanoue testified that on December 19, he and Cole drove to American International Leasing in Lanoue's truck, that he paid Laraviere the $300 balance and then drove off in the Oldsmobile with Cole following in the truck. Lanoue -7- 7 testified that as he drove the Oldsmobile back to Rhode Island, he noticed that there was something wrong with the front end. He and Cole therefore took the Oldsmobile to Gareau to be repaired. On December 23, Lanoue and Cole picked up the car on the way to the Ames Plaza where they planned to go Christmas shopping. Lanoue soon found out that Gareau had not worked on the car and took it to another garage, but the person he wanted to look at it was not there. He and Cole then proceeded to the Ames Plaza where they met Meade. As Lanoue walked towards the Ames store where he planned to buy a watch, he was arrested. After Lanoue rested, Cole testified in his own behalf, confirming Lanoue's account of events on December 19 and 23. Lanoue testified that he carried a gun for protection, explaining that his life had been threatened before and that the police had laughed when he reported it because he had a criminal record. Lanoue acknowledged that he had cleaned the revolver, denied that he had obliterated its serial number, but did not deny that he knew it was obliterated. Lanoue admitted to stating, "I have a piece on me," and that when an agent asked him who was with him he responded that he was alone, meaning that he was alone when he was arrested. He denied making the other statements government witnesses attributed to him. -8- 8 Lanoue and Carron also gave testimony indicating that Laraviere provided false information in this case in order to gain favorable treatment on pending criminal charges. Carron testified that Laraviere had once stored boating equipment in his garage. When Carron later learned that it was stolen, he reported it to the police, who removed the property and told him that Laraviere had a reputation for claiming that property he had stolen had been stolen by someone else. Lanoue testified that Laraviere had told him shortly before his own arrest that he had been indicted on fifty-seven counts of theft in Massachusetts, and that he would soon have to begin serving a two-year sentence for those charges pursuant to a plea, unless he could do something to avoid it. To that end, Laraviere offered to pay Lanoue to frame the witness against him in that case. Lanoue testified that he believed Laraviere had not gone to jail because he falsely informed the government that Lanoue planned to steal the Oldsmobile and rob an armored car. Carron testified that he had visited Lanoue once after his arrest while Lanoue was awaiting trial at the Donald W. Wyatt Detention Center in Central Falls, Rhode Island. Shortly thereafter, two FBI agents and a state police detective visited him, refused to leave his home, subpoenaed him to testify at Lanoue's trial, and threatened -9- 9 that if he did not testify against Lanoue, they would see to it that his pension check and his girlfriend's disability check or her job at the post office were taken away. -10- 10 B. Proceedings Below B. Proceedings Below Lanoue, Cole and Meade were charged in a six-count redacted indictment.2 All three were charged in Count I with conspiracy to commit federal offenses, 18 U.S.C. 371; in Count II with conspiracy to interfere with commerce by robbery, Hobbs Act, 18 U.S.C. 1951; in Count III with attempt to interfere with commerce by robbery, Hobbs Act, 18 U.S.C. 1951; and in Count IV with using and carrying a firearm during and in relation to an attempt or conspiracy to commit robbery, 18 U.S.C. 924(c)(1). Count V charged Lanoue and Cole with interstate transportation of a stolen motor vehicle, 18 U.S.C. 2312, and Count VI charged Lanoue alone with interstate transportation of a firearm with an obliterated serial number, 18 U.S.C. 922(k). Counts III, IV and V also charged the defendants with aiding and abetting. 18 U.S.C. 2. The trial began on October 24, 1994. On November 4, 1994, the jury convicted Lanoue of Counts I, V and VI, acquitted him of all robbery-related charges, and acquitted his co-defendants of all charges. On November 10, 1994, Lanoue moved for judgment of acquittal on Counts I and VI, ____________________ 2. The grand jury returned the original indictment on January 5, 1994. A redacted indictment was filed when one count was dismissed by the government with leave of court on August 17, 1994. -11- 11 which was denied on December 19, 1994. On January 13, 1995, the court sentenced Lanoue to 175 months in prison. II. DISCUSSION II. DISCUSSION A. The Discovery Violation A. The Discovery Violation Lanoue contends that his convictions should be reversed because the prosecutor cross examined Carron with Lanoue's own recorded statements which the government concedes it failed to disclose in violation of Fed. R. Crim. P. 16(a)(1)(A) and the pre-trial discovery order. Rule 16(a)(1)(A) provides in relevant part: Upon request of a defendant the government must disclose to the defendant and make available for inspection, copying, or photographing: any relevant . . . recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government . . . . The trial court's pretrial discovery order required the government to disclose "[a]ny statements of the defendant subject to disclosure pursuant to Rule 16(a)(1)(A)," and "[w]hether the government counsel's file indicates that any wire or oral communications have been intercepted." Lanoue contends that he was incurably prejudiced by the government's use of his statements and that the trial court therefore erred in refusing to declare a mistrial. -12- 12 1. Cross Examination of Carron with Lanoue's Recorded Statements Carron's cross examination proceeded in three parts. On Thursday, October 27, the prosecutor opened the first part by accusing Carron of threatening Laraviere: Sir, didn't the FBI tell you the reason they were at your premises was because you threatened an informant in this case? Did you ever threaten Mr. Richard Laraviere? You ever threatened [sic] anyone? Carron answered "No" to each of these questions. The prosecutor attempted to impeach Carron's denial by asking if Lanoue had told him that Laraviere was the informant in this case, if Lanoue had then demanded that he visit him in prison, and whether he and Lanoue had discussed Laraviere during the visit. Carron confirmed that Lanoue had invited him to visit him in prison in August of 1994 and that he did so, but denied that they had discussed Laraviere. Carron exhibited a poor memory for dates, but otherwise held up well during this part of the cross examination. When Carron stated that he could not swear that he had known Lanoue for fifteen years but was sure he had not known him for thirty years, the prosecutor began reading Lanoue's words from a document while, in the court's words, "brandishing" it at the witness: Q Did Mr. Lanoue ever tell you that he has known you for thirty years? -13- 13 A No, he never did. Q Did Mr. Lanoue ever tell you not to trust the cops. They know who the informant is and that's why he wanted you to go on August the twenty-first to meet him? A No. Q He didn't tell you, sir -- specifically, on August the 20th of 1994, did Mr. Lanoue say to you, "Let me tell you something. You don't trust the cops. You should know that. We forced it out of them. They got the informant from up north near the Worcester area"? Mr. Martin: I object. A I don't remember that. The court did not sustain the objection, but directed counsel to approach the bench. The prosecutor admitted that he had been reading Lanoue's statements from a transcript of a recorded telephone call that Lanoue had made to Carron from the Wyatt Detention Center while awaiting trial, and that he had not disclosed it. The court asked the prosecutor whether the document corroborated his questions and he replied that it did. Defense counsel objected to the use of the conversation because the government had withheld it in violation of Fed. R. Crim. P. 16 and the court's pre- trial discovery order, and requested a copy of the transcript and a recess during which he could review it. The prosecutor argued that defense counsel was not entitled to a recess and that he was permitted to use the conversation because Carron had committed perjury, it was retrieved in connection with a -14- 14 separate investigation of witness intimidation, and it was not the fruit of a wiretap. The court directed the prosecutor to continue his cross examination on another subject, did not admonish him, strike the questions or testimony, or give a curative instruction. Part two of Carron's cross examination proceeded. In contrast to his apparently confident answers in the first part of his cross examination, Carron disavowed any ability to fix a date or time period on any event, expressing concern that the prosecutor was attempting to trap him into committing perjury. He backed away from important parts of his direct testimony, for example, now denying that he had actually seen Lanoue hand Laraviere money after the test drive. After the court excused the jury for a lunch recess, defense counsel moved for a mistrial, arguing that the prosecutor had violated Fed. R. Crim. P. 16(a)(1)(A) and the pre-trial discovery order, that Carron's credibility had been irreparably damaged, and that he had been deprived of the opportunity to prepare Carron with the statement or make an informed decision whether to call him as a witness. The prosecutor argued that he had no obligation to produce the conversation under Fed. R. Crim P. 16(a)(1)(A) or the pre- trial discovery order because it did not become relevant until Carron testified inconsistently with it and it was not -15- 15 a wire intercept. The court ordered an evidentiary hearing for the following day, and excused the jury until the following Monday. At the hearing on Friday, October 28, Agent Brosnan, the FBI agent in charge of the case against Lanoue, testified that on August 22, 1994, he requested and received from the Wyatt Detention Center a cassette tape of a conversation between Lanoue and Carron that took place on August 20, 1994, which he had transcribed and provided to the prosecutor. Agent Brosnan testified that, since Lanoue's arrest and indictment and as part of his investigation of the pending case, he had gone to the Wyatt Detention Center and been permitted to listen to various tapes in an effort to hear and obtain recordings of Lanoue's telephone conversations with Carron, but that he found none. In April of 1994, he requested that the facility keep track of all calls made by Lanoue. He was told that it would be done by spot checking, but was not notified of any of Lanoue's calls other than that of August 20.3 In the August 20 conversation, Lanoue told Carron that he had discovered during a recent hearing in his case that Laraviere was the source of the government's ____________________ 3. The primary purpose of the hearing was to resolve whether the conversation was intercepted in violation of Title III. Jennifer Egan, Chief of Programs at the Wyatt Detention Center, also testified at the hearing, but only on issues relevant to the defendant's Title III claim. -16- 16 information. Lanoue did not refer to Lariviere by name but as "your friend, the millionaire," the informant from Worcester, and the only person who could have provided information about the Oldsmobile on December 17. He said that Laraviere had not gone to jail as expected, advised Carron to be careful of Laraviere, and asked Carron to visit him in prison. Lanoue made statements about the Oldsmobile such as, "They know all about the car, they know about everything," "you know I bought that car," and "that car there that I bought at American Motors." At the conclusion of the evidentiary hearing, the defense again argued for a mistrial. The government conceded that it had violated Fed. R. Crim. P. 16, but argued that the error was made in good faith and that the defense was not prejudiced. On the following Monday, October 31, the court ruled that the prosecutor's violation of Fed. R. Crim. P. 16(a)(1)(A) did not warrant a mistrial or other remedial action. In response to the defendant's request for a curative instruction explicitly referring to the prosecutor's questions of the previous Thursday, the court generally instructed the jury that if counsel's questions "indicate that a particular thing is so, you shouldn't accept that as being established unless and until you hear evidence that the thing is so." -17- 17 The third part of Carron's cross examination ensued. Contrary to his representation that he would not refer to the conversation again, the prosecutor again asked Carron whether he had had any conversations about Laraviere with Lanoue after Lanoue's arrest. The court overruled the defendant's objection, and Carron again answered that he did not recall. Carron again expressed fear that the prosecutor was trying to make him perjure himself. He refused to answer "yes" or "no" to questions concerning the events he had testified to on direct examination -- that Lanoue wished to purchase the car for his daughter, that Laraviere had obtained the keys at the dealership, that they then took the car for a test drive, and that he saw Lanoue give money to Laraviere thereafter -- instead answering "evidently," "that was my impression," "I assume so," "I don't recall," and "I don't recall nothing." 2.Analysis We review the trial court's handling of the government's discovery violation for abuse of discretion. United States v. Hodge-Balwing, 952 F.2d 607, 609 (1st Cir. ______________________________ 1991). In order to obtain a reversal on appeal, Lanoue must show that the trial court abused its discretion in ruling on the effect of the discovery violation. United States v. _________________ Tajeddini, 996 F.2d 1278, 1287 (1st Cir. 1993). We will _________ order a new trial if the discovery violation caused prejudice not cured by the trial court's remedy. -18- 18 The trial court found that no mistrial or other remedy was warranted because: (1) the prosecutor acted in good faith; (2) the purposes of Rule 16 were not subverted by the withholding and use of the undisclosed evidence; and (3) the defendant was not prejudiced. See United States v. ___ _________________ Gladney, 563 F.2d 491, 494-95 (1st Cir. 1977). _______ a. Did the prosecutor act in good faith? The court found that the prosecutor had made a good faith error in judgment. Such a finding depends in large measure on whether the prosecutor's explanation was credible and is therefore entitled to considerable deference. United ______ States v. Levy-Cordero, 67 F.3d 1002, 1013 (1st Cir. 1995). _______________________ In this case, the prosecutor's explanations for withholding the statement were both factual and legal. To the extent the court relied on the reasonableness of the prosecutor's legal arguments, we temper the usual deference accorded purely factual findings. Cf. RCI Northeast Servs. Div. v. Boston __ _____________________________________ Edison Co., 822 F.2d 199, 203 (1st Cir. 1987) ("a finding of __________ fact predicated upon, or induced by, a misapprehension of law is robbed of its customary vitality"). We conclude that the trial court's finding of good faith was not supported by the facts or the law. First, the court gave weight to the fact that the government had not received the statement until two months -19- 19 prior to trial. But because the government's obligation to disclose the defendant's recorded statements is a continuing one, Fed. R. Crim. P. 16(c), that was a factor militating against rather than in favor of a finding of good faith. Cf. __ Tajeddini, 996 F.2d at 1287 (no bad faith where prosecutor _________ was unaware of defendant's statement until the day before he disclosed it to defense counsel three days before trial). Instead of disclosing the statement as soon as he received it from Agent Brosnan, two months prior to trial, the prosecutor never disclosed it at any time before using it before the jury. Second, the court thought that there was a "colorable question" as to whether the statement had to be produced because it was a "mixed statement" by the defendant and a potential witness, so that the government only had an obligation to produce the statement "to the extent it was a statement of Mr. Lanoue." But this theory, even if "colorable," does not explain the prosecutor's actions. "[S]tatements discovered by means of electronic surveillance" are within Rule 16(a)(1)(A). Fed. R. Crim. P. 16 advisory committee's note. And the rule contains no exception for a defendant's recorded statements on the basis that they comprise one side of a conversation. The court's pre-trial order required disclosure of any statements subject to disclosure under Rule 16 and "[w]hether the government counsel's file indicates that any wire or oral communications -20- 20 have been intercepted." Whether or not Carron's side of the conversation was required to be disclosed under Rule 16, the transcript in its entirety should have been disclosed for purposes of determining its admissibility before trial. See ___ United States v. Latham, 874 F.2d 852, 864 (1st Cir. 1989) ________________________ (it was error for the government not to have provided defendant with tape recordings containing conversations between defendant and government witnesses). If the prosecutor genuinely believed that Carron's side of the conversation was not discoverable, the reasonable and only permissible course would have been to seek redaction of Carron's words.4 See Fed. R. Crim. P. 16(d)(1). Because ___ Rule 16 could not reasonably be read to allow the government to withhold Lanoue's side of the conversation, the "mixed statement" rationale did not support a finding of good faith. Third, the court found that the prosecutor genuinely believed that the statement was not relevant within the meaning of Rule 16. The statement was relevant if it had "any tendency to make the existence of any fact that [was] of ____________________ 4. Nothing precluded disclosure of Carron's side of the conversation. He was not a government witness, 18 U.S.C. 3500(a), and his side of the conversation was not grand jury testimony. United States v. McMahon, 938 F.2d 1501, 1504-05 _________________________ (1st Cir. 1991) (explaining rule that defense is not entitled to the grand jury testimony of a defense witness until after cross examination as being based on the need for grand jury secrecy). -21- 21 consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Relevance is to be interpreted broadly in the context of Rule 16(a)(1)(A). See Fed. R. Crim. P. 16 ___ advisory committee's note (rejecting narrow interpretation of defendant's right to discover own statements). The rule gives a "defendant virtually an absolute right" to his own recorded statements "in the absence of highly unusual circumstances that would otherwise justify a protective order." 2 C. Wright, Federal Practice and Procedure 253, ______________________________ at 46-47 (1982) (internal citations and quotation marks omitted). See also United States v. Bailleaux, 685 F.2d ___ ____ ____________________________ 1105, 1114 (9th Cir. 1982) (adopting broad interpretation of relevance as applied to defendant's statements as a matter of practicality); United States v. Haldeman, 559 F.2d 31, 74 n. _________________________ 80 (D.C. Cir. 1976) (en banc) (disclosure of defendant's statements is "practically a matter of right even without a showing of materiality"), cert. denied, 431 U.S. 933 (1977). ____ ______ The statement obviously was relevant. Lanoue made statements about the Oldsmobile that were arguably both inculpatory and exculpatory.5 He discussed the informant, who was a potential government witness, and made statements ____________________ 5. On appeal, Lanoue does not press his contention at trial that the conversation was required to be disclosed as exculpatory evidence. -22- 22 relevant to the defense theory that the government's case rested on false information provided by that informant. See ___ United States v. Noriega, 764 F. Supp. 1480, 1494 (S.D. Fla. _________________________ 1991) (conversations of defendant recorded in prison about potential government witnesses were relevant within the meaning of Rule 16(a)). Even assuming that the government could not envision the statement's relevance before trial, it certainly understood its relevance when defense counsel outlined the defense theory in his opening statement. The reasons proffered by the prosecutor in support of his belief that the statement was not relevant -- that it was obtained in a separate investigation of alleged witness intimidation, that the conversation did not become relevant until Carron testified inconsistently with it, and that he did not expect Carron to testify about Laraviere -- were without basis in fact or law. Rule 16(a)(1)(A) contains no exception for a defendant's recorded statements if they are obtained in connection with a separate investigation, so long as they are relevant to the pending case. "[A]cceptance of the language for just what it says is dictated by the fundamental fairness of granting the accused equal access to his own words, no matter how the government came by them." United States v. __________________ Caldwell, 543 F.2d 1333, 1353 (D.C. Cir. 1974), cert. denied, ________ ____ ______ 423 U.S. 1087 (1976). Moreover, it appears that Agent -23- 23 Brosnan obtained the conversation in connection with his investigation of the pending case. For at least six months prior to trial, he had been attempting to obtain telephone conversations between Lanoue and Carron as part of his investigation of the case pending against Lanoue. The prosecutor stated that he knew about and approved that activity, and that immediately after obtaining the August 20 conversation, he subpoenaed Carron to testify against Lanoue in the pending case. It is therefore difficult to credit the "separate investigation" rationale. In any event, the conversation contained Lanoue's statements that were relevant to the charges pending against him and his defense to those charges. Those statements therefore were required to be disclosed by the plain terms of Rule 16. As to the prosecutor's contention that the conversation did not become relevant until Carron testified inconsistently with it, the government's duty to disclose a defendant's relevant recorded statements does not hinge on whether or when the government uses the statement. Only an oral statement to a known government agent is required to be disclosed "if the government intends to use that statement at trial." Fed. R. Crim. P. 16(a)(1)(A). But even that type of statement is required to be disclosed regardless of whether the government intends to introduce it in its case-in-chief, use it for impeachment, or introduce it in rebuttal. See Fed. ___ -24- 24 R. Crim. P. 16 advisory committee's note to 1991 amendment. Rule 16(a)(1)(A) is unequivocal that the government "must disclose . . . any relevant . . . recorded statements made by the defendant." Even an illegally obtained inconsistent statement of a defendant that can only be used to impeach him (but not a defense witness), Harris v. New York, 401 U.S. 222 __________________ (1971); James v. Illinois, 493 U.S. 307, 313 (1990), must be _________________ produced to him under Fed. R. Crim. P. 16(a)(1)(A). See, ___ e.g., United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975). ____ ______________________ The government's theory that Lanoue's statements were not relevant until a witness testified inconsistently with some part of the conversation was therefore erroneous, particularly where Carron was not cross examined about his own statements, but about Lanoue's. See United States v. ___ _________________ Scafe, 822 F.2d 928, 935 (10th Cir. 1987) (government _____ violated Rule 16 by withholding defendant's letters and using them to cross examine defense witness). The prosecutor's representations that he did not expect Carron to testify until the day before he testified, and that even then he did not expect Carron to testify about Laraviere's character, were irrelevant because, as explained, Rule 16(a)(1)(A) requires the government to disclose the defendant's recorded statements regardless of whether or when it intends to use them. Moreover, it is difficult to credit the government's representation. The recorded conversation -25- 25 itself and defense counsel's opening statement put the government on notice that Carron would testify about Laraviere. Finally, the court noted that, although the prosecutor could have tried to conceal the violation, he did not. It is true that the prosecutor immediately admitted that he held a transcript of the defendant's recorded conversation in his hand and that he had not disclosed it, and conceded the next day, with a myriad of excuses, that he had violated Rule 16. We will not overlook a prosecutor's failure to know or follow the discovery rules on the basis that he did not try to hide the violation. In any event, whether the prosecutor withheld the defendant's statements in good faith or intentionally has little to do with whether the court should have declared a mistrial, since prosecutorial good faith could have no mitigating effect on the prejudice flowing from the violation. See United States v. Padrone, 406 F.2d 560 (2d ___ _________________________ Cir. 1969) (granting new trial where inadvertent non- disclosure of defendant's statement affected trial strategy). b. Were the purposes of Rule 16 subverted? Rule 16's mandatory discovery provisions were designed to contribute to the fair and efficient administration of justice by providing the defendant with -26- 26 sufficient information upon which to base an informed plea and litigation strategy; by facilitating the raising of objections to admissibility prior to trial; by minimizing the undesirable effect of surprise at trial; and by contributing to the accuracy of the fact-finding process. See United ___ ______ States v. Alvarez, 987 F.2d 77, 84-86 (1st Cir. 1993), cert. __________________ ____ denied, __ U.S. __, 114 S. Ct. 147 (1993); Fed. R. Crim. P. ______ 16 advisory committee's note. The trial court found that the government's discovery violation had not undermined the purposes of Rule 16 because it did not cause the defendant to unknowingly subject himself to impeachment;6 Rule 16 was not intended to protect against surprising a witness with an inconsistent statement; and it may have actually assisted the accuracy of the fact-finding process by surprising the witness. All of these reasons miss the point because the government cross examined Carron by referring to and reading Lanoue's, and not Carron's, words. Lanoue had a right under the Federal Rules of Criminal Procedure to discover his recorded statements and to prepare for trial and devise a defense strategy based on the evidence disclosed. Alvarez, _______ 987 F.2d at 85. The court's reasoning that surprising a witness with the defendant's statements promoted accuracy and ____________________ 6. Lanoue testified after Carron, and therefore after the discovery violation came to light. -27- 27 therefore militated against remedial action turns Rule 16 on its head. Due to the nondisclosure, the defense was deprived of the opportunity to refresh Carron's recollection and to investigate the circumstances surrounding the conversation. This unfairly surprised the defense and deprived it of the opportunity to design an intelligent litigation strategy that responded to the statement. We also note that it is far from clear that the cross examination assisted the accuracy of the trial. The government opened its cross examination by accusing Carron of threatening Laraviere. At sidebar the prosecutor stated that Carron had threatened Laraviere, but proffered nothing to support the accusation other than to say that the document from which he read corroborated his questions. The conversation contained no mention of threats. In it, Lanoue told Carron that Laraviere was the informant, that his lawyer was putting an investigator on Laraviere, that he should not warn Laraviere, and that he should be wary of Laraviere. We doubt that this was a sufficient basis for asking Carron whether he had threatened Laraviere, and it plainly was an insufficient basis for asking if he had ever threatened anyone. Cf. United States v. Lilly, 983 F.2d 300, 306 (1st ___ ______________________ Cir. 1992) (prosecutor's explanation for asking question was plausible where he had in hand a judicial opinion finding appellant was not a credible witness); United States v. _________________ -28- 28 Gomez-Pabon, 911 F.2d 847, 857 n.5 (1st Cir. 1990) ___________ (expressing doubt that prosecutor's questions to defense witness about whether he was under investigation for drug smuggling were improper since the prosecutor volunteered to call witnesses to attest to the foundation of the questions), cert. denied, 498 U.S. 1074 (1991); United States v. Madrid ____ ______ _______________________ Ramirez, 535 F.2d 125, 129 (1st Cir. 1976) (appellant not _______ prejudiced by question to defense witness about prior offense because it was based on an actual conviction). Carron apparently was not charged with threatening Laraviere. The government did not present evidence in its rebuttal case to refute Carron's description of the FBI agents' visit in which he said that the agents pressured him to testify against Lanoue, not that they accused him of threatening Laraviere. The government was free to sh |