United States Court of Appeals
For the First Circuit
No. 08-1497
UNITED STATES OF AMERICA,
Appellee,
v.
FELIX GONZALEZ-MELENDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lipez, Hansen,* and Howard,
Circuit Judges.
Rafael F. Castro Lang for appellant.
German A. Rieckehoff, Assistant United States Attorney, with
whom Rosa E. Rodriguez Velez, United States Attorney and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
June 19, 2009
*
Of the Eighth Circuit, sitting by designation.
Per Curiam. Defendant-appellant Felix Gonzalez-Melendez
was indicted on one count of aiding and abetting a carjacking, in
violation of 18 U.S.C. § 2119(1) and (2), and one count of using a
firearm during and in relation to a carjacking (which is a crime of
violence), in violation of 18 U.S.C. § 924(c). After trial, a jury
convicted Gonzalez-Melendez of the carjacking charge, but acquitted
him of the firearms charge.
On appeal, Gonzalez-Melendez alleges several infirmities
in the proceedings below, including a deficiency in the district
court’s handling of his discovery request for certain prior out-of-
court statements made by Lawrence Evans, the general manager of
Essroc San Juan, who was the supervisor of both the victim of the
carjacking and the appellant. The government concedes that the
district court did not comply with its obligation independently to
review the government's compliance with the Jencks Act, 18 U.S.C.
§ 3500, as required by circuit precedent. Accordingly, we remand
this case to the district court for limited proceedings consistent
with this order, while retaining jurisdiction over the appeal.
In addition, appellant argues that the record does not
reflect any indication of how the district court handled the jury's
first (2:15 pm) note requesting copies of the indictment and the
court's instructions of law, as well as an explanation of an
unspecified issue from the district court. A district court's
failure to attempt to inform defense counsel about the existence of
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a jury note, and further failure to solicit defense counsel's input
regarding any response to such a note, violates Rule 43 of the
Federal Rules of Criminal Procedure. See United States v. Ofray-
Campos, 534 F.3d 1, 17 (1st Cir. 2008) cert denied, 129 S. Ct. 588
(2009) (citing Fed R. Crim. P. 43(a)(2)). Because the Jencks Act
challenge requires a remand in any event, we invite the district
court to augment the record with additional details about its
handling of the first jury note, including whether it attempted to
appraise counsel of the note's existence, if so, whether and how
quickly counsel responded, and finally, the court's ultimate
response, if any, to the note. If necessary, we will address the
appellant’s remaining claims after district court proceedings
pursuant to this limited remand have been concluded.
Because we deal with such a small portion of this case,
we provide only a background of the events that gave rise to the
Jencks Act challenge and the issue concerning the jury note.
Immediately after Evans completed his testimony on direct appeal,
the defense requested discovery of any prior statements made by
Evans relating to the subject matter of his testimony that were in
the government’s possession. See 18 U.S.C. § 3500(a). The
government had in its possession an FD-302 Form, which is a an FBI
form that reports on and summarizes an FBI agent’s interview of a
witness. See United States v. Skilling, 554 F.3d 529, 577-78 (5th
Cir. 2009) (describing these Forms and noting that the government
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disclosed them in that case). The government, however, claimed
that this Form was not discoverable because the witness never
adopted the Form, and therefore the contents of the Form did not
constitute a "statement" of the witness within the meaning of the
Jencks Act. 18 U.S.C. § 3500(e)(1) (defining statement of a
witness to include a “written statement” that is “signed or
otherwise adopted” by the witness). Over the objections of the
defendant, the district court denied discovery of the FD-302 Form
on this basis.
We fast-forward past the rest of the trial (and the
alleged errors that occurred therein) and resume with the jury's
deliberations. Shortly after the jury began its deliberations, the
jury sent an unsigned note to the district judge that said
"[p]lease send a copy of the indictments and the instructions of
law. Please explain. Thanks a lot." This note was duly marked as
jury note number one and docketed. But neither the docket nor the
record reveals any indication of what if anything the district
court did in response to the jury note. Indeed, the copy of the
note in the district court docket is the only reference to the note
in the record.1
On appeal, the appellant argues that the district court’s
Jencks Act ruling was in error, and the government agrees. See
1
The district court received two other notes from the jury on
the same day, and neither party challenges the district court's
handling of these notes.
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G’vt. Br. at 34-36. Where a defendant requests discovery of
potential Jencks material, our precedent requires the district
judge to conduct an independent investigation of any such materials
and determine whether these materials are discoverable under the
Jencks Act.2 In this case, because the substance of the Form 302
was relevant to the witness’s testimony, the district court should
have determined whether the Form 302 was producible under the
Jencks Act, 18 U.S.C. § 3500(e).3 E.g., United States v. Rosario-
Peralta, 175 F.3d 48, 55 (1st Cir. 1999) (explaining procedure with
respect to subsection(e)(1)); United States v. Neal, 36 F.3d 1190,
1197-98 (1st Cir. 1994) (explaining procedure with respect to
subsection (e)(2)).
Because the Jencks Act contains several definitions of
"statement," the district court was obliged (and on remand, is
2
This independent review may include such measures as in
camera inspection of any disputed document(s), and conducting a
hearing to evaluate extrinsic evidence, including taking the
testimony of the witness whose potential "statements" are at issue
as well as the person who prepared the written document in which
those statements appear. See generally Goldberg v. United States,
425 U.S. 94, 108-09 (1976).
3
In this case, the document would have been producible if it
was a "statement" made by Evans. A "statement" within the meaning
of the Jencks Act is (1) a written statement made, adopted, or
approved by the witness, 18 U.S.C. § 3500(e)(1); (2) a recording
(or transcription thereof) that is a substantially verbatim recital
of an oral statement made by the witness and recorded
contemporaneously with the making of the oral statement, id. at §
(e)(2); or (3) a statement (or transcription thereof) made by the
witness to a grand jury, id. at § (e)(3).
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obliged) independently to determine whether the Form 302 meets any
of the Jencks Act's definitions of "statement."
With respect to a written statement of a witness, see 18
U.S.C. § 3500(e)(1), it is sufficient but not necessary that the
supposed "statement" be signed by the witness or consist of a
substantially verbatim recording of a prior oral statement.
Campbell v. United States, 373 U.S. 487, 492 n.6 (1963). Moreover,
it is equally clear that the witness need not write the statement
himself. Id. Furthermore, a witness may orally adopt a statement,
even if he has reviewed the statement only aurally. See generally
id. at 489-91 (finding that copies of notes federal agent took
during witness interview, the accuracy of which the agent confirmed
by reading them back to witness who agreed notes were accurate, was
a statement adopted by the witness for Jencks Act purposes); United
States v. Colon-Diaz, 521 F.3d 29, 38-40 (1st Cir. 2008). Finally,
any materials substantially equivalent to a "statement" that the
witness has orally adopted can themselves be considered materials
"adopted" by the witness for purposes of the Jencks Act. Campbell,
373 U.S. at 495-96 (concluding that interview report prepared from
interview notes adopted by witness was reasonably found to be an
accurate "copy" of witness's orally adopted statement); see also
Colon-Diaz, 521 F.3d at 38-40 (noting that government disclosed
DEA-6 reports that witness adopted orally).
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Of course, there may be other scenarios in which an
unsigned document is nevertheless adopted and is therefore
disclosable under the Jencks Act. On remand, the parties and the
district court will have the opportunity to explore this matter
further.
In addition, although it was not considered at length
below, the district court on remand should consider whether this
particular Form 302 is a "substantially verbatim recital of an oral
statement" made by a witness and recorded contemporaneously. 18
U.S.C. § 3500(e)(2). As we have long held, a longhand writing,
which "fairly follow[s] a witness'[s] words, subject to minor,
inconsequential errors" is discoverable under § (e)(2) of the
Jencks Act. Neal, 36 F.3d at 1198 (citations omitted).
Thus, consistent with Supreme Court and circuit
precedent, we remand this case to the district court for the
limited purpose of revisiting its Jencks Act ruling in light of the
proper legal standards. The district court should independently
satisfy itself whether or not the Form 302 reflecting an FBI
interview with Evans was discoverable under the Jencks Act. In
that endeavor, we note that it would be difficult to complete the
task without reviewing the document itself and that it likely would
be helpful to hear from not only Mr. Evans, but also the agent(s)
who interviewed him and the agent who prepared the Form. See
Campbell, 373 U.S. at 490-91.
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If, after applying the legal standards articulated here,
the district court concludes that the Form is not discoverable, it
should "supplement the record with findings" supporting this
decision. Goldberg, 425 U.S. at 111; Rosario-Peralta, 175 F.3d at
57-58; Neal, 36 F.3d at 1199. If, however, the court finds that
there was a Jencks Act violation, it must further consider whether
the government's failure to disclose these materials was harmless.
See, e.g., Goldberg, 425 U.S. at 111-12 ("On the other hand, if the
court concludes that the Government should have been required to
deliver the material, or part of it, to petitioner, and that the
error was not harmless, the District Court will vacate the judgment
of conviction and accord petitioner a new trial.") (footnote
omitted); Erkman v. United States, 416 U.S. 909, 913 (1974); United
States v. Lucas, 516 F.3d 316, 347 & n.120 (5th Cir. 2008) (citing
United States v. Ramirez, 174 F.3d 584, 587 (5th Cir. 1999));
United States v. Oruche, 484 F.3d 590, 597 (D.C. Cir. 2007)
(citation omitted); Neal, 36 F.3d at 1199. Should the court
conclude that the failure to disclose was harmless, it should
supplement the record with an explanation of why the nondisclosure
was harmless and why a new trial is not appropriate. Neal, 36 F.3d
at 1199. In this regard, we note that "[s]ince courts cannot
speculate whether Jencks material could have been utilized
effectively at trial, the harmless-error doctrine must be strictly
applied in Jencks Act cases." Goldberg, 425 U.S. at 111 n.21
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(internal quotation marks and citations omitted); Erkman, 416 U.S.
at 909 ("harmless error doctrine should be employed with restraint
in Jencks Act cases").
Thus, we remand to the district court to conduct further
proceedings to determine whether the Form 302 was discoverable
under the Jencks Act, and if so, whether a new trial should be
granted. In addition, on remand, the district court should explain
what action, if any, it took in response to the first jury note
received at 2:15 pm. In particular, it would be helpful for the
court to explain whether the court attempted to apprise counsel of
the note, if so, whether and how quickly counsel responded, and how
the court ultimately handled the note, including whether any
documents were provided to the jury, and whether the court provided
the jury with any other written or oral instructions.
We retain jurisdiction over this appeal, and will resume
consideration of the remaining issues in this appeal, including any
challenges to the district court's revised Jencks Act
determinations, and/or the court's handling of the jury note after
the proceedings on remand have concluded.
It is so ordered.
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