United States of America v. Sylvester J. Lewis, Appellant, 511 F.2d 798 (D.C. Cir. 1975)

Appealing from his convictions for possession of metrazine and heroin with intent to distribute and for possession of marijuana,¹  Sylvester J. Lewis seeks a new trial on the ground that the government should not have been permitted to impeach him at trial on the basis of a statement he allegedly made to an arresting officer, because defense counsel had been led to believe by the government's pretrial representations that it knew of no statements made by Lewis upon arrest, or at least no statements which it 'intend(ed) to use against him.' We conclude, on all the circumstances of this case, that it was error for the trial judge to permit the government to introduce such evidence and that it requires reversal of the convictions and a new trial.

As a result of surveillance from inside a truck in the area of Division and Foote Streets, Northeast, on October 22, 1973, Metropolitan Police Officers saw Lewis engage in separate transactions with three persons which indicated that Lewis was selling drugs in violation of law. After the third transaction, the officers summoned police in a nearby scout car to make the arrest. As the car approached, Lewis was seen to hand a brown paper bag to one Regina Evans, and when they were arrested the bag was found to contain marijuana, ten packets of heroin, and a vial holding twenty preludin tablets. In Lewis's right sock police found two needles and syringes.

On December 5, 1973, defense counsel Marvin Fabrikant had a pretrial conference with Eugene Propper, a government attorney. The police report (form 163), which was the focus of the meeting, gave no indication that Lewis had made any statement upon arrest. Prior to trial, defense counsel also had access to grand jury and preliminary hearing testimony, as well as a second police report (form 251), none of which indicated that defendant had made any statements to arresting officers.

On December 10, 1973, Fabrikant filed a motion to suppress all tangible evidence seized upon defendant's arrest, on the ground that there had been no probable cause for the arrest; he also asked that any verbal or written statements made by defendant at the time of his arrest by suppressed on the ground that defendant was not sufficiently advised of his right against self-incrimination and did not knowingly or voluntarily waive that right. No pretrial hearing was held on the motion, as it was finally agreed that the court would decide the motion on the evidence given at trial. On February 1, 1974, the day originally set for trial, the government filed a three-page response in which its sole comment on the self-incrimination issue was the following footnote on page two:

'The defendant did not make any statements at the time of his arrest which the government intends to use against him.'

The three-day trial before Judge Gasch and a jury commenced on February 4, 1974. On its direct case the government introduced no evidence of any statement made by Lewis.

Lewis testified in his own defense and denied any talk or transaction regarding drugs. He said that the bag, in which police had found drugs, did not belong to him. He maintained that it had been lying abandoned in the street when Regina Evans pointed it out to him and asked him to hand it to her, which he did. He said that he was holding the syringes and needles for a friend. Finally, although admitting that in 1972 he had been addicted to narcotics, he maintained that at the time of his arrest, on October 22, 1973, he was not addicted.

On cross-examination Assistant United States Attorney Charles Wagner asked Lewis:

'Now at the time you were arrested, didn't you tell the police officer that you used narcotics and that you shot in your ankle?'

Defense counsel immediately objected, and when the objection was overruled, moved for a mistrial, on the ground that the government had indicated in its response to the suppression motion that no Miranda statements would be used against the defendant. The government, while admitting that it knew of Lewis's statement by the time it filed its response to the suppression motion,²  argued that the footnote accurately reflected its intention not to use Lewis's statement in its initial presentation, but to save it for rebuttal if any. It also argued that the statement was admissible to impeach Lewis under Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), even assuming Miranda warnings had not been given. In Harris, the Supreme Court limited the scope of the exclusionary rule with regard to statements obtained in violation of Miranda and held that a defendant who takes the stand may be confronted with such statements, even though the exclusionary rule would bar the government from offering them as part of its main case.

The trial court denied the motion for a mistrial, holding the statement admissible under Harris. When defense counsel shortly thereafter renewed his argument that he had been misled by the government's footnote, the trial judge stated, 'I don't know that it is misleading if you read Harris.'

Following Lewis's denial of the statement attributed to him, he was asked to lower his socks and to display his ankles, which had marks on them, to the jury. In rebuttal, over objection, the government then recalled the arresting officer, Thomas Burke, who testified that he had seen marks on Lewis's ankle when he had taken the needles and syringes from Lewis's sock. Burke stated that Lewis, having been advised of his rights, had later said that he had the abscesses because he fired heroin and 'shot-up' in his ankles and legs.

After both sides had rested, Fabrikant again asked for a mistrial on the ground that he had been misled. He referred not only to the government's written representation, but to his notes of the pretrial conference with Propper.³  He also stated that the grand jury and preliminary hearing testimony, as well as the second police report, had contributed to his belief that the government knew of no relevant statements made by Lewis at the time of his arrest. Fabrikant argued that the fact that he was misled affected his advice to his client whether to take the stand. Assistant United States Attorney Wagner denied that any misrepresentation had been made. Even if there had been a misunderstanding with respect to whether the government had evidence of any relevant statement, he maintained that any error was harmless since the statement in question was not discoverable under Rule 16(a) (1) of the Federal Rules of Criminal Procedure as its substance had ever been written down or recorded.⁴  The trial court, without additional comment, reaffirmed its earlier ruling.

It is of the utmost importance that the government respond accurately and unambiguously to defense counsel's inquiries and motions relating to statements, both written and oral, made by a defendant to the authorities. The government's answer to the defense motion to suppress, that '(t)he defendant did not make any statements at the time of his arrest which the government intends to use against him', was an equivocation. Taken together with the pretrial conference between Fabrikant and Propper, as well as with the grand jury testimony, the preliminary hearing testimony, and a second police report--none of which indicated any statement by Lewis,--it was only natural and reasonable that Fabrikant would construe the government response to mean that no such statement would be used at any time during the trial.

Under all the circumstances the trial judge should have excluded any reference to the defendant's oral statement, whether presented on the government's case or brought forth in any way at a later stage of the trial.

Had Fabrikant not been misled with respect to whether Lewis had made any relevant and possibly incriminating statement upon arrest, his trial preparation and strategy might well have been different, especially as he might have been able to have the court require the government to disclose the substance of the statement. The government argues that the statement was not discoverable as the government had no recording or writing which contained even the substance of what defendant had said to Officer Burke, but we are not convinced that a trial court might not have ordered disclosure here.

Although Rule 16(a) speaks of 'written or recorded statements or confessions made by the defendant,' the defendant does not have to be aware that notes are being made of what he says,⁵  and the rule has been held to authorize discovery of a known government agent's notes of what a defendant said to him upon arrest, even though the notes were made sometime after the conversation and gave only the substance rather than the exact words of what the defendant said.⁶  There would seem to be little reason to draw a line between such a situation and the present case where the officer related information about Lewis's statement orally to the prosecutor. In both cases the prosecutor can call the government officer to testify as to the statement. In neither case would the admission or exclusion of the evidence under Harris and Miranda turn on how the prosecution had 'preserved' what defendant had said, whether in written notes or in the memory of an officer. Indeed drawing such a distinction for the purpose of determining whether information was discoverable would only encourage investigators and prosecutors who sought the advantage of surprise at trial to avoid reducing their recollections of a defendant's statements to writing, thus frustrating the purpose of Rule 16(a).

Discovery of the government's evidence of relevant and incriminating statements made by a defendant to police is of the utmost importance to the preparation of the defense as it must be kept in mind that given the traumatic circumstances of arrest the memory of a defendant as to exactly what occurred may well be hazy and defective. Even where a defendant's memory is crystal clear, it is not every defendant who chooses to tell his own attorney all that he remembers.

Moreover, a principal purpose of discovery is to advise defense counsel what the defendant faces in standing trial; it permits a more accurate evaluation of the factors to be weighed in considering a disposition of the charges without trial. While we cannot know whether such disclosure would in this case have led to disposition without trial, we do know that such disclosure does result in such dispositions in many cases.

The importance of disclosure of a defendant's statements to authorities in the preparation of his defense and in promoting a fairer and more efficient administration of the criminal justice system is now generally thought to outweigh the chance that disclosure may increase the likelihood of perjury by a defendant in those cases that go to trial. See ABA Standards, Discovery and Procedure Before Trial, §§ 1.2, 2.1(a) (ii), and commentary thereto at 34--46, 58--64 (1970)⁷ ; Proposed Amendments to the Federal Rules of Criminal Procedure, Rule 16(a), 416 U.S. 1005 (1974) and H.R.Doc.No.93--292, 93d Cong., 2d Sess. (1974).⁸  See also United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, 649 & nn. 13--14 (1971); United States v. Crinsona, 416 F.2d 107, 114--15 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S. Ct. 991, 25 L. Ed. 2d 253 (1970); Loux v. United States, 389 F.2d 911 (9th Cir.), cert. denied, 393 U.S. 867, 89 S. Ct. 151, 21 L. Ed. 2d 135 (1968); United States v. Projansky, 44 F.R.D. 550 (S.D.N.Y. 1968); United States v. Morrison, 43 F.R.D. 516 (N.D. Ill. 1967).⁹ 

We thus conclude that the language of Rule 16(a) referring to written or recorded statements should not be read as precluding a trial judge from ordering the disclosure of the substance of a defendant's oral, unrecorded statements made to arresting officers.¹⁰ 

Although the government presented a strong case even without the use of the statement, we cannot say that the error was harmless or did not prejudice Lewis, as use of the statement not only impeached Lewis's credibility in general, but undermined a significant element in his defense--namely that he had not been addicted at the time of his arrest. See United States v. Padrone, 406 F.2d 560 (2d Cir. 1969). On the retrial, however, now that the defendant knows that the government can produce evidence of the defendant's oral statement made at the time of his arrest, the government is not restricted as to the proper use of that evidence.

To preclude such use here would impose a wholly unwarranted sanction contrary to discovery of the truth.

Reversed.