United States of America, Plaintiff-appellee, v. Scott Todd Noe, Meridith Rogers, Defendants-appellants, 821 F.2d 604 (11th Cir. 1987)

Codefendants S. Todd Noe and Meredith Rogers were convicted after a jury trial of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and of distribution of methamphetamine in violation of 21 U.S.C. § 841.¹  Noe appeals his convictions primarily on the ground that the trial court improperly admitted into evidence on rebuttal a tape recording of a telephone conversation between an undercover drug agent and an individual identified by the agent as Noe. Noe contends that admission of the tape constitutes reversible error due to the government's failure to provide the tape in response to Noe's pre-trial discovery request filed pursuant to Rule 16(a) (1) (A) of the Federal Rules of Criminal Procedure. Rogers does not appeal her distribution conviction, but challenges her conspiracy conviction as unsupported by the evidence and as based upon an erroneous jury instruction. We reverse Noe's convictions due to the discovery violation, but affirm Rogers' conspiracy conviction.

The government's case against both codefendants rested largely on testimony of two undercover agents of the federal Drug Enforcement Administration (DEA). The agents testified that several times during the span of a week they met Noe, whom they knew as "Scott," at various Atlanta nightspots to discuss the possibility of Noe's assisting them in establishing a clandestine methamphetamine laboratory. They testified that at one of the early meetings they requested a sample of methamphetamine, and that Noe subsequently instructed one of them to retrieve an eyeglass case that was lying on the table at which Noe and the agent were sitting. The case was found to contain methamphetamine. One agent testified that he inspected the contents of the case and then paid Noe $1,000. The agents further testified that the next day they asked Noe for another sample and for a list of equipment and chemicals needed to set up a methamphetamine laboratory. According to their testimony, Noe informed them a day later that they should get the sample and list from "Meredith," referring to appellant Rogers. The agents were familiar with Rogers through another, unrelated undercover investigation they were then conducting.

The agents met with Rogers the following day. After stating that she had something for them from "Scott", Rogers handed them an envelope containing a methamphetamine sample and a list of materials. According to the agents, Rogers remarked that she hoped the quantity of the sample was sufficient, explaining: " 'I had to cut it out of a chunk.... Scott keeps all of his money and marijuana and stuff at my house when he is in town.' " The agents testified that when they asked Rogers whether "Scott" could be trusted in the arrangement they were negotiating, she replied that she did not know the details of their transactions, but that "Scott" was " 'good at what he does.' " The agents testified that their dealings with Noe and Rogers ended at Noe's insistence after Rogers noticed one of the agents following her in traffic.

Testifying in his defense, Noe denied that he was involved in any of the events recounted by the agents or that he had ever spoken with the agents. He contended that he was visiting with family in Costa Rica during the entire time that the events were alleged to have taken place. In support of this testimony, Noe introduced into evidence a passenger receipt for a round-trip airline ticket to Costa Rica reserved in his name. Noe attempted to introduce other evidence to support his contentions, but the court ruled the evidence inadmissible.² 

On rebuttal, the government offered into evidence a tape recording of a telephone conversation in which one of the undercover DEA agents and a man identified by the agent as Noe agreed to meet the next day at an Atlanta bar. According to the agents, the date of the tape corresponded to the time during which Noe claimed that he was in Costa Rica. Noe objected to admission of the recording on the ground that the government had failed to provide him the tape before trial despite his timely request, pursuant to Rule 16(a) (1) (A) of the Federal Rules of Criminal Procedure, for all statements of the defendant. Although conceding that the tape should have been provided to Noe, the government asserted that the failure to do so was inadvertent. The district court admitted the recording into evidence.

In challenging admission into evidence of the taped telephone conversation, Noe relies primarily on United States v. Rodriguez, 799 F.2d 649 (11th Cir. 1986) (per curiam). In Rodriguez, a panel of this court reversed a conviction where the government, in violation of Fed. R. Crim. P. 16(a) (1) (C), failed to disclose to the defendant materials that officers had taken from the defendant's wallet after his arrest. 799 F.2d at 652. The Rodriguez court concluded that this discovery violation substantially prejudiced the defendant's rights when, in cross-examining the defendant concerning his denial that he maintained contacts in Colombia, the government attorney referred to names and telephone numbers that were found in the wallet. Id. at 653. The court reasoned that " [b]y failing to turn over for discovery what it told the jury were his personal papers, the government deprived [the defendant] of any chance to prepare his case to meet that evidence." Id.

The government urges that Rodriguez does not compel reversal of Noe's convictions. Under Rodriguez, a violation by the government of the criminal discovery rules warrants reversal of a conviction only if the defendant shows prejudice to substantial rights. Moreover, Rodriguez recognized that the existence of "actual prejudice will often turn on the strength of the government's case." Id. at 652. The government argues that here, in contrast to the relatively weak, largely circumstantial evidence presented in Rodriguez, the case against Noe was based on the extensive direct testimony of the two undercover DEA agents. Furthermore, Noe's alibi defense was largely uncorroborated. Thus, according to the government, to permit Noe to "fabricate" an unsupported alibi story to conform to the prosecution's evidence, without permitting the government full opportunity to rebut, would result in a miscarriage of justice.

The government's arguments, however, misconstrue both the purpose of the criminal discovery rules and the concept of actual prejudice resulting from violations of those rules by the government. As the Rodriguez court noted, the purpose of Rule 16(a) is "to protect the defendant's rights to a fair trial." Id. at 654. And, contrary to the government's contentions, the degree to which those rights suffer as a result of a discovery violation is determined not simply by weighing all the evidence introduced, but rather by considering how the violation affected the defendant's ability to present a defense. See United States v. Pascual, 606 F.2d 561, 565-66 (5th Cir. 1979)³ ; United States v. Padrone, 406 F.2d 560, 561 (2d Cir. 1969) (per curiam). Where the government at trial introduces undisclosed evidence that tends to undermine one aspect of the defense--as occurred in Rodriguez--the existence of actual prejudice often will turn on the strength of the remaining elements of the government's case. Here, however, the government introduced evidence that attacked the very foundation of the defense strategy. As the Rodriguez court observed, the failure of the government to disclose " 'statement [s] made by the defendant is so serious a detriment to the preparation for trial and the defense of serious criminal charges that where it is apparent, as here, that [the] defense strategy may have been determined by the failure to [disclose], there should be a new trial.' " 799 F.2d at 651 (quoting Padrone, 406 F.2d at 561).⁴ 

Under the theory advanced by the government, the prosecution, by design or inadvertence, could withhold discoverable inculpatory evidence until the defendant asserted a defense strategy based on the apparent nonexistence of that evidence, thus foreclosing other, possibly viable, defense strategies. Unless a court concluded, based on all the evidence introduced, that the case against the defendant was "not strong," the discovery violation would be considered harmless. We refuse to adopt such a rule, for it would encourage precisely the "trial by ambush" that the Federal Rules of Criminal Procedure were designed to prevent. See United States v. Martinez, 763 F.2d 1297, 1315 (11th Cir. 1985).

The government's appeals to "justice" to uphold Noe's guilty verdicts are misplaced. Although Noe certainly does not have a right to "fabricate" an alibi story, the Federal Rules of Criminal Procedure provide him a right to discover all statements that he made to law enforcement officials, and, correspondingly, to devise a defense strategy on the basis of the evidence disclosed.⁵  The same rules permit the government to demand any alibi defense a defendant intends to assert. Fed. R. Crim. P. 12(a). Had the government either complied fully with Noe's discovery request or availed itself of its authority to demand the details of any alibi story, it would not now be before this court invoking vague notions of justice. Likewise, had Noe been aware of the tape recording prior to trial, his counsel "might well have advised [him] not to take the stand." Padrone, 406 F.2d at 561. The government, however, failed to comply with Noe's discovery request and did not disclose the tape recording until after Noe had developed and implemented his trial strategy. Consequently, the government cannot now claim that the discovery violation was harmless. In United States v. Pascual, supra, our predecessor court was confronted with a situation in which the government had introduced into evidence a previously undisclosed letter which directly incriminated two codefendants. The government there apparently argued, as it does here, that the discovery violation did not prejudice the defendants' substantial rights because the evidence overwhelmingly demonstrated their guilt. The court stated:

It would be hard to make an argument with any degree of plausibility that the use of this letter without prior production did not seriously prejudice the defendants in exercising their option to plead not guilty and in their preparation for trial.

....

[The undisclosed letter] was a written plea of guilty to the allegations contained in the indictment.

....

A new trial with this nail in the coffin lid, now fully disclosed, may likely result in another verdict of guilty. Nevertheless, the vindication of Rule 16, and notice to prosecutors in this Circuit that they must effectively comply with it, leaves no choice but to reverse the convictions and remand for a new trial.

606 F.2d at 565-66. We have no choice here but to do the same.⁶ 

In appealing her conspiracy conviction, Rogers contends that the verdict was based upon an erroneous instruction to the jury and that it was unsupported by evidence. We reject both claims.

Rogers requested that the court instruct the jury not to consider the statements of one codefendant against the other unless the jury first found that the government had shown beyond a reasonable doubt the existence of a conspiracy. This requested instruction, however, is contrary to the law of this circuit. Rule 801(d) (2) (E) of the Federal Rules of Evidence permits an extrajudicial statement of one coconspirator to be considered as evidence against another coconspirator only if the trial court first determines that the prosecution has shown, by a preponderance of the evidence independent of the extrajudicial statement: "(1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the coconspirator's statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy." United States v. James, 590 F.2d 575, 583 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S. Ct. 2836, 61 L. Ed. 2d 283 (1979). Contrary to Rogers' proposed instruction, however, the rule does not further require that the jury make an independent determination of the existence of a conspiracy before it may consider the extrajudicial statements of coconspirators admitted into evidence. See United States v. Monaco, 702 F.2d 860, 878 (11th Cir. 1983).⁷  Because the instruction requested by Rogers was not a substantially correct statement of the law, the refusal of the court to give that instruction cannot constitute reversible error. See, e.g., United States v. Lopez, 758 F.2d 1517, 1521 (11th Cir. 1985) (failure to give requested charge warrants reversal only if the requested instruction was substantially correct and was not addressed in the charge actually given, and if its omission seriously impaired the presentation of an effective defense), cert. denied, --- U.S. ----, 106 S. Ct. 789, 88 L. Ed. 2d 767 (1986).

We also reject Rogers' claim that the evidence was insufficient to support her conspiracy conviction. Rogers argues that the government introduced no evidence connecting her to Noe's alleged scheme to manufacture methamphetamine. Yet neither the conspiracy indictment nor the government's presentation of its case depended upon any direct link between Rogers and the manufacturing scheme. Rather, the indictment charged that Rogers conspired to distribute methamphetamine. As the government argued at trial and on appeal, Rogers could be found guilty of such a conspiracy if she conspired with another to make only the single distribution of methamphetamine to the undercover agents.

Viewing, as we must, the evidence in the light most favorable to the government, e.g., United States v. Brooks, 703 F.2d 1273, 1277 (11th Cir. 1983), we conclude that there was substantial evidence to support the jury's finding that Rogers conspired to distribute methamphetamine. The agents testified that Rogers told them not only that the envelope containing the methamphetamine sample came from "Scott," but also that she herself had cut the sample from a "chunk." The jury thus had sufficient evidence from which to find that Rogers agreed with someone else to forward the methamphetamine to the agents and from which to infer that Rogers was aware at least that the material was contraband. Rogers' conspiracy conviction, consequently, must be affirmed.

Based on the foregoing analysis, the convictions of appellant Noe are REVERSED; the convictions of appellant Rogers are AFFIRMED.

EDMONDSON, Circuit Judge, concurring in part and dissenting in part:

I concur in the affirmance of Rogers' conviction but dissent from the reversal of Noe's conviction.

The majority today holds that the district court erred by admitting on rebuttal a tape recording refuting Noe's sole defense--Noe's alibi that he had been in Costa Rica during the drug transactions. According to the majority, the district court was required to exclude the tape because the government failed to disclose it prior to trial in violation of Fed.Rule Crim.Proc. 16(a) (1) (A). Although I agree with the majority that the government violated Rule 16, I disagree that this violation required exclusion of the undisclosed tape recording from evidence. Exclusion of the tape, I believe, would be contrary to sound judicial policy and is required by neither our precedent nor Rule 16.

Rule 16(a) (1) (A) states that " [u]pon request of a defendant the government shall permit the defendant to inspect and copy ... any relevant ... recorded statements made by the defendant...." Rule 16(d) (2) provides that

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter any other order it deems just.

As this language indicates, the government's violation of Fed.Rule Crim.Proc. 16(a) (1) (A) did not automatically prohibit the use of the undisclosed evidence at trial. Rather, relief for this violation lay within the discretion of the trial court. United States v. Rodriguez, 799 F.2d 649, 652 (11th Cir. 1986). On appeal, therefore, the trial court's decision to admit the tape recording despite the Rule 16 violation can be reversed only for abuse of discretion. No such abuse of discretion occurred in this case.

The admission of the tape recording into evidence was necessary to enable the government to rebut the defendant's apparently perjurious alibi defense. Noe testified in his defense that he was in Costa Rica from November 10, 1985, until November 23, 1985. The government proffered in rebuttal a tape recording of a telephone conversation on November 14, 1985, between DEA Agent Peterson and an interlocutor who was apparently Noe, in which Peterson and the interlocutor planned to meet at a bar in Atlanta, Georgia that night and referred to a meeting "last night" at another Atlanta bar. Over defendant's objection, the district court admitted the tape recording. The tape was highly probative evidence. It strongly suggested that Noe was in Atlanta during the time of the alleged drug transactions andas Noe concedes--devastated his alibi defense.¹ 

A defendant should not be able to take the stand and to testify and then to rely on Fed.Rule Crim.Proc. 16 to exclude evidence which strongly indicates that his testimony on a crucial issue was perjurious. To have excluded the tape recording from evidence--as the majority today holds was required--would have unjustifiably interfered with the truth-seeking function of Noe's criminal trial. A felony trial is not some game in which every slip of the prosecutor is a gain for the accused; in fact, felony trials are by their nature not dainty proceedings and ought not be expected to be. The fundamental purpose of a criminal trial is to arrive at a true determination of the defendant's guilt or innocence. See Rose v. Clark, --- U.S. ----, 106 S. Ct. 3101, 3105-06, 92 L. Ed. 2d 460 (1986); Henderson v. United States, 237 F.2d 169, 172 (5th Cir. 1956).²  Quite simply, the interest in seeking the truth here--where the rebuttal evidence so directly refuted defendant's sole defense--overrode the policy considerations which sometimes justify exclusion of evidence for a violation of Fed.Rule Crim.Proc. 16.³  The truth-seeking function of the trial, I believe, in and of itself justified the admission of the tape recording into evidence.

Another reason why I believe that the admission of the tape was not abuse of discretion is that Noe did not suffer prejudice to substantial rights. A showing of prejudice to substantial rights is a prerequisite for reversal of a district court's exercise of discretion in admitting evidence not disclosed by the government in violation of Fed.Rule Crim.Proc. 16. United States v. Rodriguez, 799 F.2d 649, 652 (11th Cir. 1986).

Noe stressed in his appellate briefs and in oral argument to this court that his sole defense at trial was alibi and that his sole defense at a new trial, if granted, would be alibi. Moreover, he asserted that the admission of the tape "devastated" his alibi defense at his trial and would do so at a new trial, if granted.⁴ 

In light of Noe's own assertions, the majority's conclusion that Noe suffered substantial prejudice appears incorrect. For example, suppose that the government had complied with Fed.Rule Crim.Proc. 16 and disclosed the tape to Noe before trial. What could Noe have done differently at trial? Noe asserts that he might have decided not to testify. His sole defense, by his own concession, was and is the alibi that he was in Costa Rica from November 10 to November 23. Usually, the alibi defense, as a practical matter, requires the defendant to testify. Even if he had not taken the stand, he still would have had to attempt to prove the alibi and still would have had to contend with the tape recording that shows him in Atlanta on November 13 and 14. By his own concession, the tape is devastating to the alibi defense.

Noe argues that if the government had disclosed the tape earlier, he would have more time to prepare a challenge to the authenticity of the tape. But when confronted with the tape, Noe requested neither a mistrial nor a continuance. Having failed to request a continuance or mistrial, Noe cannot now complain that he was prejudiced by lack of time to attack more effectively the belatedly disclosed tape recording. See United States v. Scruggs, 583 F.2d 238, 242 (5th Cir. 1978) (holding that defendant failed to show prejudice to substantial rights from admission of evidence not disclosed in violation of Fed.Rule Crim.Proc. 16, noting that "significantly, counsel did not ask for a longer recess or a continuance so that he might more effectively meet this evidence."); see also United States v. James, 495 F.2d 434, 437 (5th Cir.), cert. denied, 419 U.S. 899, 95 S. Ct. 181, 42 L. Ed. 2d 144 (1974); United States v. Bailey, 550 F.2d 1099, 1100-01 (8th Cir. 1977).⁵ 

Also, Noe's counsel argues that if he had known about the tape and realized that Noe was lying, he would have approached plea bargaining differently. But Fed.Rule Crim.Proc. 16 was not designed to enable a criminal defendant to mislead his own counsel and then subsequently claim prejudice because the counsel did not advise him to plea bargain.⁶ 

Noe and the majority rely heavily on United States v. Rodriguez, 799 F.2d 649 (11th Cir. 1986). Rodriguez, however, is materially different in at least four respects. First, Rodriguez requested a mistrial whereas Noe requested neither a continuance nor a mistrial to give him time to challenge more effectively the tape recording. Second, the case against Rodriguez was much weaker than the case against Noe.⁷  Third, Rodriguez demonstrated prejudice to substantial rights while, as has already been discussed, Noe totally fails to demonstrate prejudice to his rights.

Fourth, the prosecutor's violation of Fed.Rule Crim.Proc. 16(a) (1) (C) in Rodriguez--by failing to disclose documents or tangible items--was more likely to surprise unfairly a defendant than the prosecutor's violation of Fed.Rule Crim.Proc. 16(a) (1) (A) in the present case by failing to disclose the tape recording. In Rodriguez, the prosecutor surprised the defendant by asking the defendant about certain names and telephone numbers which, the prosecutor hinted, had been found in defendant's wallet. The defendant was reduced to saying "I don't know them. They could be people." The Rodriguez court observed that:

Anyone who has not found in a wallet or purse a name and telephone number that are not readily identifiable, may not understand this decision. The fact is, however, that Rodriguez had no chance to determine whether or not those names and numbers were actually from his wallet or someone else's, or to think about why the numbers were in his wallet, if indeed they were.

Rodriguez, 799 F.2d at 653. A surprised, ordinary citizen could easily be uncertain whether a document or tangible item was in his wallet, car or house and could easily have difficulty explaining on short notice how or why such an item came to be there.

In contrast, a person knows whether or not he has made a phone call to arrange a meeting in Atlanta concerning drugs. Noe did not need a chance to determine whether or not he had made such a phone call. He knew whether or not he had. Nor did Noe need time to think about why he made such a phone call, if he did.⁸  For all these reasons, Rodriguez is a materially different case which did not prohibit admission of the tape recording in the present case.⁹ 

Noe also asserts that the district court committed reversible error by excluding from evidence his passport that allegedly supported his alibi defense. Because the tape recording devastates the alibi defense in any event, any error in the exclusion of the passport must be considered harmless. This argument cannot justify reversal.

By this dissent, I do not condone the prosecutor's conduct in this case. A prosecutor who deliberately violates Fed.Rule Crim.Proc. 16 should be subject to sanctions against him personally. Personal sanctions against prosecutorial officers would be a more effective deterrent and have less harmful side effects than excluding evidence of critical importance to the factual question of the defendant's guilt or innocence.

A defendant's adjudication of guilt should not be reversed because of the prosecutor's discovery violation where, as here, the defendant suffered no prejudice thereby. The district court did not abuse its discretion by admitting the highly probative evidence directly refuting Noe's alibi defense. The majority's holding today distorts Fed.Rule Crim.Proc. 16 from an engine for the discovery of truth into an instrument for obfuscation. There is no good reason to do that.

Accordingly, I respectfully dissent from the reversal of Noe's conviction.