Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1988)

MEMORANDUM

Britt appeals his convictions for conspiracy to manufacture and distribute methamphetamine, possession of phenyl-2-propanone (P-2-P) with intent to manufacture methamphetamine, use of a communication facility to facilitate acts constituting a felony, and being a felon in possession of a firearm. Britt contends that the district court erred in denying his motion for a mistrial. His motion was based upon the government's alleged failure to disclose in pretrial discovery, in violation of Fed. R. Crim. P. 16(a) (1) (A), statements made by him during interrogation by an agent of the Federal Bureau of Investigation (FBI). These statements were later included in the agent's testimony. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We affirm.

Britt describes his issue on appeal as one of due process. He fails to show how this clause is implicated. There is no constitutional right to discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 559 (1977). His issue on appeal is more accurately a contention that the government violated Fed. R. Crim. P. 16 by failing to disclose the substance of an oral statement he made to a government agent which the government introduced at trial for impeachment purposes.

In the government's case-in-chief, the FBI agent testified that Britt admitted to him placing calls to Las Vegas in an effort to obtain additional P-2-P. The agent repeated this testimony during rebuttal, and added that Britt had told him about the fugitive status of "Dusty," the individual that he had called in Las Vegas, that "Dusty" worked for one of the biggest drug dealers in the Las Vegas area, and that the drug dealer had organized crime ties.

Pursuant to Fed. R. Crim. P. 16(a) (1) (A), the government provided investigative reports referring to the Las Vegas telephone call because the government intended to, and did, offer that oral statement in its case-in-chief. The record does not reflect there was any written description of the telephone conversation mentioning "Dusty." Thus, the record does not show that there was such a discoverable statement for the government to turn over to Britt. There was no violation of rule 16(a) (1) (A) proven by Britt.

Britt argues that there must be such a statement because the agent could not have remembered such a detail without refreshing his recollection. That is a matter of the credibility of the agent properly decided by the jury and does not, without more, implicate rule 16(a) (1) (A).

AFFIRMED.