Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^* 

The facts and procedural history are set forth in the Memorandum for United States v. Stout, case No. 89-10410.

Prosecutors have a duty under due process to disclose evidence favorable to an accused upon request, where such evidence is material either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Both impeachment and exculpatory evidence falls within the Brady rule. United States v. Bagley, 473 U.S. 667, 676 (1985). The Jencks Act, 18 U.S.C. 3500 (1988), gives defendants the right to inspect documents containing the statement of any government witness which relates to the subject matter of the witness' testimony.

Cox's attorney asked the court to review certain documents in camera to determine whether or not they contained material discoverable under Brady or Jencks. The court declined to make such a review. Instead, the court relied on the U.S. Attorney's representations that the documents did not contain any Brady or Jencks material and could not be disclosed because they included information about ongoing investigations. The court refused to order disclosure, but sealed the material for future review on appeal.

In camera inspection is a sound approach to a Brady request. See United States v. Jones, 612 F.2d 453, 456 (9th Cir. 1979) (prosecution asserted that a document requested by the defense did not contain Brady material; court followed proper procedure where it conducted an in camera inspection and excised the irrelevant portions of the document), cert. denied, 445 U.S. 966 (1980); see also United States v. Dupuy, 760 F.2d 1492, 1501-03 (9th Cir. 1985) (trial court should have conducted in camera review after prosecutor told the court that her notes contained Brady material).

For Jencks Act cases, this circuit has held that a trial court should not rely on government counsel's assertions that disputed documents do not contain Jencks Act materials. Rather, the trial court should conduct an in camera review. See United States v. Miller, 771 F.2d 1219, 1231 (9th Cir. 1985).

The trial court abused its discretion in refusing to make an in camera review of the material at issue. Although the usual procedure under these circumstances would be to remand to the district court for an initial determination whether the reports contained discoverable material, see Miller, 771 F.2d at 1230, that is not necessary in this case. Where the exhibits are before the appellate court, it may conduct the review itself in the interest of judicial economy. See id.; see also Dupuy, 760 F.2d at 1502-03. Here, the reports at issue have now been unsealed, and this panel has reviewed them for both Brady and Jencks material.

Suppressing Brady material requires reversal "where there is any reasonable possibility that the suppressed evidence would have materially affected the verdict." United States v. Lehman, 792 F.2d 899, 901 (9th Cir.), cert. denied, 479 U.S. 868 (1986). The reports at issue here contain only one reference to Cox, alluding to him as "the cooker," which is clearly inculpatory rather than exculpatory. At oral argument, Cox pointed to only one statement-by Keith Nowland, another person eventually arrested in connection with this methamphetamine laboratory--as being exculpatory of Cox. In this passage, Nowland acknowledges the lab as his lab. Cox argues that because Cox was the oldest of the defendants, the jury was likely to have inferred that he was the ringleader, and that this admission by Nowland was exculpatory in the sense of showing that Cox was not "running the show." However, Cox was not charged with playing the leading role in the laboratory. He was indicted on the same charges as six other defendants: conspiracy to manufacture and distribute methamphetamine, manufacture of methamphetamine, and possession with the intent to distribute methamphetamine. By definition, a conspiracy involves more than one person. The fact that Nowland may have been the ringleader in no way exculpates Cox of having played some role in the operation. Thus, the documents do not contain any Brady material, and the trial court's failure to review the documents could not have affected the outcome of the trial, as required to reverse for Brady error.

Harmless error analysis applies where a district court refuses to conduct an in camera review of alleged Jencks material. See Miller, 771 F.2d at 1230-33. The Jencks Act requires disclosure of statements of witnesses called by the United States that relate to the subject matter of their testimony. 18 U.S.C. § 3500(b) (1988).

Cox alleged error with respect to the statements of two witnesses, Concord Police Officer Ronald Turner and California Department of Justice Special Agent Al Cruz. With respect to Officer Turner, the reports at issue were prepared by Special Agent Sigrid Turner of the San Francisco Bureau of Narcotic Enforcement, not Officer Ronald Turner who testified at trial. Because the reports do not contain any statements by witness Ronald Turner, they are not Jencks material with respect to Agent Turner.

With regard to Agent Cruz, one of the reports at issue was prepared by Agent Cruz, who did testify as a witness. The report discusses an informant's description of Nowland's drug activities and states that Cruz would "attempt to identify and arrest other persons associated with Nowland and his methamphetamine distribution organization."

At oral argument, Cox's only claim as to the existence of Jencks material was that unspecified agents testified about an ongoing investigation, that the reports at issue were relevant to the testimony of those witnesses, and that the reports showed that Cox was not the subject of that investigation.

Since the Jencks Act requires disclosure only of prior statements by a government witness who testifies at trial, the only report that could possibly be a candidate for Jencks disclosure is the report prepared by Agent Cruz, who testified at trial. Cruz's report can be Jencks material only if it pertains to the subject matter of Cruz's testimony. Thus, the only relevant inquiry is whether Cruz testified about the aspects of the Nowland investigation discussed in the report.

Cox's counsel questioned Cruz briefly at trial regarding whether Nowland was under surveillance during the period immediately before the search of the lab that led to Cox's arrest. Cox's counsel also asked whether Nowland was investigated at any time after the search of the lab. The report at issue discusses a stage of the Nowland investigation prior to the period about which Cruz testified at trial. Cruz's testimony did not involve the subject matter of the report.

Even if Cruz's statements in the report could be construed as statements pertaining to the subject matter of his testimony, Cox has failed to show that he was prejudiced in any way by the government's failure to disclose the material. Jencks Act disclosure is required solely for the purposes of impeachment, Dupuy, 760 F.2d at 1496, and Cox failed to show that the material would have in any way aided his cross examination of Cruz. At oral argument, Cox argued that the reports would have shown that Cox was not the subject of the investigation described in the reports. However, the fact that Cox was not mentioned in a report dealing with the earliest stages of a separate investigation involving a different suspect is irrelevant to his guilt or innocence on the charges for which he was being tried.

Finally, Cox has not shown any way in which access to the report could have helped him overcome the government's case against him. The evidence against Cox included the fact that Cox was present in the house when it was searched, that his fingerprints were found on glassware at the lab site, and that equipment commonly used in the manufacture of methamphetamine was found in a search of Cox's residence. Agent Cruz's report was not relevant to any of this evidence. The mere fact that Cox was not mentioned in a report discussing the preliminary stages of the investigation into Nowland would not exculpate Cox. Thus, the court's error in failing to conduct an in camera review was harmless for purposes of the Jencks Act.

Finally, at oral argument Cox argued that prejudicial error occurred from the court's failure to conduct an in camera review, even if the documents contained no Brady or Jencks material. Cox argued that uncertainty about whether or not the documents contained such material could have affected the trial strategy. For example, he alleged that this uncertainty may have influenced Cox's decision not to testify at trial, which could have affected the trial outcome. As discussed above, reversible error exists only where the documents in question actually do contain Brady or Jencks material, and where the undisclosed existence of this material could have affected the outcome of the trial. There is no basis for reversal where, as here, these factors are not present.

II. Constitutionality of Sentencing Guidelines

Cox initially argued that the district court erred by refusing to depart downward from the Sentencing Guidelines on account of Cox's age and asserted limited involvement in the crime. In his Reply Brief, however, Cox conceded the government's argument that this court does not have jurisdiction to determine whether the district court abused its discretion in failing to depart downward from the Sentencing Guidelines. Therefore, we do not address this issue.

Cox further argues that the Sentencing Guidelines violate due process because they do not permit individualized sentencing. This circuit recently held that the Guidelines do not facially violate due process. United States v. Brady, 895 F.2d 538, 541 (9th Cir. 1990). However, Brady explicitly left open the possibility of due process challenges to the Guidelines as applied in particular cases. See id. at 543. Cox argues that the Guidelines violated due process as applied because the district court failed to consider his advancing age and minimal involvement, and because the evidence was of insufficient quality and quantity to justify his sentence.

The Brady court explained that a proper "as applied" challenge could allege that "the Guidelines 'are being applied without giving defendants an appropriate opportunity to contest the facts bearing upon the various predicate factors that the Guidelines make relevant to sentencing.' " Id. (quoting United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, 110 S. Ct. 184 (1989)). Brady also states that appellants could attempt "to demonstrate why the particular factors they enumerate are essential to an individualized sentence." Id.

Cox has failed to make either of these showings. First, he had a full opportunity to contest the facts bearing upon the factors that were used in his sentencing; the judge simply found against him after considering his objections.

Second, he has failed to demonstrate that the Guidelines barred the court from considering any factors that are "essential to an individualized sentence," id. The trial court explicitly considered and rejected Cox's claims of minimal involvement and lack of evidence, noting that the jury had found to the contrary. Therefore, even if these factors were deemed essential to an individualized sentence, the district court did in fact consider them. There is no basis for Cox's due process claim as it pertains to the degree of his involvement or the evidence supporting his involvement.

Cox also claims that the district court's failure to consider his age violated due process. The Sentencing Commission expressly addressed and rejected the proposal to use age as a variable in determining sentences, U.S.S.G. Sec. 5H1.1 (Policy Statement). Cox fails to show why age should be considered a factor essential to an individualized sentence under the requirements of due process. Like the factors rejected in the Brady "as applied" analysis (psychological condition, family and community standing), age is "far less indicative of culpability than factors such as the offense itself, the defendant's criminal history, or the manner in which the offense is committed." Brady, 895 F.2d at 543. The court's failure to consider Cox's age did not violate due process.

AFFIRMED.