USA v. Siraj, No. 07-0224 (2d Cir. 2008)

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07-0224-cr USA v. Siraj 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: June 16, 2008 Decided: July 9, 2008) Docket No. 07-0224-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.SHAHAWAR MATIN SIRAJ, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, Straub, Circuit Judge, and Jones, District Judge.* Appeal from a judgment of conviction entered on January 30 18, 2007 in the United States District Court for the Eastern 31 District of New York (Gershon, J.). 32 to his conviction, the appellant contends that he was 33 entitled, under Federal Rule of Criminal Procedure * Among other challenges The Honorable Barbara S. Jones, of the United States District Court for the Southern District of New York, sitting by designation. 1 16(a)(1)(B)(i), to discover police reports containing the 2 substance of statements he made to an undercover police 3 officer. 4 discussed in an accompanying summary order, we affirm. For the following reasons, and for those reasons 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 MARSHALL L. MILLER (David C. James and Todd Harrison, on the brief), Assistant United States Attorneys for Benton J. Campbell, United States Attorney, Eastern District of New York, Brooklyn, NY for Appellee. ROBERT J. BOYLE, New York, NY for Appellant. DENNIS JACOBS, Chief Judge: Shahawar Matin Siraj ( Matin ) appeals from a judgment 21 entered January 18, 2007 in the Eastern District of New York 22 (Gershon, J.) convicting him of various offenses arising out 23 of a conspiracy to bomb the Herald Square subway station in 24 midtown Manhattan. 25 defeated by well settled law, we consider them in an 26 accompanying summary order. 27 issue of first impression: whether written police reports 28 that memorialize oral statements made by a defendant to an 29 undercover officer must be produced upon demand under Because most of Matin s arguments are We write to resolve a single 2 1 Federal Rule of Criminal Procedure 16(a)(1)(B)(i). 2 We hold that they do not. 3 4 BACKGROUND 5 Between November, 2002 and April, 2004, Matin spoke 6 many times with an undercover New York City Police ( NYPD ) 7 officer who operated under the assumed name of Kamil Pasha. 8 After speaking with Matin, Pasha would relay Matin s 9 statements to his NYPD handler; and the handler would create 10 a written report containing the substance of Matin s 11 statements. 12 the NYPD reports to Matin in response to his pre-trial 13 discovery request under Federal Rule of Criminal Procedure 14 16. The government concedes that it did not give 15 Matin argues that he was entitled to get the reports 16 under subsection (a)(1)(B)(i) of Rule 16, and that he was 17 prejudiced by the government s failure to produce them. 18 19 DISCUSSION 20 I 21 22 In determining whether the prosecutor was required to disclose the NYPD reports under Federal Rule of Criminal 3 1 Procedure 16, we begin with the relevant portion of the 2 text: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (A) Defendant s Oral Statement. Upon a defendant s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial. (B) Defendant s Written or Recorded Statement. Upon a defendant s request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following: (i) any relevant written or recorded statement by the defendant if: ¢ the statement is within the government s possession, custody, or control; and ¢ the attorney for the government knows--or through due diligence could know--that the statement exists; (ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent . . . . Fed. R. Crim. P. 16(a)(1) (emphases added). 4 Matin was 1 (concededly) unaware that Pasha was a government agent, and 2 does not contend on appeal that he was entitled to the 3 reports under subsections 16(a)(1)(A) or (a)(1)(B)(ii). 4 Rather, he characterizes his statements--as embodied in the 5 NYPD reports--as written or recorded statement[s] by the 6 defendant, and argues that they were therefore discoverable 7 under Rule 16(a)(1)(B)(i). 8 9 Rule 16(a)(1)(B) distinguishes between two types of Written or Recorded statements. Subsection (i) makes 10 discoverable all relevant written or recorded statement[s] 11 by the defendant that the prosecutor could reasonably know 12 are within the government s possession, custody, or 13 control. 14 portions of written record[s] containing the substance of 15 any relevant oral statement made by the defendant-- if the 16 defendant made the statement in response to interrogation by 17 a person the defendant knew was a government agent. 18 Subsection (ii) makes discoverable certain Matin argues that he was entitled to his statements 19 under subsection (i) because the substance of [his] 20 relevant oral statement[s], Fed. R. Crim. P. 21 16(a)(1)(B)(ii), became written or recorded statement[s] 22 [of] the defendant for purposes of subsection (i), when 5 1 they were reduced to writing in the NYPD reports. We decline to adopt Matin s proposed reading of Rule 2 3 16. 4 (10th Cir. 1984). 5 holding. 6 Accord United States v. McClure, 734 F.2d 484, 493 Two closely related rationales inform our First, Matin s reading creates redundancy in the 7 statute. If the substance of a defendant s oral statements 8 could be discovered under subsection (i) as soon as it is 9 embodied in a written record, then every statement 10 discoverable under subsection (ii) would also be 11 discoverable under subsection (i). 12 construction would therefore violate the well-settled 13 principle that courts should avoid statutory 14 interpretations that render provisions superfluous, In re 15 Nassau County Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 16 2006) (quoting State St. Bank & Trust Co. v. Salovaara, 326 17 F.3d 130, 139 (2d Cir. 2003)). 18 Matin s proposed Second, by explicitly designating as discoverable only 19 those written memorializations of oral statements made in 20 response to interrogation by a known government agent under 21 subsection (a)(2)(B)(ii), Rule 16 implicitly excludes from 22 its scope written memorializations of other oral statements 6 1 such as those at issue here. Adopting Matin s reading of 2 the term written or recorded statement would undermine 3 that purpose by rendering discoverable any oral statement 4 later embodied in a written report within the government s 5 possession, custody, or control. 6 II 7 8 Our holding is not inconsistent with United States v. 9 Johnson, 525 F.2d 999, 1003-04 (2d Cir. 1975), which held 10 that a government agent s written summary of a defendant s 11 oral statement was discoverable as a written or recorded 12 statement under the 1966 version of Federal Rule of 13 Criminal Procedure 16. 14 because the 1966 version of Rule 16 differs from today s 15 version in a crucial respect: 16 subsection (a)(1)(B)(ii). 17 (a)(1)(B)(ii) that our holding rests. Johnson does not control this case it contained no analog to And it is upon subsection 18 19 CONCLUSION 20 For the foregoing reasons, and for those stated in the 21 accompanying summary order, we affirm. 7

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