Unpublished Disposition, 855 F.2d 863 (9th Cir. 1988)

MEMORANDUM^* 

PROCEDURAL AND FACTUAL BACKGROUND

Defendant stole and then sold United States Treasury Checks in violation of 18 U.S.C. §§ 510(b) and 1708. At trial, he admitted committing these crimes, but attempted to defend himself on the ground that government agents entrapped him. He was found guilty and sentenced to five years on probation. On appeal, he raises only one issue: that the government violated Fed. R. Crim. P. 16 by failing to disclose Chanet's own statement, made to a federal agent, that Chanet used the money obtained from selling Treasury checks to purchase rock cocaine for his own use.

One week before trial, the government notified Mr. Chanet that it intended to introduce testimony by a government informant, John Webb, that Chanet had told the informant he intended to use the profits from selling checks to buy drugs. Webb's testimony was introduced at trial. Chanet does not challenge this evidence on appeal.

On the day of trial, the government informed Mr. Chanet that it also intended to introduce testimony from government agent Kaylor, who claimed that Chanet had confessed to using his profits to purchase drugs. Chanet objected to Kaylor's testimony as a violation of Rule 16 and asked to have it excluded. The district judge declined. Chanet did not request a continuance to prepare for trial in light of this new evidence. Nor did the court offer the defendant that opportunity. Chanet now requests that his conviction be reversed on the ground that the district court should have excluded Kaylor's testimony. We affirm.

DISCUSSION

Rule 16(a) (1) (A) of the Federal Rules of Criminal Procedure requires that the government provide criminal defendants upon request with "the substance of any oral statement which the government intends to offer in evidence at the trial." We assume, without so holding, that the government violated this rule. Although the government did provide Mr. Chanet with a summary of his confession of guilt to officer Kaylor, it did not provide the substance of his oral statement of motive. Because the government intended to introduce Mr. Chanet's confession of motive as rebuttal to the defense of entrapment, it should have provided Chanet with his statement to Kaylor.

However, violations of Rule 16 do not inevitably require that the trial court exclude the evidence not timely provided. To the contrary, Rule 16(d) (2) permits the court to "order [the] party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or [to] enter such other order as it deems just under the circumstances." We have held that the appropriate penalty for violating Rule 16 is committed to the district court's discretion. See, e.g., United States v. Gee, 695 F.2d 1165, 1168 (9th Cir. 1983). We therefore will not reverse unless the district court abused its discretion in not excluding Kaylor's testimony.

Defendant argues here that the only appropriate remedy was exclusion of the evidence. He contends that a continuance would not have constituted a proper remedy, and does not contest the failure to provide one. We reject defendant's argument.

Trial courts should not impose a harsher sanction than is required by the goals of Rule 16. Id. at 1169. In this case, we cannot find an abuse of discretion. Appellant does not allege that the government intentionally withheld information until the last moment. We find no evidence of bad faith, and will not presume an ill intent when the government appears merely to have made an error. In fact, for purposes of our decision, it is not necessary to decide whether any violation of Rule 16 occurred, let alone a bad faith one.

No showing was made that a continuance would seriously inconvenience any party or court. If a remedy was required here, that remedy was a continuance that would have permitted the defendant to reconsider his trial strategy. Because defendant does not contest the failure to grant a continuance, we are required to affirm. Assuming arguendo that a violation occurred, the district court was not required to adopt the drastic remedy of excluding the evidence.

AFFIRMED.