Unpublished Disposition, 857 F.2d 1480 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellant,v.Viken YACOUBIAN, Defendant-Appellee.

No. 87-5005.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1988.Decided Sept. 6, 1988.

Before BRUNETTI, THOMPSON, Circuit Judges, and C.A. MUECKE^* 

* MEMORANDUM^** 

Viken Yacoubian and four other men of Armenian ancestry were indicted in 1982 for conspiracy to transport explosives in interstate commerce (18 U.S.C. § 371); transportation of explosives in interstate commerce (18 U.S.C. § 844(b)); and possession of an unregistered firearm (18 U.S.C. § 5861(d)), in connection with an attempt to bomb the Turkish Consulate in Philadelphia. Four of the defendants, including Yacoubian, stipulated to the underlying facts and in a non-jury trial, asserted a group insanity defense. They claimed to be suffering from a mental disorder arising from exposure to accounts of "the historical genocide of the Armenian people by the government of Turkey." The fifth defendant was tried separately.

At trial, the defense presented two expert witnesses, Drs. Hacker and Nievod, both of whom had examined Yacoubian at some length and concluded that he suffered from a mental disorder. The prosecution also presented two expert witnesses, Dr. Faerstein who had examined Yacoubian on one occasion, and Dr. Maloney who had analyzed the results of Yacoubian's Rorschach tests, both of whom concluded that Yacoubian was not suffering from such a disorder.

Dr. Maloney, a rebuttal witness, was the last witness to testify at trial. After his direct examination, the trial was continued for six weeks. During that period, Dr. Maloney submitted Yacoubian's Rorschach test to his colleague, Dr. Kaser-Boyd, for scoring under the more technical "Exner method." The prosecution apparently was not aware of Dr. Kaser-Boyd's involvement.

On the last day of the trial, shortly before Dr. Maloney's cross-examination, Dr. Maloney met with Dr. Kaser-Boyd. In a brief discussion of not more than fifteen minutes, Dr. Kaser-Boyd related several of her specific findings and her impression that Yacoubian was probably suffering from a thought disorder. The results of Dr. Kaser-Boyd's scoring were included on the Rorschach test itself, on preprinted scoring sheets, and on separate note paper. Dr. Maloney did not review these written results before leaving for court with only the marked Rorschach test.

At the courthouse, Dr. Maloney told the prosecutors of Dr. Kaser-Boyd's involvement, but apparently did not apprise them of her conclusions. During his cross-examination, Dr. Maloney testified that Dr. Kaser-Boyd had scored the Rorschach test under the Exner method and that he had not yet examined her results. The defense reviewed the marked Rorschach test with Dr. Maloney on the stand, and ultimately introduced that copy of the test into evidence. Closing arguments immediately followed the cross-examination, during which the defense referred to Dr. Kaser-Boyd's notations on the Rorschach test as some evidence of Yacoubian's mental disorder. However, the defense did not seek a continuance in order to conduct a more thorough investigation into Dr. Kaser-Boyd's findings.

On October 9, 1984, the four defendants were convicted on each of the three counts. On October 15, Yacoubian filed a combined motion for judgment of acquittal and for a new trial. In support of his motion, Yacoubian argued that the weight of the evidence did not support the guilty verdict, and that the government had withheld evidence in violation of its duty of disclosure under Fed. R. Crim. P. 16 and Brady v. Maryland, 373 U.S. 83 (1963). The district court denied the motion for judgment of acquittal, but held an evidentiary hearing on the motion for a new trial. Finally, on November 24, 1986, the district court granted the motion for a new trial, stating only that Yacoubian was denied an adequate opportunity to cross-examine. The written order was not accompanied by any detailed findings or discussion.

The government now appeals from that order, arguing that it did not violate either Rule 16 or Brady. It reasons that the government had neither possession nor knowledge of Dr. Kaser-Boyd's findings, that the defense could have gained access to those findings through due diligence, and that the findings were immaterial.

The decision whether to grant a motion for a new trial pursuant to Fed. R. Crim. P. 33 is reviewed for an abuse of discretion. United States v. Lopez, 803 F.2d 969, 977 (9th Cir. 1986), cert. denied, --- U.S. ----, 107 S. Ct. 1958 (1987); United States v. Endicott, 803 F.2d 506, 514 (9th Cir. 1986). The appellant must carry a significant burden to show that the district court abused its discretion. United States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986); United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985).

II

In his motion for a new trial, and now on appeal, Yacoubian argues, inter alia, that the government suppressed Dr. Kaser-Boyd's findings in violation of its due process duty to disclose to the defense exculpatory evidence under Brady, 373 U.S. 83. In Brady, the Court held:

[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

373 U.S. at 87; see also Moore v. Illinois, 408 U.S. 786, 794-95 (1972). Both exculpatory and impeachment evidence are considered "favorable" and within the Brady rule. Giglio v. United States, 405 U.S. 150, 154 (1972). And in United States v. Agurs, 427 U.S. 97, 103-07 (1976), the Court held that the Brady Rule may apply whether the defense made a specific request, general request, or no request at all. Assuming that Dr. Kaser-Boyd's findings are favorable to Yacoubian's defense, and meet the requisite standard of materiality, compare Agurs, 427 U.S. at 103-04 (standard varies with specificity of request), with United States v. Bagley, 473 U.S. 667, 682 (1985) (plurality) (single standard regardless of specificity), we are satisfied that the prosecution did not suppress that evidence within the meaning of Brady.

In the words of Justice White, "any allegation of suppression boils down to an assessment of what the State knows at trial in comparison to the knowledge held by the defense." Giles v. Maryland, 386 U.S. 66, 96 (1967) (White, J., concurring). We have consistently adhered to this approach, and taken the position that there can be no suppression, and therefore no viable Brady claim, if the means of obtaining the evidence in question (although not the evidence itself) is in the possession of the defense before or during trial. See United States v. Dupuy, 760 F.2d 1492, 1501 n. 5 (9th Cir. 1985); United States v. Shelton, 588 F.2d 1242, 1249-50 (9th Cir. 1978), cert. denied, 442 U.S. 909 (1979); United States v. Brown, 562 F.2d 1144, 1151 (9th Cir. 1977); United States v. Miller, 529 F.2d 1125, 1128-29 (9th Cir.), cert. denied, 426 U.S. 924 (1976). Thus, there is required a certain degree of diligence on the part of the defense in cases of this sort.

The record in the present case reveals that Dr. Kaser-Boyd did not complete her procedures of scoring Yacoubian's Rorschach test and summarizing her results until late in the day on August 20, 1984. Dr. Maloney did not learn of Dr. Kaser-Boyd's findings until their hurried fifteen-minute meeting on the following morning; because he was leaving for court he did not have time to review her written findings. The prosecuting attorneys did not learn of Dr. Kaser-Boyd's involvement or findings until Dr. Maloney arrived at court that morning, and then they were not informed as to the substance of the findings. Finally, the defense learned of Dr. Kaser-Boyd's involvement and the existence of findings during its redirect-examinations of Dr. Maloney that same day.

This summary of events illustrates that although the defense was the last to know that Yacoubian's Rorschach had been scored under the Exner method, and although that knowledge was obtained on the final day of the trial, the defense was not at a relative disadvantage. Only Dr. Kaser-Boyd had a significantly superior knowledge of the substance of her findings. Appellee argues that Dr. Kaser-Boyd was an agent of the prosecution, and therefore, her superior knowledge must be imputed to the prosecution team. We need not wrestle with this argument because even if we assume its validity, the inferior knowledge possessed by the defense was sufficient to require diligence on its part.

During the course of this trial, the district court granted at least two continuances, one of two weeks and another of six weeks. Nothing in the record indicates that the district court had become hostile to the possibility of further continuances. It is therefore reasonable to conclude that when the defense learned that Dr. Kaser-Boyd had scored Yacoubian's Rorschach test under the Exner method, it had the option of requesting a continuance so that it could discover the nature of her findings and their possible impact on the presentation of Yacoubian's case.

Indeed, during oral argument, counsel for appellee, who was also defense counsel, conceded that he was faced with precisely this option. He debated whether to ask for a continuance and risk revealing potentially damaging evidence, or to proceed with his established defense and risk bypassing potentially favorable evidence. Counsel conceded that he made a purely tactical decision to forego a continuance and to make use of Dr. Kaser-Boyd's seemingly favorable pencil notations on the Rorschach test copy that was already before the court. Dilemmas of this kind are not uncommon and are inherent in our adversary system.

We do not today pass judgment on the wisdom of defense counsel's decision to proceed with the trial on December 21, 1984. We do, however, emphasize that such a tactical decision forecloses a subsequent claim that the government suppressed the very evidence which the defense chose not to pursue. Accordingly, we hold that the government did not suppress Dr. Kaser-Boyd's findings in violation of Brady, and therefore, a new trial is not justified on this ground.

Also in his motion for a new trial, and now on appeal, Yacoubian argues that the government failed to disclose Dr. Kaser-Boyd's findings in violation of Fed. R. Crim. P. 16(a) (1) (D). That section provides in pertinent part as follows:

Rule 16. Discovery and Inspection (a) Disclosure of Evidence by the Government

(1) Information Subject to Disclosure.

.............................................................

...................

* * *

(D) Reports of Examinations and Tests. Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense....

Fed. R. Crim. P. 16(a) (1) (D).

Even if we assume that the government violated this rule of discovery, Yacoubian would still not be entitled to a new trial on that basis. In much the same way as a Brady claim requires a showing of suppression, a Rule 16 claim requires a showing of prejudice before a remedy will be granted. See United States v. Gee, 695 F.2d 1165, 1167 (9th Cir. 1983); United States v. Espericueta-Reyes, 631 F.2d 616, 623 n. 6 (9th Cir. 1980); United States v. Eddy, 549 F.2d 108, 113 (9th Cir. 1976). Because Yacoubian's trial counsel elected not to seek a continuance in order to pursue Dr. Kaser-Boyd's findings, Yacoubian's defense could not have been prejudiced by the government's failure to produce those findings. Thus, as we held in the context of Brady, a new trial is not justified on this ground.

III

In conclusion, we reject both of appellee's asserted justifications for the district court's decision to grant Yacoubian's Rule 33 motion for a new trial. We find that on these issues, the government has carried its weighty burden and established that insofar as the district court based its decision on Brady or Rule 16, it abused its discretion. We need not be concerned about other possible grounds for the district court's decision because they were not included in Yacoubian's Rule 33 motion; it is fundamental that a district court cannot order a new trial under Rule 33 on its own motion. See 3. C. Wright, Federal Practice and Procedure Sec. 551, at 238 (1982). As a result, we reverse the district court's order, filed December 8, 1986, granting Yacoubian a new trial. We also remand the case to the district court for further proceedings.

REVERSED and REMANDED.