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07/27/84 United States of America v. North American Reporting


July 27, 1984






Before TAMM, WALDAND SCALIA, Circuit Judges. Opinion for the Court filed by Circuit Judge WALD.


Appeals from the United States District Court For the District of Columbia (Criminal No. 83-00021).


WALD, Circuit Judge:

In this case, North American Reporting, Inc. and Richard Lee Boyd appeal conviction on eight counts of mail fraud, in violation of 18 U.S.C. 1341, and eight counts of making false statements, in violation of 18 U.S.C. § 1001. Appellants press two central claims. *fn1 First, they contend that the district judge improperly excluded from evidence a summary chart proffered by the defense. Second, they find error in the government's failure to produce, and the district court's failure to examine, notes taken by the prosecutor during interviews with various prosecution witnesses. Appellants argue that these notes must be produced under the Jencks Act. See 18 U.S.C. § 3500.

We find that the district judge acted well within her discretion in excluding the summary chart from evidence on the ground that it was "confusing." However, we remand this case because the district judge failed to meet her obligation to make an adequate determination that the prosecutor's notes are not in fact producible under the Jencks Act. Pending resolution of the Jencks Act issue, the appellants' convictions shall not be vacated. I. BACKGROUND

North American Reporting, Inc. (North American) is a corporation that provides stenographical services. Richard Lee Boyd is a president of North American. From November 1, 1979 to October 31, 1981, North American provided court reporting services to the White House under two year-long contracts.

Under these contracts, North American was paid on the basis of the number of hours worked by its employees. The company submitted vouchers to the government every month listing the hours worked during the previous month, and breaking down the hours to show the time worked by each individual employee on each particular day. The government then paid North American in accordance with the hours represented on the vouchers.

North American's employees were also paid by the hour. Each employee would submit a time sheet to the company twice a month, and would receive compensation on the basis of the hours noted on the time sheet.

The prosecution alleged that Boyd, through the company, deliberately submitted false vouchers that overstated the hours worked by the company's employees. To prove the deliberate overbillings, the prosecution presented numerous former employees who authenticated their time sheets. A summary witness, Federal Bureau of Investigation Special Agent Richard D. Coy, then presented a summary chart that compared the hours submitted by the employees on the time sheets and the hours submitted by Boyd on the vouchers. Coy testified that he had found 38.5% of the voucher entries as understating the number of hours represented on the time sheets. To aid Coy's summary testimony, the prosecution entered into evidence a chart that listed the relevant entries from the vouchers and from the time sheets, and calculated the differences between the two for each particular employee. *fn2

To counter the prosecution's case, the defense argued that "any discrepancies between the employee time sheets and the vouchers resulted from legitimate rounding off of hours, different contractual interpretations by the employees and North American Reporting as to what hours could be billed, and honest mistakes." Appellants' Brief at 7 (citations omitted). To support this theory, Boyd testified that, instead of referring to employees' time sheets to prepare the vouchers, he relied upon various sources, including his own memory, the President's schedule, typed transcripts, and employee sign-in sheets (so-called "wall sheets"), in order to reconstruct the time worked by his employees and himself.

To aid Boyd's testimony, the defense attempted to introduce into evidence a chart purporting to summarize, in the same manner as the prosecution's summary chart, numerous instances in which Boyd contends he underbilled the hours actually worked in his vouchers submitted to the government. After objection by the prosecution, however, the district court excluded the chart on the grounds that it was "terribly confusing" and "absolutely baffling to the court [and] . . . to the jury." Tr. 996, 998-99.

At the conclusion of the seven day trial, the jury convicted appellants on all counts. The district judge subsequently sentenced Boyd to concurrent sentences of two years' imprisonment on the odd-numbered counts and concurrent sentences of three years' probation on the even-numbered counts provided that Boyd made restitution of $13,260. This appeal ensued. II. THE EXCLUSION OF DEFENDANTS" EXHIBIT NO. 24

During Richard Boyd's testimony, the defense attempted to introduce Defendants' Exhibit 24 into evidence. This exhibit purported to be a calendar of the defendants' underbillings, and was designed to counter the prosecution's case as to deliberate overbillings by Boyd. Designed with a format similar to the government's summary chart, see supra at 4-5, the defendants' exhibit listed, day by day, the hours Boyd claimed to have underbilled the government.

However, unlike the prosecution's summary chart -- which relied primarily upon the authenticated time sheets of employees -- the defendants' exhibit relied upon a hodge-podge collection of personal memory, unauthorized evidence, surmise and post hoc contract interpretation. For example, seventeen entries on the defendant's exhibit relied entirely on Boyd's undocumented assertion that he was working on a given day, but did not bill for the time worked. Boyd testified that he assumed he worked on some of those days because he and Carol DeHaven, who married Boyd in September, 1981, were "inseparable," and since Ms. DeHaven was working on those days, he "would have been there" also. Tr. 1009. In another entry, Boyd listed overtime for three employees because a fourth employee worked overtime that day, and Boyd "presumed [that the other three were] in also." Defendants' Exhibit No. 24, reprinted in Appellants' Appendix at 44 (March 10 entry). However, the authenticated time sheet for at least one of those employees shows that the employee worked a normal eight hours that day. See Government Exhibit No. 34. Moreover, the voucher submitted by Boyd for that day shows a normal workday for all four employees. See Government Exhibit No. 6.

Moreover, a vast number of the entries in the defendants' chart rely upon a highly questionable interpretation of North American's White House contract. At trial, Boyd maintained that he would have been entitled to bill the government for overtime, in addition to the regular contract amount for a workday, whenever an employee began work before 10 a.m. or left work after 7 p.m., regardless of whether the total hours worked by the employee exceeded the nine hour period specified in the contract. While none of the government administrators who testified at trial supported this interpretation, and Boyd himself failed to submit vouchers that adhere to this interpretation, the defendants' chart employed this interpretation in order to create the preponderance of the supposed underbillings. *fn3

For these, and additional, *fn4 reasons, we believe that the district judge had ample basis for excluding the defendants' chart on the ground that it was confusing. Evidence may be excluded, although it is relevant, if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403. The decision to exclude relevant evidence pursuant to Rule 403 is committed to the sound discretion of the trial judge. See, e.g., United States v. Lemire, 232 U.S. App. D.C. 100, 720 F.2d 1327, 1248 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226, 104 S. Ct. 2678, 81 L. Ed. 2d 874 (1984); United States v. Wright, 160 U.S. App. D.C. 57, 489 F.2d 1181, 1186 (D.C. Cir. 1973). Defendants' Exhibit No. 24 presents a frequently observed danger associated with summary charts: the jury might "treat the summary as additional evidence or as corroborative of the truth of the underlying testimony." Lemire, 720 F.2d at 1348; see United States v. Scales, 594 F.2d 558, 564 (6th Cir.), cert. denied, 441 U.S. 946, 99 S. Ct. 2168, 60 L. Ed. 2d 1049 (1979). When, as here, the "evidence" summarized derives from such diverse sources, of various shades of unreliability, including mere surmise, undocumented recollection and questionable assumptions, we do not think the district judge abused her discretion in preventing the exhibit from influencing the jury.

Finally, we note that the district judge permitted Boyd to testify as to the matters presented by the chart. The defense therefore was not deprived of the opportunity to make its case regarding its underbilling theory. *fn5 By excluding the defendants exhibit, the district judge simply assured that the jury would not be confused by the chart which, on its face, appeared to summarize "facts," but which, in actuality, collected the results of the jumble of the defendants' wishes, guesses and undocumented recollections. Accordingly, we find no error in the district judge's decision to exclude the chart from evidence. III. THE JENCKS ACT DETERMINATION

Before trial, the defense requested that the prosecution produce certain notes taken during interviews with witnesses. The defense maintained that the Jencks Act, 18 U.S.C. § 3500, required the production of such notes. Without examining the contents of the prosecutor's notes, *fn6 the district judge ruled that the notes were "work products" of the government attorneys, and were not producible under the Jencks Act. Tr. 24; see Tr. 25-30.

Appellants ask this court to rule that the prosecutor's notes were in fact producible under the Jencks Act. Further, appellants, citing 18 U.S.C. § 3500(d), contend that because Jencks Act materials were not produced, the testimony of the witnesses with whom the prosecutor conducted the relevant interviews, several of whom were key witnesses for the prosecution, should be stricken from the trial record. Accordingly, appellants conclude, this court should rule that the failure to produce the prosecutor's notes was reversible error.

While we find that the district judge failed to discharge her duty to inquire into whether the notes were producible under the Jencks Act, we decline at this stage of the proceedings to hold that this failure constitutes reversible error. Instead, we remand this case for a redetermination of the Jencks Act issue. Pending such a redetermination, the appellants' conviction remain intact.

We note, to begin with, that the district judge ruled against the Jencks Act request on an erroneous legal ground. Without examining the prosecutor's notes the district judge determined that they were "work products," and accordingly held that they were not producible under the Jencks Act. However, the Supreme Court has held unequivocally that the work product doctrine does not bar the production of the notes of government attorneys that are otherwise producible under the Jencks Act. See Goldberg v. United States, 425 U.S. 94, 105-08, 96 S. Ct. 1338, 1345-47, 47 L. Ed. 2d 603 (1976).

Moreover, established precedent requires the district court to engage in an adequate inquiry into the nature of the documents before ruling against Jencks Act production. As the Supreme Court has explained:

a Government objection to production may require that the trial court inspect documents or hold a hearing to gather extrinsic evidence bearing on the extent to which the documents are statements producible under 3500. In Campbell I [Campbell v. United States, 365 U.S. 85, 81 S. Ct. 421, 5 L. Ed. 2d 428 (1961)] the Court unanimously concluded that the trial judge was obliged to conduct some inquiry into the circumstances of the witness' interview there in question. The circumstances of this case compel the same conclusion. [The defendant's] testimony raised a sufficient question under the Act to require the trial judge to conduct such an inquiry, and since we hold that the trial judge erred in exempting the material from production as attorneys' "work product," a remand for such an inquiry by the District Court is required. . . .

Goldberg, 425 U.S. at 108-09, 96 S. Ct. at 1347 (citations and footnotes omitted). Furthermore, this court has held that a district judge "has an affirmative duty to determine whether any [Jencks Act] statement exists and is in the possession of the Government and, if so, to order the production of the statement." Saunders v. United States, 316 F.2d at 346, 349 (D.C. Cir. 1963); see also Hilliard v. United States, 115 U.S. App. D.C. 86, 317 F.2d 150 (D.C. Cir. 1963). The district court's inquiry "may involve the interrogation of the witness or of the government agent, or an in camera examination of what is purported to be a statement under the statute." Saunders, 316 F.2d at 349. The district judge in this case entirely failed to make a reasonable inquiry into whether the prosecutor's notes should be produced under the Jencks Act. *fn7

Nor do we believe it is proper for this court to make the Jencks Act determination in this appeal. As a general rule, the initial determination of whether the documents constitute producible "statements" under the statute should be made in the district court. See Goldberg, 425 U.S. at 108, 96 S. Ct. at 1347 ("The Court of Appeals erred in undertaking to make the initial determination whether the materials constituted productible "statements."); id. at 109 n. 15, 96 S. Ct. at 1347 n. 15 (examination of the documents "is initially a task for the District Judge"). Accordingly, we remand for the district court to make the Jencks Act determination.

In doing so the district court should consider whether the prosecutor's notes qualify as "statements" under either section 3500(e)(1) or section 3500(e)(2) of title 18. If the notes qualify as "statements" under either subsection, they must be produced. Under section 3500(e)(1), the notes constitute the statements of witnesses if they have been "adopted or approved" by those witnesses. While prior to trial the prosecutor maintained her "very, very firm position that [the notes] . . . have not been adopted by the witnesses," Tr. 24, the Jencks determination is to be made by the court, not the prosecutor. See, e.g., Campbell v. United States, 365 U.S. 85, 92-93, 81 S. Ct. 421, 425, 5 L. Ed. 2d 428 (1961); United States v. Harrison, 173 U.S. App. D.C. 260, 524 F.2d 421, 428 (D.C. Cir. 1975); see also Palermo v. United States, 360 U.S. 343, 361, 79 S. Ct. 1217, 1229, 3 L. Ed. 2d 1287 (1959) (Brennan, J., concurring). Thus the trial court must "determine whether the prosecutor's notes were actually read back to [the witness] and whether he adopted or approved them." Goldberg, 425 U.S. at 110, 96 S. Ct. at 1348. Under section 3500(e)(2), the notes constitute statutory "statements" if they are a "substantially verbatim" account of the witness interview. Notes that "evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes" do not meet this standard. On the other hand, this standard does not require that the notes reflect a "delusive exactness." See Palermo v. United States, 360 U.S. 343, 352-53, 79 S. Ct. 1217, 1224-25, 3 L. Ed. 2d 1287 (1959). So long as the notes can be fairly characterized as the witness' own words, they should be made available to the defense. Id. at 352, 79 S. Ct. at 1224.

We do not vacate the appellants' convictions pending resolution of the Jencks Act issue. If the district court, after adequate examination of the issues, determines that the notes do not constitute Jencks Act "statements," it should supplement the record with findings and enter a new final judgment of conviction. However, if the district court finds that any of the notes should have been produced pursuant to the Jencks Act and that the error was not harmless, *fn8 the judgment of conviction should be vacated and a new trial should be conducted. See, e.g., Goldberg, 425 U.S. at 111-12, 96 S. Ct. at 1348-49; United States v. Del Toro Soto, 676 F.2d 13, 17 (1st Cir. 1982); United States v. Peters, 625 F.2d 366, 371 (10th Cir. 1980); United States v. Conroy, 589 F.2d 1258, 1273 (5th Cir.), cert. denied, 444 U.S. 831, 100 S. Ct. 60, 62 L. Ed. 2d 40 (1979). IV. HOLDING

This case is remanded to the district court for a prompt redetermination of whether the prosecutor's notes should be produced pursuant to the Jencks Act. Finding no other errors upon appeal, we do not vacate the judgment of convictions pending the resolution of the Jencks Act issue.

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