Before TAMM, WALDAND SCALIA, Circuit Judges. Opinion for the Court filed by Circuit Judge WALD.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1984.CDC.202
Appeals from the United States District Court For the District of Columbia (Criminal No. 83-00021).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD
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 ...