
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-2084 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      CRUZ ROSARIO-PERALTA, <br>                 A/K/A CRESCENCIO CEDEO-PERALTA, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 97-2085 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                     JOHNNY DAVID DIAZ-MORLA, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 97-2086 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      RAMON ANTONIO JAVIER, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Juan M. Prez-Gimnez, U.S. District Judge] <br> <br>                       ____________________

                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Coffin, Senior Circuit Judge, <br> <br>                    and Selya, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Jorge A. Toro-McGowan for appellant Cruz Rosario-Peralta. <br>    Benjamn Angueira-Aguirre for appellant Johnny Daz-Morla. <br>    Zygmunt G. Slominski, by appointment of the Court, for <br>appellant Ramn Antonio Javier. <br>    Michelle Morales, Assistant United States Attorney, with whom <br>Guillermo Gil, United States Attorney, and Nelson Prez-Sosa, <br>Assistant United States Attorney, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                         April 20, 1999 <br>                       ____________________

          TORRUELLA, Chief Judge.  Defendants Cruz Rosario-Peralta, <br>Johnny David Daz-Morla, and Ramn Antonio Javier were apprehended <br>after aircraft and vessels from the United States Coast Guard, <br>Customs Service, Army National Guard, and Puerto Rico Police <br>Department pursued a suspect vessel for hours off the coast of <br>Puerto Rico.  Defendants have asserted throughout that the <br>government units lost track of the original vessel and intercepted <br>their boat by mistake.  Defendants were arrested, charged, <br>convicted, and sentenced for possession of the estimated $1 billion <br>worth of cocaine dumped into the ocean during the chase. <br>          Defendants raise numerous claims on appeal, including a <br>claim that the government violated their statutory and <br>constitutional rights to discovery by refusing to disclose logs <br>from two central communications agencies that monitored the <br>pursuit.  Defendants allege that those logs are likely to contain <br>evidence of times and locations of the suspect vessel that make it <br>impossible for defendants' vessel to have been the vessel spotted <br>dumping the bales of cocaine.  Because this argument is facially <br>appealing, and because we cannot test its merits on a deeper level <br>without delving into matters outside the record, we remand this <br>case to the district court to review the disputed logs and <br>determine whether they should have been disclosed and whether their <br>nondisclosure prejudiced the defendants.  Although we remand for <br>these limited purposes, we retain jurisdiction over this appeal so <br>that we may consider defendants' other arguments (save for their <br>"sufficiency of the evidence" challenge, which we dispose of today) <br>if the district court's findings make it necessary to continue. <br>                            BACKGROUND <br>          At approximately 1:11 a.m. on October 17, 1996, a United <br>States Customs Service aircraft referred to as OMAHA 13 detected a <br>vessel approximately twenty-two nautical miles off the coast of St. <br>Thomas, U.S.V.I., traveling westbound to Puerto Rico without any <br>lights.  OMAHA 13, piloted by Pedro Rodrguez, tracked the vessel <br>for nearly two hours to a position approximately twenty nautical <br>miles off the coast of Puerto Rico, near the Fajardo lighthouse.  <br>Air Interdiction Officer James Sasser was also aboard OMAHA 13, <br>operating the radar and forward looking infrared ("FLIR") <br>surveillance and tracking system.  Sasser testified at trial that <br>OMAHA 13 established a FLIR orbit of the suspect vessel at 2:13 <br>a.m., meaning that it was orbiting the vessel at a radius of <br>approximately one and a half to two miles in order to keep it under <br>surveillance with the FLIR system.  Sasser testified that OMAHA 13 <br>continued FLIR orbits until the end of its role in the operation. <br>     OMAHA 13 was running low on fuel, so, at approximately <br>2:30 a.m., it contacted a United States Army National Guard <br>helicopter ("HAWK 514") that was in the area and requested <br>assistance.  HAWK 514, piloted by Captain Jos Roig, commander for <br>the Recognizance and Interdiction Detachment ("RAID"), arrived on <br>the scene ten to twelve minutes later.  When HAWK 514 arrived on <br>the scene, Captain Roig established visual contact with both OMAHA <br>13 and the suspect vessel, using night vision goggles and HAWK <br>514's own FLIR system.  Captain Roig communicated to OMAHA 13 a <br>description of the suspect vessel:  an approximately 25-foot long <br>vessel with two outboard engines and three persons and several <br>bales on board.  At approximately 2:50 a.m., OMAHA 13 directed HAWK <br>514 to illuminate the vessel with its "night sun," a 500-million <br>candle flood light.  When HAWK 514 did so, the suspect vessel <br>accelerated and began unloading bales into the ocean.  Captain Roig <br>testified that HAWK 514 remained over the suspect vessel and <br>continued to light the vessel until it was intercepted. <br>     OMAHA 13 also contacted the United States Coast Guard for <br>assistance in intercepting the vessel, and the Coast Guard cutter <br>MONHEGAN was directed to proceed to the area at approximately 3:00 <br>a.m.  The crew of MONHEGAN quickly determined that, due to the wind <br>and sea conditions, it would not be able to get on the scene in <br>time to be of assistance.  Nevertheless, a Customs vessel operated <br>by Special Agent Pedro Vicns and responding to OMAHA 13's request <br>for assistance arrived on the scene.  At approximately 3:03 a.m., <br>OMAHA 13 left the area to refuel and was replaced by another <br>Customs aircraft, OMAHA 85.  The Customs vessel then approached the <br>suspect vessel from astern, and the Customs crew identified <br>themselves as police officers.  The suspect vessel momentarily <br>stopped, but then accelerated again.  The Customs vessel pursued <br>and rammed the suspect vessel from astern in an attempt to disable <br>the engines.  Upon impact, defendants Rosario-Peralta and Javier <br>jumped from the suspect vessel into the water.  The Customs vessel <br>stopped to retrieve the two individuals, while the suspect vessel <br>sped away.  The Customs crew threw lines to Rosario-Peralta and  <br>Javier, but they swam away from the vessel.  After fifteen to <br>twenty-five minutes of pursuit and discussion, the defendants <br>boarded the Customs vessel and were placed under arrest. <br>     While the Customs crew did this, a Puerto Rico Police <br>Department FURA vessel that had arrived on the scene pursued the <br>suspect vessel.  The FURA vessel identified itself as the police of <br>Puerto Rico and ordered the vessel to stop.  While the vessel <br>initially refused, it finally stopped when Agent Pedro Crespo <br>threatened to neutralize its engines.  Agent Crespo then boarded <br>the vessel and placed its operator, defendant Daz-Morla, under <br>arrest.  Agent Crespo navigated the vessel to shore, and Special <br>Agent Vicns, who already had custody of Rosario-Peralta and  <br>Javier, took custody of Daz-Morla. <br>     All three defendants were taken to the Roosevelt Roads <br>base for questioning, where they signed waivers of their <br>constitutional rights and made several statements.  Rosario-Peralta <br>allegedly stated that they were fishing north of St. Thomas, but <br>did not know who the owner of the vessel was or how they obtained <br>the keys to the boat.  Javier allegedly stated that they departed <br>from the Maternillo area in Fajardo, Puerto Rico to go fishing, but <br>that he did not know who the owner of the vessel was or how they <br>obtained the keys to the boat.  Daz-Morla allegedly stated that <br>they departed the Maternillo area to go fishing around Culebra, <br>that he did not know how they obtained the keys or the vessel, and <br>that the light on the vessel burned out during the trip.  A boat <br>certificate, a tax payment receipt, and a driver's license <br>belonging to the registered owner of the vessel were found in Daz- <br>Morla's possession. <br>     At approximately 4:00 a.m., the crew of the Coast Guard <br>cutter MONHEGAN recovered 19 bales floating near the area where the <br>helicopter had witnessed the drop-off.  A Puerto Rico Police <br>maritime unit recovered 12 more bales from the same area.  Coast <br>Guard Petty Officer Christopher St. Martin field tested the <br>substance found inside one of the bales, and the substance tested <br>positive for cocaine. The 31 bales contained a total of 1,040 <br>kilograms of a substance later found by a forensic chemist to be <br>cocaine.  Later that morning, Agent Rafael Ocasio-Cruz of the <br>Canine Unit of the Puerto Rico Police Department placed Gator, a <br>canine specialized in detecting controlled substances, on the <br>vessel recovered from defendants.  Gator directed Agent Ocasio-Cruz <br>to the front of the vessel and gave a positive sign for narcotics. <br>     Defendants were charged with possession with intent to <br>distribute cocaine while on the high seas, in violation of 46 <br>U.S.C.  1903(a)(b)(l) and (f), and aiding and abetting, in <br>violation of 18 U.S.C.  2.  Defendants were indicted on these <br>charges on October 23, 1996, and entered pleas of not guilty.  <br>Following an eleven-day jury trial, guilty verdicts were returned <br>against all three defendants.  On September 7, 1997, the district <br>court imposed the maximum sentences allowed by the recommended <br>guidelines: (1) 327 months of imprisonment for defendant Rosario- <br>Peralta; and (2) 293 months of imprisonment for defendants Javier <br>and Daz-Morla.  On September 15, 1997, defendants filed timely <br>notices of appeal, challenging their convictions and sentences. <br>                            DISCUSSION <br>     Defendants raise numerous arguments on appeal.  They <br>claim: (1) that the district court's refusal to compel discovery of <br>certain materials denied defendants their statutory and <br>constitutional rights to discovery, due process, confrontation of <br>witnesses, and cross-examination; (2) that the district court <br>engaged in advocacy by interfering with the defense expert's <br>testimony; (3) that the district court erred in allowing <br>prejudicial testimony of a positive canine alert for narcotics; <br>(4) that the district court erred in refusing to allow defense <br>counsel to voir dire the canine handler outside the presence of the <br>jury; (5) that the district court erred in allowing defendants' <br>statements to be used against them at trial; (6) that the <br>government failed to prove beyond a reasonable doubt that <br>defendants possessed the bales of cocaine in question; (7) that the <br>district court erred in allowing prejudicial testimony that the <br>street value of the cocaine seized was one billion dollars; <br>(8) that the district court communicated to the jury that it had <br>already convicted defendants by issuing a gag order stating that <br>defendants were "caught" near Fajardo; (9) that the district court <br>erred in refusing to give an instruction on defendants' theory of <br>the case; and (10) that the sentences of incarceration imposed by <br>the court were excessive and contrary to the intent of the <br>sentencing guidelines.  Because we find that the district court <br>could not have properly denied the discovery -- on relevancy <br>grounds -- of one of the sets of materials requested by defendants <br>without reviewing those materials, we do not reach defendants' <br>other contentions at this time, save one.  Rather, we retain <br>jurisdiction over the appeal, but remand this case to the district <br>court with instructions to review the requested materials, <br>determine whether they should have been disclosed, and, if so, <br>determine whether defendants were prejudiced by the nondisclosure. <br>     Notwithstanding our focus on the discovery issue and our <br>postponement of decisions on defendants' other claims, we do <br>consider defendants' claim that the evidence was insufficient to <br>demonstrate their guilt beyond a reasonable doubt.  A resolution of <br>this claim in defendants' favor would obviate the need for any <br>further proceedings and would moot the discovery issue.  Defendants <br>argue that the government failed to prove beyond a reasonable doubt <br>that their vessel was the vessel spotted throwing bales of cocaine <br>into the water.  Viewing the evidence, as we must, in the light <br>most favorable to the verdict, see United States v. Noah, 130 F.3d <br>490, 493 (1st Cir. 1997), we cannot accept the defendants' <br>argument.  The evidence in this case was clearly sufficient to <br>support the defendants' convictions.  The officers involved in the <br>pursuit testified that they saw the bales being thrown from the <br>suspect vessel and that they followed the suspect vessel until it <br>was intercepted.  Defendants' attacks on this testimony are mainly <br>credibility arguments that are ill-suited to the standard of review <br>in this type of claim.  The jury heard testimony linking <br>defendants' vessel to the bales of cocaine, and defendants have not <br>adequately demonstrated that this testimony was false or <br>inaccurate.  Thus, the record amply supports a finding that <br>defendants possessed the cocaine in question beyond a reasonable <br>doubt.   <br>     The claim we focus on is defendants' allegation that the <br>district court abused its discretion in failing to compel the <br>government to produce the communication records and logs of two <br>land-based central communications agencies, codenamed "Salty Dog" <br>and "Razorback."  Defendants argue that those central <br>communications agencies maintained constant surveillance of the <br>operation and were involved in the direction, tracking, and <br>coordination of the government assets assigned to the operation.  <br>Several times prior to and during trial, defendants requested the <br>records and logs of those agencies in order to attempt to cast <br>doubt upon the testimony of the government witnesses regarding the <br>locations of the units and vessels involved.  Defendants argue that <br>the district court erred in failing to require these records and <br>logs to be produced.

     A.  The Government's Discovery Obligations <br>     Defendants cite three sources for the government's <br>obligation to disclose the records and logs: (1) Fed. R. Crim. P. <br>16(a)(1)(C); (2) Brady v. Maryland, 373 U.S. 83 (1963); and (3) the <br>Jencks Act, 18 U.S.C.  3500.  Rule 16(a)(1)(C) of the Federal <br>Rules of Criminal Procedure provides, in relevant part: <br>     Upon the request of the defendant the <br>     government shall permit the defendant to <br>     inspect and copy or photograph books, papers, <br>     documents, photographs, tangible objects, <br>     buildings or places, or copies or portions <br>     thereof, which are within the possession, <br>     custody or control of the government, and <br>     which are material to the preparation of the <br>     defendant's defense or are intended for use by <br>     the government as evidence in chief at the <br>     trial, or were obtained from or belong to the <br>     defendant. <br> <br>Fed. R. Crim. P. 16(a)(1)(C) (emphasis supplied).  Because the <br>records and logs in question were not used or intended for use by <br>the government, they were only required to be disclosed under Rule <br>16(a)(1)(C) if they were "material to the preparation of the <br>defendant[s'] defense."  Additionally, in order to succeed on a <br>claimed violation of Rule 16, a defendant must demonstrate that he <br>has been prejudiced.  See United States v. Spinosa, 982 F.2d 620, <br>631 (1st Cir. 1992); United States v. Hemmer, 729 F.2d 10, 13 (1st <br>Cir.), cert. denied, 467 U.S. 1218 (1984). <br>     Under Brady, exculpatory evidence is discoverable by the <br>defendant where it "is material to guilt or punishment."  Brady, <br>373 U.S. at 87.  In order to succeed on a Brady claim, "a defendant <br>must show that the withheld 'evidence was exculpatory, as measured <br>by its materiality.'"  United States v. Watson, 76 F.3d 4, 7 (1st <br>Cir.) (quoting Hemmer, 729 F.2d at 14), cert. denied, 517 U.S. 1239 <br>(1996).  Information is "material" "if there is a reasonable <br>probability that, had the evidence been disclosed to the defense, <br>the result of the proceeding would have been different."  SeeUnited States v. Blais, 98 F.3d 647, 651 (1st Cir. 1996) (quoting <br>United States v. Bagley, 473 U.S. 667 (1985)), cert. denied, 519 <br>U.S. 1134 (1997).  A "reasonable probability" is a probability <br>sufficient to undermine confidence in the outcome.  See Bagley, 473 <br>U.S. at 682. <br>         The Jencks Act requires the government to provide, upon <br>request, any prior statements of government witnesses that relate <br>to the subject matter of the witnesses' testimony.  See 18 U.S.C. <br> 3500(b).  A Jencks Act "statement" is: (1) a written statement <br>made, adopted, or approved by the witness; (2) a recording (or <br>transcription thereof) that is a substantially verbatim recital of <br>an oral statement made by the witness and recorded <br>contemporaneously with the making of the oral statement; or (3) a <br>statement (or transcription thereof) made by the witness to a grand <br>jury.  See 18 U.S.C.  3500(e).  The government is required to <br>produce those statements whether they are exculpatory or not.  SeeUnited States v. Stern, 13 F.3d 489, 494 (1st Cir. 1994).  In order <br>to succeed on a claimed violation of the Jencks Act, defendants <br>must demonstrate that they have been prejudiced by the failure to <br>disclose.  See United States v. Izzi, 613 F.2d 1205, 1213 (1st <br>Cir.) (citing United States v. McGovern, 499 F.2d 1140, 1143 (1st <br>Cir. 1974)), cert. denied, 446 U.S. 940 (1980). <br>           B.  Nondisclosure of the Central Communications Agency  <br>               Records and Logs <br> <br>         A review of the procedural history of this claim <br>demonstrates that it is unclear exactly what grounds the district <br>court relied on in denying this discovery request, although it <br>appears to have found that the records and logs were irrelevant.  <br>On February 7, 1997, defendants filed a motion to compel the <br>disclosure of, inter alia, the identities of all of the central <br>communications agencies used in the operation and their internal <br>logs, records, and communication tapes.  At the February 10, 1997 <br>Status Conference, the district court delayed ruling on defendants' <br>request for these materials because the court wanted to "see what <br>the government provides to [defendants]" before ruling on the <br>motion to compel.  The court then scheduled a status conference for <br>two weeks later. <br>         On February 20, 1997, the government filed a response to <br>defendants' motion to compel, claiming that the records and tapes <br>of the central communications agencies were not subject to <br>disclosure on the grounds of confidentiality.  The government <br>argued that its burden to demonstrate the need for confidentiality <br>had not yet been triggered because defendants had not yet <br>demonstrated the need for the records and tapes. <br>         At the February 24, 1997 Status Conference, defendants <br>argued that the units pursuing the vessel lost sight of it and <br>consciously avoided communicating that information on the channels <br>that were being recorded.  Defendants argued that the central <br>communication records and tapes contained evidence that the <br>pursuers lost sight of the vessel.  Without addressing the asserted <br>need for confidentiality, the district court found that defendants <br>had not demonstrated that the records and tapes were necessary and <br>denied the motion. <br>         On May 1, 1997, defendants raised the issue again in <br>their Joint Motion to Compel Additional Discovery and/or For <br>Reconsideration of Motion to Compel Discovery.  Defendants argued <br>that they needed all government communications surrounding the <br>tracking and interception of the vessel in question.  Defendants <br>attacked the government's confidentiality rationale for withholding <br>the records, claiming that the government's surveillance techniques <br>and the location of the central communications agencies had already <br>been compromised by the disclosure of the FLIR videotapes, <br>recordings, and other documents.  Defendants argued that they could <br>not assess the materiality of the records and tapes without an <br>opportunity to review them and suggested that any remaining <br>confidentiality concerns could be preserved by disclosing the <br>records and tapes to the defendants under seal. <br>         On May 8, 1997, the government filed a response to <br>defendants' motion.  In that response, the government argued that <br>no such recordings of the surveillance operation existed and that <br>the central communications logs contained classified information <br>and were irrelevant.  The government also noted that defendants had <br>already been provided with the surveillance videotapes, which <br>recorded communications between the government assets involved in <br>the tracking and apprehension of the vessel, as well as the reports <br>of all of those government assets.  The docket does not reflect a <br>resolution of defendants' May 1, 1997 joint motion by the district <br>court, even though defendants moved for a final status conference <br>or pre-trial conference to address the issues. <br>     On May 14, 1997, the third day of trial, defendants again <br>moved to compel the records and logs of "Salty Dog" and <br>"Razorback."  Defendants claimed that Pedro Rodrguez, the pilot of <br>OMAHA 13, testified that he was required to make position reports <br>to "Salty Dog" every thirty minutes and that he maintained <br>communications with his home base, "Razorback."  Defendants again <br>claimed that they were entitled to inspect and review the records <br>of "Salty Dog" and "Razorback" in order to determine whether they <br>contained any relevant information.  The district court immediately <br>denied this motion "for the same reasons that [it] denied it <br>before."  The issue did not arise again until defendants appealed. <br>       C.  Abuse of Discretion <br>     We review the district court's determinations under <br>Brady, the Jencks Act, and Rule 16 for abuse of discretion. SeeUnited States v. Brimage, 115 F.3d 73, 78 (1st Cir.), cert. denied, <br>118 S. Ct. 321 (1997); Spinosa, 982 F.2d at 630-31.  Based on the <br>information currently in the record, we find that the district <br>court abused its discretion in finding that the records and logs <br>were irrelevant without first reviewing them. <br>     Defendants' theory throughout has been that their boat <br>could not have traveled the distance between the point where the <br>bales were dumped and the point of defendants' interception in the <br>time illustrated by the FLIR videotapes.  Defendants argue that the <br>locations of the vessels and aircraft at various points in time, <br>coupled with the maximum speed of their boat under the reported <br>conditions, make it impossible for their boat to have been the <br>vessel that was spotted dumping the bales of cocaine.  Thus, the <br>exact position of the suspect vessel at various junctures was <br>critical to defendants' theory and was a disputed issue at trial.  <br>Defendants argue that the logs contain the time and position of <br>every unit in the area during the pursuit of the suspect vessel, <br>including that of HAWK 514, the National Guard helicopter that was <br>allegedly over the top of the suspect vessel the entire time.  If <br>the logs in fact contain such information, we do not see how they <br>could fail to be relevant. <br>     The government agrees that the logs contain reports of <br>the positions of the aircraft, but argues that defendants already <br>had this information.  In doing so, the government does not argue <br>that the information in the logs is irrelevant, only that the <br>defendants already possessed this information in other forms.  The <br>government cites no authority for the proposition that it may deny <br>discovery of relevant evidence on the ground that defendants <br>already have enough evidence on that issue.  Even if the <br>government were able to unilaterally deny discovery on this ground, <br>neither we nor the district court would know for certain that <br>defendants already possessed every relevant item of information <br>contained in the logs.  We can only pass upon such an issue after <br>viewing those records.  Defendants claim that the FLIR tape <br>includes instances where the government agents were specifically <br>instructed to go "off the record" so that the communications would <br>not be recorded on the FLIR tape.  Those "off the record" <br>communications may well be included in the logs of the central <br>communications agencies.  Additionally, there is the possibility <br>that the locations contemporaneously recorded in the logs will <br>differ from the testimony of the pilots of the vessels or the <br>reports filed after the incident.  Defendants already contend that <br>the positions recorded in the FLIR tapes and marked in the reports <br>do not match up with the testimony of Captain Roig or Special Agent <br>Vicns, and the logs could well provide evidence of other such <br>discrepancies.  In light of defendants' theory of the case, and in <br>light of the fact that the government does not dispute that the <br>logs contain the seemingly relevant times and locations of the <br>units in the area, we find that the district court abused its <br>discretion in finding the logs to be irrelevant without first <br>reviewing them. <br>     In addition to their relevancy arguments, defendants <br>claim: (1) that the logs constitute "statements" required to be <br>produced under the Jencks Act, and (2) that the logs are <br>exculpatory Brady material because they could have been used as <br>substantive evidence of aircraft locations and as impeachment <br>material for the cross-examination of government witnesses <br>regarding those locations.  The district court apparently denied <br>this discovery because it found that the logs were not relevant.  <br>It thus did not reach these more specific questions.  Therefore, we <br>have no determinations to review in considering defendants' Bradyand Jencks Act arguments. <br>     To answer all of these concerns, the government has <br>submitted a copy of what it proffers to be the only relevant log <br>for our review.  At oral argument, government counsel was asked <br>whether the relevant logs or records were in the possession of the <br>government.  The Court requested that government counsel obtain and <br>preserve the logs in the event that the Court found a need for <br>them.  After oral argument, the government submitted to the Court <br>a three-page copy of the October 17, 1996 morning log of the United <br>States Command Center Sector for United States Customs ("Sector"). <br>     It is not appropriate for us to consider this submission.  <br>It is elementary that evidence cannot be submitted for the first <br>time on appeal.  The district court made no rulings based upon a <br>review of the Sector log; in fact, the district court has not seen <br>it.  The log was not part of the district court record, and <br>therefore should not be part of our analysis.  Any determinations <br>that we would make regarding the relevancy of the log, its <br>exculpatory nature, or its characterization as a "statement" under <br>the Jencks Act would be the first such determinations in this case.  <br>This is not our role.  See Goldberg v. United States, 425 U.S. 94, <br>108 (1976) (holding that the Court of Appeals erred in making the <br>initial determination of whether certain materials constituted <br>"statements" producible under the Jencks Act and expressing doubt <br>that this function may ever be properly undertaken by a court of <br>appeals); United States v. North American Reporting, Inc., 740 F.2d <br>50, 56 (D.C. Cir. 1984) (citing Goldberg for the general rule that <br>the initial determination of whether documents are producible <br>"statements" under the Jencks Act should be made in the district <br>court); United States v. Sorrentino, 726 F.2d 876, 888 (1st Cir. <br>1984) (declining to examine a report to determine which portions <br>were producible when the district court had not first done so and <br>remanding to the district court with instructions to examine the <br>report, determine which portions were producible, and determine <br>whether the failure to produce those portions materially prejudiced <br>the defense). <br>     Accordingly, we retain jurisdiction over this appeal, but <br>decline to rule on any of defendants' other arguments until the <br>district court has reviewed the Sector log and any other similar <br>logs and has determined whether they were material to the <br>preparation of the defendants' defense and were therefore required <br>to be disclosed under Rule 16(a)(1)(C).  If the district court <br>determines that the logs were not discoverable under Rule <br>16(a)(1)(C), it shall determine whether the logs were required to <br>be disclosed as Brady material or as Jencks Act "statements."  If <br>the district court determines that any of the logs should have been <br>produced under Rule 16, Brady, or the Jencks Act, it shall hold a <br>hearing to determine whether the government's failure to turn over <br>that log materially prejudiced the defense.  If the district court <br>finds that the nondisclosure materially prejudiced the defense, a <br>new trial must be granted.  However, if, after reviewing the logs, <br>the district court finds either that they were not discoverable or <br>that defendants were not prejudiced by their nondisclosure, we will <br>review those determinations for abuse of discretion and then resume <br>our consideration of defendants' remaining contentions on appeal. <br>                            CONCLUSION <br>     Based on the foregoing, we retain jurisdiction over the  <br>present appeal and remand to the district court for the limited <br>purposes outlined above.  The district court is granted 90 days <br>from the date of this opinion to make the appropriate <br>determinations.  It shall do so by making written findings, and <br>shall transmit a copy thereof to the Clerk of the court.  When the <br>district court has made its determinations, counsel for both <br>parties shall notify the Court, at which time, if necessary, we <br>will decide the remaining issues raised by defendants' appeal.</pre>

</body>

</html>

