In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-4296, 98-4323, 99-2607 & 99-2676

United States of America,

Plaintiff-Appellee,

v.

Gary V. Moore, Aaron R. Wyatt, Michael A. Wyatt,
and Dwayne Anthony,

Defendants-Appellants.



Appeals from the United States District Court
for the Southern District of Illinois.
No. 98-40002-JPG--J. Phil Gilbert, Chief Judge.


Argued January 14, 2000--Decided March 29, 2000



  Before Flaum, Easterbrook, and Ripple, Circuit Judges.

  Easterbrook, Circuit Judge. Four defendants,
convicted of crimes related to cocaine, have
received stiff sentences. Details of the offenses
are not relevant. One of the four appeals is not
properly here at all. Michael Wyatt pleaded
guilty, was sentenced to 192 months’
imprisonment, and appealed. Yet, as part of his
plea bargain, Michael Wyatt waived his right to
appeal, and nothing in the record suggests that
the waiver is involuntary or otherwise
problematic. We grant the prosecutor’s motion to
dismiss his appeal, see United States v. Wenger,
58 F.3d 280 (7th Cir. 1995), and confine this
opinion to the contentions of the other
defendants.

  Gary Moore, the only one of the four to stand
trial, sought to cross-examine Michael Wyatt
(testifying for the prosecution as part of his
plea bargain) about a handwritten note that bears
his signature and is notarized. This note reads:

I Michael Wyatt did Not agreed with Aaron
Wayt Wyatt or Gary MooRe or cory at any
time to sell Drug’s

It is a peculiar note, and not only because it
looks like Michael Wyatt had trouble spelling his
own family name. The words "to sell Drug’s" are
in a blue ink, while the rest of the test is in
black, raising the possibility that two people
(perhaps at different times) were responsible for
the text. Before counsel could get to any
questions about the authenticity and provenance
of this document, however, the district judge
excluded it from evidence on the ground that, by
failing to give it to the prosecutors before
trial, Moore’s lawyer violated Fed. R. Crim. P.
16.

  Moore’s lawyer did not join issue on the
subject. He seemingly wanted the judge to
transcend the rules of evidence and criminal
procedure in general. That’s not a winning line
of argument, for courts are entitled to exclude
evidence that should have been produced during
reciprocal discovery in criminal cases. Taylor v.
Illinois, 484 U.S. 400 (1988). Sticking to the
details would have done Moore more good, because
it is hard to see why Moore had to tip his hand
before trial. Of all the discovery requirements,
only Rule 16(b)(1)(A) speaks to materials such as
handwritten notes in a defendant’s possession. It
says:

If the defendant requests disclosure under
subdivision (a)(1)(C) or (D) of this rule,
upon compliance with such request by the
government, the defendant, on request of
the government, shall permit the
government to inspect and copy or
photograph books, papers, documents,
photographs, tangible objects, or copies
or portions thereof, which are within the
possession, custody, or control of the
defendant and which the defendant intends
to introduce as evidence in chief at the
trial.

Because Moore received discovery from the
prosecutor, he had to furnish in exchange
tangible evidence "which the defendant intends to
introduce as evidence in chief at the trial." Yet
Moore did not seek to use the note "as evidence
in chief at the trial." He tried to use it as a
prior inconsistent statement by Michael Wyatt
that would undermine his credibility in the
jurors’ eyes. At oral argument in this court the
prosecutor contended that, because either Michael
Wyatt or someone else would have to establish the
authenticity of the document, this testimony
would be "evidence in chief". That assertion
sorely misunderstands what it means to offer
"evidence in chief" (or evidence in one’s "case
in chief"). Preliminary issues of admissibility
are argued to the court. Fed. R. Evid. 104(a).
They are neither part of the case in chief nor
part of the defense. Rule 16(b)(1)(A) speaks to
how the evidence is used, not to how it is
introduced. Moore sought to use the note to
impeach the testimony of a witness for the
prosecution; it was not properly excludable under
Rule 16.

  None of this does Moore any good, however,
because he did not argue the substance of Rule 16
in the district court, or for that matter in his
appellate brief. Only plain error could justify
reversal, and plain error entails, among other
things, a conclusion that enforcing the
forfeiture would condone a miscarriage of
justice. United States v. Olano, 507 U.S. 725,
736 (1993). No miscarriage occurred here. Moore
had ample opportunity to show the jurors Michael
Wyatt’s shortcomings as a witness and as a
person. Quite apart from Michael Wyatt’s
testimony, the evidence against Moore was
compelling, and a conviction was foreordained.

  None of the defendants’ other contentions
requires discussion. The most important of these,
an argument that the kind and quantity of drugs
must be treated as elements of the offense under
21 U.S.C. sec.841 in light of Jones v. United
States, 526 U.S. 227 (1999)--has been resolved by
an opinion issued after the oral argument of this
case. See United States v. Jackson, No. 98-2696
(7th Cir. Mar. 23, 2000). See also United States
v. Edwards, 105 F.3d 1179, 1180 (7th Cir. 1997),
affirmed, 523 U.S. 511 (1998). All of the rest
have been considered, and we approve the district
court’s disposition of each. The appeal of
Michael Wyatt, No. 99-2607, is dismissed in
conformity with his plea agreement. In the other
three appeals, the judgments are affirmed.
