189 F.3d 802 (9th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.RICHARD THOMAS RILEY, Defendant-Appellant.
No. 98-50399
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted July 14, 1999Filed August 25, 1999

Joseph T. Tavano, Ronis & Ronis, San Diego, California, for the defendant-appellant.
Richard C. Cheng, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before: Melvin Brunetti, Pamela Ann Rymer, and Barry G. Silverman, Circuit Judges.
RYMER, Circuit Judge:


1
It is seldom that we see a case anymore where a government agent intentionally destroys notes of a witness interview,  for we held that the government could not do this twenty-three years ago in United States v. Harris, 543 F.2d 1247 (9th  Cir. 1976). Nevertheless, that's what happened here (perhaps  because the interview took place outside of this circuit). The  notes were the confidential informant's Jencks Act  "statement," see 18 U.S.C. S 3500, the witness was key to the  defendant's entrapment defense, and there was no substitute  for the notes except the recollections of the agent and the witness, which differed in several respects. The district court  found that the government violated the Jencks Act, albeit not  in bad faith, and that the defendants were prejudiced. Instead  of striking the testimony, however, the court offered to allow further cross-examination and to instruct the jury that the  notes had been improperly destroyed.


2
Richard Riley appeals from his jury conviction for conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. SS 841(a)(1) and 846, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. S 841(a)(1), asserting error in the court's refusal to strike the  witness's testimony. Although the district court's lesser sanction was sensible in light of cross-examination that had already seriously impaired the informant's credibility, we cannot say that the Jencks Act error was harmless in this case. As  we have jurisdiction pursuant to 28 U.S.C. S 1291, we  reverse.


3
* Riley was caught by a government reverse sting operation  in which he purchased 125 pounds of marijuana from undercover agents. His erstwhile confederate, James Dufriend,  cooperated with the government in this operation. Riley  argues that Dufriend, in an effort to obtain leniency from the  government, coaxed him into committing the crime. In short,  Riley claims he was entrapped.


4
Dufriend was a fugitive who decided to cut a deal with the  government by volunteering information about a planned drug  conspiracy. He voluntarily surrendered to the authorities on  March 14, 1997, and cooperated with the Drug Enforcement  Administration. He allowed the DEA to install hidden cameras in his home and to monitor his phones. Through these  means, the government managed to obtain video- and audiotapes of Riley planning and discussing the drug transaction  with his co-conspirators, Dufriend and David Nunziato. Additionally, the DEA recorded conversations between Riley and  DEA agents posing as drug dealers.


5
In the end, Riley negotiated the deal and purchased 125  pounds of marijuana from the undercover agents. The evidence of Riley's involvement in the drug transaction was  overwhelming. Riley's only defense was that he was entrapped by Dufriend.


6
At trial, Dufriend's testimony directly undermined Riley's defense. First, Dufriend's testimony supported the inference  that Riley was predisposed to commit the crime. According to  Dufriend, Riley told him in 1989 that he had previously  smuggled marijuana into the United States using a small sailboat. At the time of this conversation, Dufriend was assembling an experimental aircraft partly owned by Riley.  Dufriend testified that the two also discussed the fact that the  plane would be good for smuggling operations. It was this  plane (the "Velocity") that became the centerpiece of the  planned smuggling operation.


7
Second, Dufriend's testimony subverted Riley's claim that  he was induced into committing the crime. Dufriend asserted  that it was Riley who first brought up the idea of smuggling  marijuana. According to Dufriend, this occurred at a meeting  between Riley, Dufriend, and co-conspirator Nunziato in Saranac Lake, New York, in November 1996. He also testified that the three co-conspirators further discussed the proposal  the next day. Dufriend claims that it was only after this proposal that he saw the opportunity to find favor with the government.


8
Contradicting Dufriend's testimony, Riley testified that he  never had any conversation with Dufriend about marijuana  trafficking until March 1997, around the time that Dufriend  surrendered himself to the authorities. Riley denied discussing  the use of the Velocity as a smuggling device or telling Dufriend that he had smuggled marijuana into the United  States. He also denied proposing or even discussing smuggling at the Saranac Lake meeting, and he denied meeting  with Dufriend and Nunziato the following day.


9
According to Riley, Dufriend was the first to suggest smuggling marijuana. Riley claimed that he had no intention of  joining Dufriend, but Dufriend relentlessly hounded him to  join the proposed operation. According to Riley, Dufriend  pleaded for help, claiming that he was broke and had to have  money because his wife needed surgery for a brain tumor.  Additionally, Riley testified that Dufriend would not finish  work on the Velocity (effectively holding Riley's investment  hostage) unless Riley agreed to help.


10
Agent Ryan interviewed Dufriend for several hours at the  time of Dufriend's surrender and took notes during the interview. After summarizing the interview in a two-page report,  Ryan destroyed the original notes. Ryan also took notes during a subsequent two-hour interview with Dufriend, which  occurred on May 16, 1997. Ryan summarized the interview in  a reportand, once again, destroyed his original notes. Additionally, Ryan testified that he may have destroyed notes  taken during other interviews of Dufriend.


11
Dufriend testified that during the interviews, Ryan would  read back the notes to Dufriend to make sure that they were  accurate. According to Dufriend, at the March 14 meeting, he  told Ryan he had recently been approached about a scheme to  smuggle marijuana. He also told Ryan that there was someone  higher in the hierarchy than Nunziato, and that he was to find  a source for the drugs.


12
Ryan's report states that Dufriend, Riley, and Nunziato had  been smuggling drugs together for ten years. Dufriend testified that he did not tell Ryan this. In addition, the report does  not mention the "higher up" that Dufriend testified he told  Ryan of. Nor does it mention that Dufriend was to find a  source for the drugs. It also identifies Riley as "John Riley,"  while Dufriend testified that he never used that pseudonym  but called Riley by his given name, "Richard."


13
Riley and his co-defendant, Nunziato, moved to strike  Dufriend's testimony on the ground that Ryan's destruction of  his original notes violated the Jencks Act. The district court  found that Dufriend had adopted Ryan's notes for purposes of  the Jencks Act, making the rough notes Jencks Act material.  After considering the culpability of the government and the  injury to Riley, the court declined to strike Dufriend's testimony. It found that Ryan did not destroy the notes to hide  anything, but that Dufriend's testimony was key to the government's case and the defendants had been prejudiced to  some extent. At the same time, it noted that Dufriend had  squirmed on the stand and was evasive, and that his credibility had been undermined by cross-examination. Therefore, the  court allowed Riley to recall Dufriend and Ryan (which he  did not do), and instructed the jury that the notes were  improperly destroyed.


14
Riley timely appealed.

II

15
The Jencks Act mandates that after a witness called by the United States testifies on direct, the United States must, on  motion by the defendant, produce any statement of the witness in the possession of the United States that relates to the  subject matter testified to by the witness. See  18 U.S.C.  S3500(b). A "statement," as defined by the Jencks Act,  includes "a written statement made by said witness and signed  or otherwise adopted or approved by him." 18 U.S.C.  S 3500(e)(1). The Act provides sanctions for noncompliance:


16
If the United States elects not to comply with an  order of the court under subsection (b) or (c) hereof  to deliver to the defendant any such statement, or  such portion thereof as the court may direct, the  court shall strike from the record the testimony of  the witness, and the trial shall proceed unless the  court in its discretion shall determine that the interests of justice require that a mistrial be declared.


17
18 U.S.C. S 3500(d). Federal Rule of Criminal Procedure  26.2, which basically implements the Jencks Act, states:


18
If the other party elects not to comply with an order  to deliver a statement to the moving party, the court  shall order that the testimony of the witness be  stricken from the record and that the trial proceed,  or, if it is the attorney for the government who elects  not to comply, shall declare a mistrial if required by  the interest of justice.


19
Fed. R. Crim. P. 26.2(e); see also Fed. R. Crim. P. 26.2 advisory committee notes.


20
Despite the mandatory ring of these provisions, a district court has discretion to refuse to impose sanctions for  noncompliance, see United States v. Echeverry , 759 F.2d  1451, 1456 (9th Cir. 1985), and Jencks Act violations are subject to harmless error analysis. See Rosenberg v. United  States, 360 U.S. 367, 371 (1959). The inquiry tends to collapse in our cases. Generally, a court's decision to strike a  witness's testimony for failure to comply with the Jencks Act  "should rest on (1) a consideration of the culpability of the  government for the unavailability of the material and (2) the  injury resulting to the defendants." United States v. Sterling,  742 F.2d 521, 524 (9th Cir. 1984); see also United States v.  Finnegan, 568 F.2d 637, 642 (9th Cir. 1977). While a defendant need not prove prejudice to show a violation of the  Jencks Act, see United States v. Well, 572 F.2d 1383, 1384  (9th Cir. 1978), when there is no prejudice, a witness's testimony need not be stricken. See, e.g., Sterling, 742 F.2d at 525  (missing grand jury transcript was duplicative of other pretrial  testimony that was given to defense counsel, counsel was able  vigorously to cross-examine based on available materials, and  witness's testimony was not necessary to prove the charges  against the defendant). Thus, a new trial is only demanded by the failure to produce Jencks Act material if "substantial  rights of appellant were affected by the failure to make that  statement available." United States v. Johnson, 521 F.2d  1318, 1320 (9th Cir. 1975).


21
The government does not dispute the district court's  finding that Ryan's notes were a "statement" covered by the  Jencks Act, see United States v. Ogbuehi, 18 F.3d 807, 81011 (9th Cir. 1994) (recognizing that interview notes read back to and confirmed by the witness may be a Jencks Act statement), or that it was wrong for Ryan to destroy the original  notes he took of the conversation with Dufriend. Indeed,  whether or not it was routine for Ryan to do so, destroying the  notes was "manifestly unreasonable" and is "no less a violation of the Jencks Act because it was pursued in good faith."  United States v. Carrasco, 537 F.2d 372, 376 (9th Cir. 1976).


22
Rather, the government contends that the sanctions  imposed were within the court's discretion because the case  against Riley was strong, the witness "statement " in this case  consisted of the agent's rough notes (not a writing by the witness), and it is hard to see how Riley was harmed. Although  close, we do not agree. While the district court rested its decision on the correct factors, we cannot say the Jencks error was  harmless given the fact that the statement was intentionally  destroyed, there was no substitute for it except the recollections of the key witnesses themselves, Dufriend was the principal witness whose testimony was critical to Riley's  entrapment defense, and the district court found prejudice.


23
Of all the cases we have considered, Carrasco  is factually  the closest. There, a government informant kept a handwritten  diary of events leading up to a heroin bust. A DEA agent said  he substantially incorporated the diary into his final report  before shredding it in accordance with DEA procedures. See Carrasco, 537 F.2d at 376-77. After holding that the diary  constituted a statement under the Jencks Act, we went on to  analyze whether the error was harmless. See id. at 377. We  suggested that it could be if the agent's final report fully  incorporated the witness's notes or the defendants' guilt was  established beyond a reasonable doubt by competent testi- mony other than the witness's testimony. See id. However, we  were unpersuaded that the failure to comply with the Jencks Act resulted in harmless error because it was impossible to  reconstruct the contents of the destroyed document except by  using the very witnesses whose testimony the defendant  sought to impeach, and because the informant's testimony and  credibility were critical to entrapment--the defendant's only  defense. In Carrasco, as in this case, the conviction "could be  sustained only if we were to conclude that the defense of  entrapment was unavailable as a matter of law. While the evidence suggesting entrapment was sparse, it was sufficient to  get the defense to the jury." Id. at 378. This being thecase, we concluded that the testimony should have been stricken.  See id.


24
Likewise, in Well, we were concerned with destruction of  critical witness statements for which there was no substitute.  There, a postal agent tape-recorded interviews of the three  principal government witnesses, summarized the interviews,  and then taped over the original recordings. Noting that  "Carrasco held that sanctions are to be imposed under the  Jencks Act if a producible statement has been destroyed and  the information in the destroyed statement is not otherwise  available," Well, 572 F.2d at 1384, we upheld the district  court's order granting a mistrial and suppressing the witnesses' testimony.


25
By contrast, we have not required that testimony be  stricken where a substitute for the missing statement was  available. For example, in Echeverry, the Jencks Act statement was "generally duplicative of information previously  disclosed to defense counsel" and the defense was "not deterred from a thorough cross-examination." 759 F.2d at  1456. In Sterling, the Jencks Act material was "essentially  duplicative of other . . . pretrial testimony" and the witness's  testimony "was not necessary to prove the charges against the  defendant." 742 F.2d at 525. In Finnegan, a vigorous crossexamination was possible because the "notes of an investigator who was present throughout the interview were produced and utilized by the defense." 568 F.2d at 642. And in Harris, we held that the refusal to strike testimony was harmless error  because the defense did not contend that the agent's final  report was incomplete or inaccurate. See 543 F.2d at 1253;  see also Rosenberg, 360 U.S. at 371 ("[W]hen the very same  information was possessed by defendant's counsel as would  have been available were error not committed, it would offend  common sense and the fair administration of justice to order  a new trial."); cf. United States v. McKoy, 78 F.3d 446, 45052 (9th Cir. 1996) (affirming mistrial where Jencks Act discovery was negligently produced but reversing suppression  because the Jencks material would be available for cross-examination at new trial).


26
While more limited sanctions than striking the witness's  testimony might be appropriate in some other circumstances,  we do not see how recalling Ryan or Dufriend could cure the  problem in this case. Both had been impeached, and the jury  already knew that their recollections differed about what  Dufriend told Ryan. Without Dufriend's statement (embodied  in Ryan's notes), there was nothing to be gained from further  cross-examination. More importantly, the case turned on  whether the jury believed Riley's version or Dufriend's version of who enlisted whom. If Dufriend's testimony had been relevant only to Riley's involvement in the purchase of marijuana, then it might have been "superfluous" and not striking  it harmless in light of the tapes which captured Riley in the  act. See Carrasco, 537 F.2d at 378. But we cannot say that  Dufriend's testimony was superfluous given Riley's defense.  We simply cannot tell without the notes. This is the Catch-22  caused by the destruction of the notes. But since it was of the  government's doing, it must live with the consequences. "As  our ignorance, and inability to remedy it, are caused totally by  the conduct of the government, we are forced to infer that the  [Ryan] report did not fully incorporate [Dufriend's statement]." Id. at 377. Nor in this case can instructing the jury  that Ryan should not have destroyed the notes substitute for  the notes themselves.


27
In sum, we are not persuaded that the error is harmless  in view of the lack of any substitute for Dufriend's statement  other than the recollections of Dufriend and Ryan, the critical  nature of Dufriend's testimony on Riley's entrapment  defense, and the district court's finding of prejudice. This, combined with the intentional (albeit good faith) destruction  of the notes, leadsus to conclude that we must reverse.1


28
REVERSED.



Notes:


1
 In view of this disposition, we have no need to consider Riley's additional arguments that destruction of the interview notes violated his Sixth Amendment rights and his right to due process.


