                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2000

United States v. Scott
Precedential or Non-Precedential:

Docket 99-5195




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Recommended Citation
"United States v. Scott" (2000). 2000 Decisions. Paper 159.
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Filed August 2, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-5195

UNITED STATES OF AMERICA

v.

TIMOTHY SCOTT,
       Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 98-cr-00011)
District Judge: Hon. Stephen M. Orlofsky

Submitted Under Third Circuit LAR 34.1(a)
July 18, 2000

Before: BECKER, Chief Judge, SLOVITER and
NYGAARD, Circuit Judges

(Filed August 2, 2000)

       Richard M. Roberts
       West Orange, New Jersey 07052

        Attorney for Appellant

       Robert J. Cleary
        United States Attorney
       Newark, New Jersey 07102-2535

       Norman Gross
        Assistant United States Attorney
       On the Brief
       Camden, New Jersey 08101-2098

        Attorneys for Appellee
OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Timothy Scott, who was found guilty by a jury of being a
former felon in possession of a firearm in violation of 18
U.S.C. S 922(g), appeals, complaining of the District Court's
denial of his motion to dismiss the indictment, of certain
evidentiary rulings, and of the court's allowance of a
government witness's redirect examination.

II.

Scott was arrested on April 13, 1997 by New Jersey
police officers Eugene Kennedy and Eric Ingold who found
him near the scene of a disturbance in possession of a
loaded .45 caliber semi-automatic handgun.1 Scott was
then taken to the police station for processing, during
which he was directed to remove certain articles of clothing.
At that time, Scott made several statements to the effect of:
"why are you trying to put this on me, I didn't have no
gun." App. at 593-94. Indeed, whether Scott had afirearm
or ammunition within S 922(g) was the principal contested
issue in the case. While Scott was removing his right boot
at the police station, a .45 caliber bullet fell to the floor,
and in response Scott blurted out "Oh, shit." Thereafter,
Scott ceased denying having possessed the weapon. App. at
591-95.

Scott was indicted by a federal grand jury for violation of
18 U.S.C. S 922(g).2 Scott stipulated at trial that he was a
_________________________________________________________________

1. We view the evidence in favor of the verdict winner, here the
government. See United States v. Davis, 183 F.3d 231, 238 (3d Cir.
1999).
2. 18 U.S.C. S 922(g) provides, in relevant part:

       It shall be unlawful for any person . . . who has been convicted in
       any court of, a crime punishable by imprisonment for a term
       exceeding one year . . . to ship or transport in interstate or
foreign
       commerce, or possess in or affecting commerce, anyfirearm or
       ammunition; or to receive any firearm or ammunition which has
       been shipped or transported in interstate or foreign commerce.

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convicted felon and that the weapon and ammunition in
question was moved in interstate commerce.

On January 21, 1998, the District Court entered an order
requiring the government to make available any relevant
written or recorded statements or confessions made by
Scott. The government represented in a pre-trial brief filed
in June 1998 that it did not possess any such statements
made in response to interrogation by law enforcement
officers. Shortly before the trial was scheduled to begin, the
Assistant U.S. Attorney discovered and disclosed notes of
his predecessor regarding the "Oh, shit" remark. Scott filed
a motion to suppress the statements he made during
processing denying he had been carrying a gun and the
"Oh, shit" remark that he made when the bullet fell out of
his boot. Scott contended that the delayed disclosure of the
post-arrest statements constituted a violation of the
discovery order and Fed. R. Crim. P. 16(a)(1)(A). The District
Court held a suppression hearing and thereafter denied the
motion to suppress but ordered a one week continuance to
allow Scott's counsel time to prepare to address the
statement.

In the course of trial preparation, Scott secured the
transfer from a New York prison of Raymond Smith to
testify on his behalf by use of the ex parte procedure
provided by Fed. R. Crim. P. 17(b). The Assistant U.S.
Attorney, unfamiliar with Rule 17(b) and its process,
learned of the presence of Smith, a possible defense witness
then being housed at the Camden County Jail, and
requested officers Kennedy and Ingold to interview Smith at
the jail if he was willing to talk. Smith was and the officers
interviewed him. Scott filed a pre-trial motion to dismiss
the indictment on the ground that the interview of Smith
was a violation of Rule 17(b). The District Court held a
hearing after which it denied the motion but precluded the
government from using any information obtained in the
interview with Smith. Scott's counsel chose not to present
Smith as a witness.

The matter proceeded to trial. After the defense rested,
Scott moved to have the government's representations as to
the absence of any statements made by Scott (which

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appeared on page 13 of its pre-trial brief) admitted into
evidence. This motion was denied.

The jury then returned a guilty verdict on the one count
at issue. The District Court sentenced Scott to 120 months
imprisonment and 36 months of supervised release. Scott
filed a timely appeal.

III.

A.

Scott's motion to dismiss the indictment is premised on
his claim of prosecutorial misconduct. We exercise plenary
review over a district court's legal rulings in declining to
dismiss an indictment, and we review its factualfindings
for clear error. See United States v. Nolan-Cooper, 155 F.3d
221, 229 (3d Cir. 1998). Scott contends that the action of
the prosecutor in sending officers to interrogate prospective
defense witness Smith amounted to misconduct and was
prejudicial in that the officers intimidated Smith or
otherwise caused him to change his story. Scott contends
that Smith would have testified that Scott was not in
possession of a gun at the time of his arrest, but that as a
result of the interrogation Smith was afraid to give such
testimony. Scott argues that the District Court's ruling
barring the government from using any information
acquired from the interrogation of Smith was not adequate
to avert the chilling and prejudicial effect of the
interrogation.

Fed. R. Crim. P. 17(b) provides that:

       Defendants Unable to Pay. The court shall order at any
       time that a subpoena be issued for service on a named
       witness upon an ex parte application of a defendant
       upon a satisfactory showing that the defendant is
       financially unable to pay the fees of the witness and
       that the presence of the witness is necessary to an
       adequate defense. If the court orders the subpoena to
       be issued the costs incurred by the process and the
       fees of the witness so subpoenaed shall be paid in the
       same manner in which similar costs and fees are paid

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       in case of a witness subpoenaed in behalf of the
       government.

It is well established that the purpose of Rule 17(b) "is to
`shield the theory of [a] defense from the prosecutor's
scrutiny.' " United States v. Brinkman, 739 F.2d 977, 980
(4th Cir. 1984) (quoting United States v. Meriwether, 486
F.2d 498, 506 (5th Cir. 1973)). The Advisory Committee
Notes refer to the need for a process by which defendants
unable to pay the fees of a witness necessary to an
adequate defense may obtain the issuance of a subpoena
without disclosing in advance the theory of the defense.
See, e.g., Fed. R. Crim. P. 17(b) advisory committee's note
to 1966 Amendment. However, even when there has been a
Rule 17(b) violation the defendant can obtain relief only
upon a showing "that he was prejudiced by the failure to
comply with the rule." Meriwether, 486 F.2d at 506.

In the present case, the District Court found that the
government did in fact violate Rule 17(b) and thereby
learned something about the defense strategy which it
would not otherwise have learned. However, the court
determined that the appropriate cure for such prejudice
was not dismissing the indictment, as Scott sought, but
prohibiting the government from using any information
acquired by way of that violation.

We need not decide whether the government's action
constituted a violation of Rule 17(b) because, in any event,
we find no error in the District Court's decision. The court
relied on ample authority holding that the dismissal of an
indictment for prosecutorial misconduct is an "extreme
sanction which should be infrequently utilized." United
States v. Pabian, 704 F.2d 1533, 1536 (11th Cir. 1983)
(quotation omitted); see also United States v. Holloway, 778
F.2d 653, 655 (11th Cir. 1985); United States v. Owen, 580
F.2d 365, 367 (9th Cir. 1978); cf. United States v. McKenzie,
678 F.2d 629, 631 (5th Cir. 1982) (stating that"even in the
case of the most `egregious prosecutorial misconduct,' the
indictment may be dismissed only `upon a showing of
actual prejudice to the accused' ").

The District Court's findings, which Scott does not
challenge, make clear that there was no egregious

                               5
prosecutorial misconduct in this case. Moreover, as the
court found, inasmuch as Scott did not call Smith to testify
for "tactical" reasons there was no basis tofind that the
officers' interrogation of Smith tainted his testimony. App.
at 283, 290. These findings, combined with the District
Court's order preventing the prosecution from using any
information derived from the interview, make clear that
Scott was not prejudiced by any violation of Rule 17(b). We
therefore reject Scott's contention that the court erred in
denying his motion to dismiss the indictment.

B.

Scott's second contention is directed to the District
Court's admission of certain evidence, a ruling we generally
review under an abuse of discretion standard although we
exercise plenary review over the district court's conclusions
of law. See United States v. Johnson, 199 F.3d 123, 125 (3d
Cir. 1999).

Scott's complaint about the admission of certain post-
arrest statements is based on the requirement of Fed. R.
Crim. P. 16(a)(1)(A) that upon the defendant's request the
government must disclose to the defendant and make
available for inspection, copying, or photographing"that
portion of any written record containing the substance of
any relevant oral statement made by the defendant . . . in
response to interrogation by any person then known to the
defendant to be a government agent . . . ." The District
Court initially ruled that the government had violated Rule
16 and the applicable discovery order by negligently
concealing, until a week before trial, the oral statements
which Scott made voluntarily while in police custody, and
also ruled that Scott was prejudiced thereby. To cure that
prejudice, the court granted a continuance affording
defense counsel an additional week to prepare for trial.

Neither the "Oh, shit" remark nor the assertions of
innocence fall within Rule 16. As the court stated in United
States v. Kusek, 844 F.2d 942, 948-49 (2d Cir. 1988),
under Rule 16(a)(1)(A) "the government is not required to
provide discovery of a defendant's unrecorded, spontaneous
oral statements not made in response to interrogation." The

                               6
District Court here recognized that "the government only
has to produce statements which are made in response to
interrogation by a person a defendant knows to be a law
enforcement officer." App. at 848-49.

The rule is similar elsewhere. For example, in United
States v. Cooper, 800 F.2d 412 (4th Cir. 1986), a prisoner
who had been convicted of assaulting another inmate
argued on appeal that the district court erred in admitting
into evidence an incriminating statement he made during
the assault. That statement, made in response to a
correctional officer's order to stop the assault, was: "Not
yet, I'm not finished." Id. at 416. He argued that Rule
16(a)(1)(A) barred use of the statement as evidence because
the government did not divulge this statement before trial
in response to his request. On appeal, the court held that
the statement was properly admitted, noting that"[f]or an
oral statement to be within the purview of [the Rule], it
must be made in response to interrogation." Id. (quotation
omitted); see also United States v. Bailey, 123 F.3d 1381,
1399 (11th Cir. 1997) (stating that "a defendant's voluntary
statements made to individuals that the defendant did not
know were government agents do not come within the
ambit of this rule"); United States v. Hoffman, 794 F.2d
1429, 1432-33 (9th Cir. 1986) (reversing a suppression
order where the discovery order exceeded the parameters of
Rule 16(a)(1)(A) in that it compelled disclosure of oral
statements made by the defendant not in response to
interrogation).

Indeed, shortly after its ruling the District Court here
recognized that its order went beyond the parameters of
Rule 16. On December 7, 1998, in addressing Scott's
application to have page 13 of the government's pre-trial
brief admitted into evidence, the court stated:"I believe I
may have erred in the sense that I held there was a
violation of the discovery order since the discovery order in
this case goes beyond the language of Rule 16 . . . ." App.
at 848.

Because we conclude that the statements in question did
not violate Rule 16 as they were not made in response to
interrogation, the government had no obligation to disclose
them. It follows that the one-week continuance granted by

                               7
the District Court, albeit unnecessary, was not an abuse of
discretion. Furthermore, because Scott sought to admit
page 13 of the government's pretrial brief to contradict the
government's earlier statement that it was not in
possession of any Rule 16(a)(1)(A) material, and we have
determined that that response was accurate, we reject
Scott's contention that the District Court erred in failing to
admit page 13.

C.

Finally, Scott contends that the District Court erred in
allowing questioning on redirect examination of Officer
Ingold. Scott failed to object to this examination at trial,
and therefore can secure relief only if the alleged errors are
plain error. See United States v. Thame, 846 F.2d 200, 204
(3d Cir. 1988). We see no error, much less plain error. The
redirect examination was directed to matters about which
Officer Ingold had testified on cross-examination, and
which he sought to explain on redirect examination. This is
the classic purpose of redirect examination.

IV.

In light of the above, we will affirm Scott's conviction and
sentence.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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