     07-0224-cr
     USA v. Siraj


 1                          UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2007
 6
 7
 8   (Argued: June 16, 2008                        Decided: July 9, 2008)
 9
10                              Docket No. 07-0224-cr
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   UNITED STATES OF AMERICA,
15
16                      Appellee,
17
18                  - v.-
19
20   SHAHAWAR MATIN SIRAJ,
21
22                      Defendant-Appellant.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:             JACOBS, Chief Judge, Straub, Circuit
27                             Judge, and Jones, District Judge.*
28
29         Appeal from a judgment of conviction entered on January

30   18, 2007 in the United States District Court for the Eastern

31   District of New York (Gershon, J.).          Among other challenges

32   to his conviction, the appellant contends that he was

33   entitled, under Federal Rule of Criminal Procedure


           *
            The Honorable Barbara S. Jones, of the United States
     District Court for the Southern District of New York,
     sitting by designation.
1    16(a)(1)(B)(i), to discover police reports containing the

2    substance of statements he made to an undercover police

3    officer.   For the following reasons, and for those reasons

4    discussed in an accompanying summary order, we affirm.

5

 6                                 MARSHALL L. MILLER (David C.
 7                                 James and Todd Harrison, on the
 8                                 brief), Assistant United States
 9                                 Attorneys for Benton J.
10                                 Campbell, United States
11                                 Attorney, Eastern District of
12                                 New York, Brooklyn, NY for
13                                 Appellee.
14
15                                 ROBERT J. BOYLE, New York, NY
16                                 for Appellant.
17
18   DENNIS JACOBS, Chief Judge:
19
20       Shahawar Matin Siraj (“Matin”) appeals from a judgment

21   entered January 18, 2007 in the Eastern District of New York

22   (Gershon, J.) convicting him of various offenses arising out

23   of a conspiracy to bomb the Herald Square subway station in

24   midtown Manhattan.   Because most of Matin’s arguments are

25   defeated by well settled law, we consider them in an

26   accompanying summary order.    We write to resolve a single

27   issue of first impression: whether written police reports

28   that memorialize oral statements made by a defendant to an

29   undercover officer must be produced upon demand under


                                    2
1    Federal Rule of Criminal Procedure 16(a)(1)(B)(i).     We hold

2    that they do not.

3

4                              BACKGROUND

5          Between November, 2002 and April, 2004, Matin spoke

6    many times with an undercover New York City Police (“NYPD”)

7    officer who operated under the assumed name of Kamil Pasha.

8    After speaking with Matin, Pasha would relay Matin’s

9    statements to his NYPD handler; and the handler would create

10   a written report containing the substance of Matin’s

11   statements.   The government concedes that it did not give

12   the NYPD reports to Matin in response to his pre-trial

13   discovery request under Federal Rule of Criminal Procedure

14   16.

15         Matin argues that he was entitled to get the reports

16   under subsection (a)(1)(B)(i) of Rule 16, and that he was

17   prejudiced by the government’s failure to produce them.

18

19                             DISCUSSION

20                                 I

21         In determining whether the prosecutor was required to

22   disclose the NYPD reports under Federal Rule of Criminal


                                   3
1    Procedure 16, we begin with the relevant portion of the

2    text:

 3                 (A) Defendant’s Oral Statement.
 4            Upon a defendant’s request, the
 5            government must disclose to the defendant
 6            the substance of any relevant oral
 7            statement made by the defendant, before
 8            or after arrest, in response to
 9            interrogation by a person the defendant
10            knew was a government agent if the
11            government intends to use the statement
12            at trial.
13
14                 (B) Defendant’s Written or Recorded
15            Statement. Upon a defendant’s request,
16            the government must disclose to the
17            defendant, and make available for
18            inspection, copying, or photographing,
19            all of the following:
20
21                 (i) any relevant written or recorded
22            statement by the defendant if:
23
24                •    the statement is within the
25                     government’s possession,
26                     custody, or control; and
27
28                •    the attorney for the government
29                     knows--or through due diligence
30                     could know--that the statement
31                     exists;
32
33                 (ii) the portion of any written
34            record containing the substance of any
35            relevant oral statement made before or
36            after arrest if the defendant made the
37            statement in response to interrogation by
38            a person the defendant knew was a
39            government agent . . . .
40
41   Fed. R. Crim. P. 16(a)(1) (emphases added).   Matin was


                                  4
1    (concededly) unaware that Pasha was a government agent, and

2    does not contend on appeal that he was entitled to the

3    reports under subsections 16(a)(1)(A) or (a)(1)(B)(ii).

4    Rather, he characterizes his statements--as embodied in the

5    NYPD reports--as “written or recorded statement[s] by the

6    defendant,” and argues that they were therefore discoverable

7    under Rule 16(a)(1)(B)(i).

8        Rule 16(a)(1)(B) distinguishes between two types of

9    “Written or Recorded” statements.   Subsection (i) makes

10   discoverable all “relevant written or recorded statement[s]

11   by the defendant” that the prosecutor could reasonably know

12   are within the “government’s possession, custody, or

13   control.”   Subsection (ii) makes discoverable certain

14   portions of “written record[s] containing the substance of

15   any relevant oral statement” made by the defendant--“if the

16   defendant made the statement in response to interrogation by

17   a person the defendant knew was a government agent.”

18       Matin argues that he was entitled to his statements

19   under subsection (i) because the “substance of [his]

20   relevant oral statement[s],” Fed. R. Crim. P.

21   16(a)(1)(B)(ii), became “written or recorded statement[s]

22   [of] the defendant” for purposes of subsection (i), when


                                   5
1    they were reduced to writing in the NYPD reports.

2          We decline to adopt Matin’s proposed reading of Rule

3    16.   Accord United States v. McClure, 734 F.2d 484, 493

4    (10th Cir. 1984).   Two closely related rationales inform our

5    holding.

6          First, Matin’s reading creates redundancy in the

7    statute.   If the substance of a defendant’s oral statements

8    could be discovered under subsection (i) as soon as it is

9    embodied in a written record, then every statement

10   discoverable under subsection (ii) would also be

11   discoverable under subsection (i).   Matin’s proposed

12   construction would therefore violate the “‘well-settled’

13   principle ‘that courts should avoid statutory

14   interpretations that render provisions superfluous,’” In re

15   Nassau County Strip Search Cases, 461 F.3d 219, 227 (2d Cir.

16   2006) (quoting State St. Bank & Trust Co. v. Salovaara, 326

17   F.3d 130, 139 (2d Cir. 2003)).

18         Second, by explicitly designating as discoverable only

19   those written memorializations of oral statements made in

20   response to interrogation by a known government agent under

21   subsection (a)(2)(B)(ii), Rule 16 implicitly excludes from

22   its scope written memorializations of other oral statements


                                   6
1    such as those at issue here.     Adopting Matin’s reading of

2    the term “written or recorded statement” would undermine

3    that purpose by rendering discoverable any oral statement

4    later embodied in a written report within the government’s

5    “possession, custody, or control.”

6

7                                    II

8        Our holding is not inconsistent with United States v.

9    Johnson, 525 F.2d 999, 1003-04 (2d Cir. 1975), which held

10   that a government agent’s written summary of a defendant’s

11   oral statement was discoverable as a “written or recorded

12   statement” under the 1966 version of Federal Rule of

13   Criminal Procedure 16.   Johnson does not control this case

14   because the 1966 version of Rule 16 differs from today’s

15   version in a crucial respect:        it contained no analog to

16   subsection (a)(1)(B)(ii).     And it is upon subsection

17   (a)(1)(B)(ii) that our holding rests.

18

19                               CONCLUSION

20      For the foregoing reasons, and for those stated in the

21   accompanying summary order, we affirm.




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