
USCA1 Opinion

	




        May 24, 1995            [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1686                                    UNITED STATES,                                      Appellee,                                          v.                                   WILLIAM HARRIS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                          and Bownes, Senior Circuit Judge.                                      ____________________                                 ____________________            Juan E.  Alvarez-Cobian, Assistant Federal  Public Defender,  with            _______________________        whom Benicio Sanchez Rivera, Federal Public Defender, was on brief for             ______________________        appellant.            Sonia  I. Torres,  Assistant  United States  Attorney,  with  whom            ________________        Guillermo  Gil,  United States  Attorney, and  Jorge E.  Vega Pacheco,        ______________                                 ______________________        Assistant United States Attorney, were on brief for appellee.                                  ____________________                                 ____________________                      BOWNES,  Senior Circuit  Judge.   In  this case  we                      BOWNES,  Senior Circuit  Judge.                               _____________________            again confront an issue that arises all too frequently:  What            are  the consequences  when the  government violates  Fed. R.            Crim.  P. 16 by failing to make timely disclosure of evidence            to which defendant  is entitled?  We  find that in  this case            there are none . . . except an admonition.                                          I.                                          I.                      Defendant-appellant, William  Harris, was indicted,            tried and convicted  by a  jury for aiding  and abetting  the            possession of cocaine by another with intent to distribute it            and for  aiding and  abetting another to  import the  cocaine            into the United States.1                      Federal  Rule  of  Criminal  Procedure  16(a)(1)  D            provides:                         (D) Reports of Examinations and Tests.                         (D) Reports of Examinations and Tests.                      Upon   request   of   a   defendant   the                      government shall permit the  defendant to                      inspect  and  copy   or  photograph   any                      results or reports of physical  or mental                      examinations, and of scientific  tests or                      experiments, or copies thereof, which are                      within   the   possession,  custody,   or                      control of the government,  the existence                      of which is known,  or by the exercise of                      due  diligence may  become known,  to the                      attorney  for  the government,  and which                      are  material to  the preparation  of the                      defense  or are  intended for use  by the                      government  as evidence  in chief  at the                      trial.                                            ____________________            1.  The  implicated statutes  are:   21 U.S.C.     841(a)(1),            952(a) and 18 U.S.C.   2.                                         -2-                                          2            Prior to trial, defendant had requested,  pursuant to Fed. R.            Crim. P.  12(d)(2),2 that  the government notify  him of  any            evidence in chief discoverable under Rule 16.                      On the first day  of trial the government announced            that a  chemist would  testify the next  day as to  the tests            made  on the cocaine seized  and the results  of those tests.            There was a prompt objection by defendant to the admission of            the  chemist's  testimony and  laboratory  reports.   Defense            counsel pointed out that  it had moved for information  as to            expert witnesses, including chemists, and their reports; that            the  motion had  been granted  by  the magistrate;  and that,            therefore, the government  had violated Fed. R.  Crim. P. 16.            Defense  counsel  argued that  because  he had  not  seen the            report  until "today"  he  could not  effectively prepare  to            cross-examine the chemist the next day because he  would need            the help of  a chemist to analyze  the report.   The district                                            ____________________            2.  The rule provides:                      At the arraignment  or as soon thereafter                      as is practicable, the defendant  may, in                      order to afford an opportunity to move to                      suppress   evidence   under   subdivision                      (b)(3)  of this  Rule, request  notice of                      the government's intention to use (in its                      evidence in chief  at trial) any evidence                      which  the defendant  may be  entitled to                      discover  under  Rule 16  subject  to any                                       _______                      relevant  limitation  prescribed in  Rule                                                           ____                      16.                      __                                         -3-                                          3            court observed that  counsel had  "all evening  to read  that            report and prepare for the cross-examination."                      The  prosecutor said  the  report was  not received            from the DEA laboratory until the day trial started, February            14, 1994,  and a  copy was  immediately furnished  to defense            counsel.   Defense counsel pointed  out that  the report  was            dated January 11,  1994, so  that the government,  albeit not            the prosecutor, had the report for over a month.                      After  listening  to  defense  counsel,  the  court            overruled his objection to  the introduction of the testimony            of  the DEA  chemist and  her laboratory  report.   The court            observed that  defense counsel was experienced  and had dealt            with  these  kind of  reports "for  many  years."   The court            concluded the hearing  on the motion to  exclude the evidence            by saying,                         You are a good lawyer and  you examine                      them closely this evening and you will be                      ready for tomorrow.  That's it.                      The next day  defense counsel, without  waiving his            objection to the introduction of this evidence, stated he was            "willing to stipulate the testimony of the chemist, as to the            fact  that the substance was  cocaine and the  amount and the            purity of that."                      Although defense counsel did not explicitly ask for            a continuance,  it is evident  from the court's  remarks that            such a request would not have been granted.                                         -4-                                          4                                         II.                                         II.                      We  start our analysis  with the  compelled finding            that  the  government  violated  Federal  Rule  of   Criminal            Procedure 16(a)(1)(D).  But this does not automatically mean,            as defense counsel seems to assume, that there must either be            a reversal or a new trial.  Unfortunately, such violations do            occur  from time  to time and  a solid  body of  case law has            developed in this area.                      The  fundamental  rule  is  that there  can  be  no            reversal  for a violation of Fed. R. Crim. P. 16 unless there            is an abuse of discretion by the trial court and prejudice to                                                         ___            defendant.   "To  obtain reversal,  the defendant  must prove            that the district court  abused its discretion which resulted            in prejudice  to the defense."   United States  v. Tajeddini,                                             _____________     _________            996 F.2d 1278, 1287 (1st Cir. 1993).  See also  United States                                                  ___ ____  _____________            v. Sepulveda, 15  F.3d 1161, 1178-89  (1st Cir. 1993),  cert.               _________                                            _____            denied, 114 S. Ct. 2714 (1994); United States v. Alvarez, 987            ______                          _____________    _______            F.2d 77, 85 (1st Cir.), cert. denied, 114 S. Ct. 147  (1993);                                    _____ ______            United States v. Nickens, 955 F.2d 112, 126 (1st Cir.), cert.            _____________    _______                                _____            denied,  113 S. Ct. 108 (1992); United States v. Caudill, 915            ______                          _____________    _______            F.2d 294, 299 (7th Cir. 1990).                      Although an argument can be made that there was  an            abuse of discretion here, we  need not consider that question            at  all.   There can be  no doubt that  defendant has utterly            failed to show any prejudice.  We have no way  of knowing how                                         -5-                                          5            the   laboratory  report  could  have  prejudiced  defendant.            Defendant's  only argument  is that  he  was denied  the time            necessary  to  go over  the  report  and prepare  for  cross-            examination.  But  unless the report  was inaccurate in  some            important respect, cross-examination would have been a futile            gesture.   Moreover, defendant had  plenty of time  to have a            chemist  of his  own choice  examine the  report  between the            verdict  and sentencing.   Any  flaws in  it could  have been            brought  to the attention of the court and subsequently to us            on  appeal.    This was  not  done.    Although there  was  a            violation of Rule 16, there was no showing of prejudice.  See                                                                      ___            United States v.  Mack, 892  F.2d 134, 136  (1st Cir.  1989),            _____________     ____            cert. denied, 498 U.S.  859 (1990).  The judgment  below must            _____ ______            be Affirmed.               Affirmed               ________                      We add  a postscript.   The United  States Attorney            has a continuing  obligation to  see to it  that the  Federal            Rules of Criminal Procedure are followed.   Here a laboratory            report  that was  an  essential element  of the  government's            proof and  clearly subject to the  disclosure requirements of            Rule  16 was  completed more  than thirty  days prior  to the            start  of trial.  For  some unexplained reason  it sat in the            DEA  office  in Miami,  Florida,  until trial  started.   The            United States  Attorney had  the primary  duty to  obtain the            report so that it could be timely disclosed to defendant.                                         -6-                                          6
