Filed: Jun. 10, 1997
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _ No. 91-8610 No. 94-50789 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROY LEE HODGKISS, Defendant-Appellant. Appeals from the United States District Court For the Western District of Texas June 10, 1997 Before WIENER and EMILIO M. GARZA, Circuit Judges, and LITTLE,* Chief District Judge. PER CURIAM: Roy Lee Hodgkiss petitions for rehearing of our most recent decision in this case.1 He alleges that the Court erred in (1) affirming the distr
Summary: UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _ No. 91-8610 No. 94-50789 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROY LEE HODGKISS, Defendant-Appellant. Appeals from the United States District Court For the Western District of Texas June 10, 1997 Before WIENER and EMILIO M. GARZA, Circuit Judges, and LITTLE,* Chief District Judge. PER CURIAM: Roy Lee Hodgkiss petitions for rehearing of our most recent decision in this case.1 He alleges that the Court erred in (1) affirming the distri..
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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 91-8610
No. 94-50789
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY LEE HODGKISS,
Defendant-Appellant.
Appeals from the United States District Court
For the Western District of Texas
June 10, 1997
Before WIENER and EMILIO M. GARZA, Circuit Judges, and LITTLE,*
Chief District Judge.
PER CURIAM:
Roy Lee Hodgkiss petitions for rehearing of our most recent
decision in this case.1 He alleges that the Court erred in (1)
affirming the district court’s findings regarding the Jencks Act,
*
District Judge of the Western District of Louisiana,
sitting by designation.
.
1
We will not repeat here the facts and procedural history
of this case. They may be found in our unpublished opinion of
September 16, 1996 and in United States v. Thomas, 12 F.3d 1350,
1363-64 (5th Cir.), cert. denied, __ U.S. __,
114 S. Ct. 1861,
128
L. Ed. 2d 483 (1994).
18 U.S.C. § 3500, (2) concluding that there was no proof that the
government failed to provide all the debriefing notes at issue, and
(3) determining that the district court’s findings on the Brady2
and Jencks Act issues were sufficiently detailed to permit review.
We grant Hodgkiss’ petition for rehearing in part and deny it in
part. We also affirm the judgments of the district court as well
as Hodgkiss’ conviction and sentence.
I
Hodgkiss maintains that we erred in affirming the district
court’s findings that no Jencks Act material exists in the agents’
debriefing notes. He argues that these notes are statements
related to the subject matter on which the agents testified, and
thus should have been produced under the Jencks Act. We review a
district court’s decisions regarding discovery under the Jencks Act
for clear error. United States v. Medel, 592 F.2d 1305, 1316 (5th
Cir. 1979).
The Jencks Act requires that the government provide the
defendant with witness statements that relate to the subject matter
on which the witness has testified. 18 U.S.C. §§ 3500(b), (e)(1).
A “statement” includes a written statement made by the witness and
signed or otherwise adopted or approved by him. 18 U.S.C.
§ 3500(e)(1).
We find that the debriefing notes are statements of the
debriefing agents. See Clancy v. United States, 365 U.S. 312, 313,
2
Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed.
2d 215 (1963).
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81 S. Ct. 645, 646,
5 L. Ed. 2d 574 (1961) (finding that memoranda
prepared by government agents in the case were statements for
purposes of the Jencks Act); United States v. Sink,
586 F.2d 1041,
1050 (5th Cir. 1978) (holding that memorandum report prepared by
government agent from his notes and recollection of interviews with
various witnesses and verified for accuracy by another agent was
clearly a statement under the Jencks Act as to the two agents),
cert. denied,
443 U.S. 912,
99 S. Ct. 3102,
61 L. Ed. 2d 876
(1979). Moreover, we find that these statements generally relate
to the subject matter of the agents’ testimony. The debriefing
notes and the agents’ testimony both touch on Hodgkiss’ relations
with various codefendants and on the criminal enterprise in which
he was engaged.3 Hence, the district court clearly erred in
finding that the debriefing notes were not Jencks Act material.
However, we find this error harmless.4 An error may be
3
Contrary to Hodgkiss’ suggestion, though, we see no
evidence in the record indicating that any of the agents “based”
his or her testimony in whole or part on the debriefing notes.
4
Relying on United States v. Welch, 817 F.2d 273, 274 (5th
Cir.) (“Welch II”), cert. denied,
484 U.S. 955,
108 S. Ct. 3501,
98
L. Ed. 2d 376 (1987), Hodgkiss claims that, when this Court
concludes that the district court erred in not requiring the
production of Jencks material, our “usual practice” is to permit
defendants to view Jencks Act statements and file a supplemental
brief before we address the issue of harmless error. However,
neither Welch II, nor any other case in this circuit, stands for
such a proposition. In United States v. Welch,
810 F.2d 485 (5th
Cir. 1987), we remanded to permit the district court to conduct an
in camera hearing to determine whether a government agent’s
investigation reports were Jencks material. On remand, the
district court found that the government’s failure to provide two
Jencks Act statements at trial was harmless error. In Welch II, we
conducted our own review of the agent’s testimony and the
investigation reports and found them substantially the same. Thus,
we affirmed the district court.
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harmless where there is no substantial deviation between the
witness’ prior statements and trial testimony, Welch II, 817 F.2d
at 274, or where the witness’ statements corroborated his
testimony. United States v. Anderson,
574 F.2d 1347, 1356 (5th
Cir. 1978). An error may also be harmless where the same
information was given to the defense in some other form during
trial, Rosenberg v. United States,
360 U.S. 367, 371,
79 S. Ct.
1231, 1234,
3 L. Ed. 2d 1304 (1959), or when it has no “substantial
influence” on the judgment. United States v. McKenzie,
768 F.2d
602, 609 (5th Cir. 1985) (citation omitted), cert. denied,
474 U.S.
1086,
106 S. Ct. 861,
88 L. Ed. 2d 900 (1986).
We have examined the agents’ testimony and the debriefing
notes, and have found no substantial deviation between them. These
notes would not have been useful in attempting to impeach the
agents’ testimony. See Gaston, 608 F.2d at 612 (noting that a
government agent’s interview report that is producible as a Jencks
Act statement may only be used to impeach the agent’s testimony).
In short, the district court’s error here did not substantially
influence Hodgkiss’ conviction.
II
Next, Hodgkiss contests our finding that “[t]here is no proof
The usual practice in this circuit in Jencks Act appeals such
as this one is to conduct a harmless error review immediately
after determining that the district court has erred. See, e.g.,
United States v. Gaston, 608 F.2d 607, 612 (5th Cir. 1979)
(suggesting that district court erred in failing to inspect in
camera or order production of certain agent interview reports but
finding, after examining government agent’s testimony and interview
reports, that any error was harmless).
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that the Government failed to provide the district court with all
of the debriefing notes at issue.” He points to the government’s
admission that “there are materials relating to the non-testifying
codefendants that were not produced,” and argues that the
government should be required to produce all of the debriefing
materials in its possession.
Our finding is only incorrect if the debriefing notes for the
nontestifying codefendants are “at issue,” that is, if they fall
within the scope of our original remand in Thomas. But even if we
give Hodgkiss the benefit of the doubt on this question, the record
clearly indicates that Hodgkiss did not specifically seek the
debriefing notes for the nontestifying codefendants until after
remand. Thus, we would still decline to send this issue to the
district court for an in camera review.
Brady holds that a prosecutor’s failure to disclose material
evidence favorable to the accused upon request violates due
process. While a prosecutor has the duty to produce Brady material
even if the defense fails to make a specific request, or any
request at all, United States v. Agurs, 427 U.S. 97, 107, 111-12,
96 S. Ct. 2392, 2399, 2401,
49 L. Ed. 2d 342 (1976), reliance on
the government’s assurances that it is not in possession of Brady
material may be sufficient when the defense makes a blanket request
for favorable material in a government’s file.
Gaston, 608 F.2d at
612. Hodgkiss made a general Brady request as part of one of his
pretrial motions. The district court properly dismissed Hodgkiss’
application as moot, given the government’s agreement to provide
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Brady material.
At trial, Hodgkiss’ only specific Brady request dealt with the
debriefing notes for Don Howell, a government witness. After an in
camera review of these notes, the district court determined that
they did not contain Brady material. Other than the request for
Howell’s debriefing notes, Hodgkiss did not assert that the
government had suppressed any Brady material, and there is no
indication that the debriefing notes for nontestifying codefendants
are material or, for that matter, exculpatory or useful in
impeaching government witnesses. Hodgkiss’ argument on appeal that
the debriefing notes for the nontestifying defendants may contain
Brady material is entirely speculative. Thus, the fact that the
government did not produce these particular notes does not warrant
remand. See United States v. Navarro, 737 F.2d 625, 631 (7th Cir.)
(“Mere speculation that a government file may contain Brady
material is not sufficient to require a remand for in camera
inspection, much less reversal for a new trial.”), cert. denied,
469 U.S. 1020,
105 S. Ct. 438,
83 L. Ed. 2d 364 (1984).
The Jencks Act provides that, before the government’s duty to
disclose attaches, a defendant must move for production of any
covered statements after the witness has testified. 18 U.S.C.
§ 3500(b); McKenzie, 768 F.2d at 609. Hodgkiss did not raise the
Jencks Act during the pretrial period except very implicitly in an
omnibus motion for discovery and inspection. This motion does not
request the government to provide statements of the government
agents. Even if it did, a defendant “cannot rely on a multipronged
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pretrial discovery motion to preserve [his Jencks Act] claims for
the appellate court in the event of an unsuccessful defense.”
McKenzie, 768 F.2d at 607. In any event, the district court
dismissed this motion as moot, in part because the government
offered to provide Hodgkiss with all Jencks Act material.
At trial, Hodgkiss raised the Jencks Act during his cross-
examination of Agent George Mading as to Mading’s debriefing of a
testifying codefendant, Aaron P. Clark. Hodgkiss tried to show
that Mading’s debriefing notes constituted a statement by Clark.
At this point, Hodgkiss, to avoid having to ask for debriefing
notes after each testifying witness, requested such notes “for all
of those witnesses who are going to be called.” In other words,
Hodgkiss did not seek debriefing notes for the nontestifying
codefendants. A defendant who fails to alert the trial judge that
he believes the government has failed to produce a statement
covered by the Jencks Act waives his rights to such production.
Id. Hence, there is no need for an in camera review of the
debriefing notes for nontestifying witnesses to determine if they
contain Jencks Act material.
III
Hodgkiss asserts that we erred by not requiring the district
court to provide detailed findings on the Brady/Jencks Act issues.
The district court must determine in the first instance whether a
document is Jencks Act material. Campbell v. United States, 373
U.S. 487, 493,
83 S. Ct. 1356, 1360,
10 L. Ed. 2d 501 (1963).
Here, the district court exercised that duty. To determine if the
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court clearly erred, we have conducted our own review of the
debriefing notes. Given our review, we do not believe a remand to
the district court for more detailed findings is necessary.
IV
For the foregoing reasons, we GRANT Hodgkiss’ petition for
rehearing in part and DENY it in part. Nevertheless, we AFFIRM the
judgments of the district court in No. 91-8610 and No. 94-50789,
and AFFIRM Hodgkiss’ conviction and sentence.
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