676 F.

2d 13
10 Fed. R. Evid. Serv. 603

UNITED STATES of America, Appellee,

v.
Victor DEL TORO SOTO, Defendant-Appellant.
UNITED STATES of America, Appellee,
v.
Francisco Rivera GONZALEZ, Defendant-Appellant.
Nos. 81-1184, 81-1169.

United States Court of Appeals,

First Circuit.
Argued Feb. 1, 1982.
Decided April 23, 1982.

Carlos Lopez De Azua, Hato Rey, P. R., by appointment of the Court, for
defendant-appellant Francisco Rivera-Gonzalez.
Marshall D. Stein, Boston, Mass., by appointment of the Court, with
whom Hale, Sanderson, Byrnes & Morton, Boston, Mass., was on brief,
for defendant-appellant Victor del Toro Soto.
H. Manuel Hernandez, Asst. U. S. Atty., Hato Rey, P. R., with whom
Raymond L. Acosta, U. S. Atty., Hato Rey, P. R., was on brief, for
appellee.
Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.
BOWNES, Circuit Judge.

These are appeals by Victor del Toro Soto and Francisco Rivera Gonzalez from
jury convictions of aiding and abetting each other in tearing, cutting, and
injuring two United States mail pouches and stealing mail matter and money
from a postal employee by the use of force and violence in violation of 18
U.S.C. 2, 1706 and 2114.

We discuss the issues seriatim in descending order of importance starting with

those raised by appellant del Toro Soto.

The Jencks Act Issue

3

Postal Inspector Jose Daniel Cardona was the government agent in charge of
the case. He testified in detail about his investigation, including interviews he
had conducted with two indicted codefendants, Victor Garcia Ramos and Jose
Maldonado Vega, who were government witnesses at the trial. During crossexamination, Cardona testified that he made a "presentation letter" to the
United States Attorney's office of the entire investigation, including what he
had done personally. The "presentation letter" was based on reports and notes
he had made during the investigation. Defense counsel requested an
opportunity to examine the investigation report. The court ruled without any
examination of the report and inquiry that it "is not 3500 material." A short time
later defense counsel requested that the court reconsider its ruling. Although his
position was not explained very clearly, defense counsel urged that the report of
the agent-witness came within the definition of producible material under 18
U.S.C. 3500. The motion for reconsideration was denied, again without any
inquiry into or examination of the material sought.

We begin our analysis with the pertinent words of the statute:

After a witness called by the United States has testified on direct examination,
the court shall, on motion of the defendant, order the United States to produce
any statement (as hereinafter defined) of the witness in the possession of the
United States which relates to the subject matter as to which the witness has
testified. If the entire contents of any such statement relate to the subject matter
of the testimony of the witness, the court shall order it to be delivered directly
to the defendant for his examination and use.

18 U.S.C. 3500(b).

The term "statement", as used in subsections (b), (c), and (d) of this section in
relation to any witness called by the United States, means--

(1) a written statement made by said witness and signed or otherwise adopted
or approved by him(.)

28 U.S.C. 3500(e)(1).

10

There can be little doubt that Cardona's investigation report is a statement

within the plain meaning of the words of the statute. And the case law
reinforces that conclusion. Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645,
5 L.Ed.2d 574 (1961), held that a memorandum by a government agent-witness
prepared after an interview with a witness without the benefit of interview
notes, came within the statute and should have been produced. In Goldberg v.
United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976), the Court
held thata writing prepared by a Government lawyer relating to the subject
matter of the testimony of a Government witness that has been "signed or
otherwise adopted or approved" by the Government witness is producible under
the Jencks Act, and is not rendered nonproducible because a Government
lawyer interviews the witness and writes the "statement."

11

Id. at 98, 96 S.Ct. at 1342.

12

In United States v. Cleveland, 477 F.2d 310 (7th Cir. 1973), a case on all fours
with this, Judge (now Associate Justice) Stevens ruled that the term "statement"
in subsection (e)(1) of the Act "includes the report of a government agent who
testified as a prosecution witness." Id. at 316. With one exception, the cases
relied on by the government have to do with the producibility of reports, see
infra, not whether they constitute a statement under the statute. United States v.
Nickell, 552 F.2d 684, 687-88 (6th Cir. 1977), cert. denied, 436 U.S. 904, 98
S.Ct. 2233, 56 L.Ed.2d 402, reh'g denied, 438 U.S. 908, 98 S.Ct. 3128, 57
L.Ed.2d 1150 (1978), held, with one judge dissenting, that "all of the reports"
of an FBI agent-witness were not Jencks Act statements and need not be
examined by the district court in camera because it was undisputed that the
witness statements taken by the agent had been made available to defense
counsel. In United States v. Dark, 597 F.2d 1097 (6th Cir.), cert. denied, 444
U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 183 (1979), the court held, citing to and
quoting from Nickell, that the contents of the case file of an IRS special agent
who testified were not Jencks Act statements and did not require an in camera
inspection by the district court because there was no basis for belief that a
Jencks Act statement existed other than those already furnished defense
counsel. Id. at 1099. We do not think these cases are applicable. As we read the
Sixth Circuit cases, they involved an attempt by defense counsel to examine
material that they hoped might contain Jencks Act statements of any
government witness. That is not our situation. Here, the witness had testified at
length about the investigation he conducted of the robbery. He had already
submitted a report covering in part, at least, the subject matter of his testimony.
If there was a conflict between the report and his testimony, it was
impeachment ammunition for the defense. We think Justice Stevens'
concurrence in Goldberg is instructive. He points out that "(t)he statutory

definition of the term 'statement' was intended by Congress to describe material

that could be fairly used to impeach the testimony of a witness." 425 U.S. at
112, 96 S.Ct. at 1349. We hold that the district court erred in ruling that the
investigation report was not section 3500 material.
13

But determining that the report was a statement under the Act is only the first
step. As was pointed out in United States v. Cleveland, 477 F.2d at 315-16,
there are two problems: first, is the report a statement within the meaning of the
statute, and second, is it producible. In determining whether the report is
producible, "the key question is whether the information contained in the
statements 'relate(s) generally to the events and activities testified to' by the
witness." United States v. Ferreira, 625 F.2d 1030, 1034 (1st Cir. 1980),
quoting United States v. O'Brien, 444 F.2d 1082, 1086 (7th Cir. 1971). This
determination must be made in the first instance by the district court. Goldberg
v. United States, 425 U.S. at 108-09, 96 S.Ct. at 1347. This will usually require
a careful examination of the material sought. The trial judge has the affirmative
duty

14 administer the statute in such way as can best secure relevant and available
to
evidence necessary to decide between the directly opposed interests protected by the
statute-the interest of the Government in safeguarding government papers from
disclosure, and the interest of the accused in having the Government produce
"statements" which the statute requires to be produced.
15

Campbell v. United States, 365 U.S. 85, 95, 81 S.Ct. 421, 427, 5 L.Ed.2d 428
(1961). In United States v. Strahl, 590 F.2d 10, 14-15 (1st Cir. 1978), cert.
denied, 440 U.S. 918, 99 S.Ct. 1237, 59 L.Ed.2d 468 (1979), we emphasized
the vital role of the district judge in conducting a searching Jencks Act inquiry.
Here, there was no inquiry at all. In Palermo v. United States, 360 U.S. 343,
354, 79 S.Ct. 1217, 1225, 3 L.Ed.2d 1287 (1959), the Court noted: "(W)hen it
is doubtful whether the production of a particular statement is compelled by the
statute, we approve the practice of having the Government submit the
statement to the trial judge for an in camera determination. Indeed, any other
procedure would be destructive of the statutory purpose."

16

Under the circumstances here, we have no alternative except to remand to the

district court for a determination of whether Cardona's report related to the
events and activities testified to by him on the witness stand. Goldberg v.
United States, 425 U.S. at 108-09, 96 S.Ct. at 1347; United States v. Peters, 625
F.2d 366, 372 (10th Cir. 1980); United States v. Conroy, 589 F.2d 1258, 1273
(5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979);
United States v. Cleveland, 477 F.2d at 316.1

17

Although defendant Rivera Gonzalez did not expressly join in the request for
production of the report, it is obvious that the district court's ruling affected
both cases and this issue must be considered common to both. The procedure to
be followed on remand is well settled. The district court must examine the
report in camera and, after a complete inquiry, supplement the record with
express findings. If it is then determined to reaffirm the denial of the motion to
produce, new final judgments of conviction should be entered in each case. If
appellate review is sought, the report should be placed in a sealed envelope for
transmission to this court. If, on the other hand, the report is determined to be
producible, there must be a new trial in both cases unless the error is deemed
harmless. Goldberg v. United States, 425 U.S. at 111-12 & n.9, 96 S.Ct. at 1348
& n.9 (emphasizing that "the harmless-error doctrine must be strictly applied in
Jencks Act cases"); United States v. Peters, 625 F.2d at 371; United States v.
Cleveland, 477 F.2d at 316 & n.9.

The Jury Instructions on Reasonable Doubt

18

There were two misstatements in an otherwise comprehensive and correct

charge:

19

Proof beyond a reasonable doubt is such as you would be willing to rely and act
upon in the most important of your own affairs;

20

A reasonable doubt exists in any case when, after careful and impartial
consideration of all the evidence in the case, the jurors do not feel convinced to
a moral certainty, that a defendant is guilty of the charge.

21

We, along with other circuit courts, have strongly suggested that the district
court should follow the teaching of Holland v. United States, 348 U.S. 121,
140, 75 S.Ct. 127, 138, 99 L.Ed. 150 (1954), and use the phrase "hesitate to
act" rather than "willing to rely and act upon." United States v. Drake, 673 F.2d
15 at 20 (1st Cir. 1982). We have been even more emphatic in our
condemnation of the "moral certainty" language. Drake, at 21.

22

We can only hope that in time our message will be received and followed.
Where, however, as here there was no objection to the charge and, read as a
whole, it instructed the jury properly on the presumption of innocence and
stated that "a reasonable doubt is a fair doubt, based upon reason and common
sense, and arising from the state of the evidence," we will not reverse.

23

At the conclusion of the instruction on reasonable doubt, the court said: "So, if

the jury views the evidence in the case as reasonably permitting either of two
conclusions, one of innocence, the other of guilt, the jury should of course
adopt the conclusion of innocence." Defendant argues that this "carries the
clear inference that if the evidence tilts ever so slightly in favor of guilt, a jury
can convict." Brief at 14. There is no basis whatsoever for this argument. It
distorts the language so radically as to rupture it.
The Ruling on the Admissibility of del Toro's 1971 Convictions
24
25

In order to decide whether to have his client testify, del Toro Soto's counsel
asked the court to rule whether 1965 and 1971 convictions would be admitted
against him.2 After a bench conference during which the convictions were
discussed, the court ruled that it would not admit the 1965 conviction, but that
defendant's convictions in 1971 for possession of controlled substances and
grand larceny could be introduced if he testified on his own behalf. The court
gave as its reason for this ruling "that this defendant is no newcomer to the
problems with the law.... I think it goes into the state of mind of why he went to
get the two individuals and introduce them to the one that planned the robbery
and later on join the robbery as an aider and abettor ...." Defendant argued
below as he does here that the admission of the convictions did not have any
probative value and would be extremely prejudicial. Federal Rule of Evidence
609(a)(1)3 requires that the trial court determine "that the probative value of
admitting this evidence outweighs its prejudicial effect to the defendant." It is
true, as defendant argues, that under the facts of this case intent and state of
mind were not at issue. But we think that the court was thinking in terms of
credibility when it ruled that the conversations would be admitted if the
defendant testified. Prior to the statements already quoted, the court said, "I will
not order the Government not to use them (1971 convictions) to impeach." The
grand larceny conviction could certainly have been introduced under Federal
Rule of Evidence 609(a)(2) on the general question of the defendant's
credibility. See United States v. Kiendra, 663 F.2d 349, 353-55 (1st Cir. 1981);
United States v. Brown, 603 F.2d 1022, 1027-28 (1st Cir. 1979). Another factor
to be considered is that the court was ruling without the benefit of defendant's
testimony or even an offer of proof as to the general contents of his testimony.
Nevertheless, whether or not to make an advance ruling is entirely within the
discretion of the trial court. United States v. Hickey, 596 F.2d 1082, 1087 (1st
Cir.), cert. denied, 444 U.S. 853, 100 S.Ct. 107, 62 L.Ed.2d 70 (1979). In any
event, if there was error, it was harmless.

26

We now turn to the issues raised by Rivera Gonzalez.

The Curtailment of Cross-Examination of a Government Witness

27

28

One of the principal government witnesses was an indicted codefendant, Victor

Garcia Ramos. On direct examination he testified that the terms of the signed
plea bargain agreement with the government were that in return for his
cooperation, three of the four counts against him would be dropped and he
could plead guilty to one count carrying a penalty of not more than five years.
The written plea bargain agreement was marked as an exhibit. Counts I, II, and
IV were dismissed and the defendant pleaded guilty to Count III. On crossexamination, defense counsel attempted to show that Count II, which had been
dismissed, carried a maximum penalty of twenty-five years. After objection by
the prosecutor, the court ruled at a bench conference that the jury was not to be
informed that the maximum statutory penalty on Count II was twenty-five
years. In making the ruling, the court stated:

29

THE COURT: I am going to allow you only to ask him if he knows that the
punishment is. If he knows what the punishment is for count 2. If he knows if
it is higher than the punishment for the count which he pleaded guilty. That is
all I am going to allow you to ask him, because it is not the jury's concern what
the punishment is in the statute that is being charged.

30

MR. LOPEZ: Your Honor, we believe it is the jury's concern.

31

THE COURT: I am going to allow you to ask the witness if he knows what the
punishment on count 2 is, so that you can later on argue to the jury that he
bargained for a count in the indictment that carries a maximum of five years
when there were other counts that carried a higher penalty.

32

MR. LOPEZ: But we are never going to tell the jury how much difference it is?

33

THE COURT: I am not going to allow you to tell the jury.

34

After the ruling, the following cross-examination took place:

BY MR. LOPEZ:
35

Q Do you know that count 2 of the indictment that charged you with robbery,
carries a much higher penalty than the case that you pled guilty to?

36

A No, sir.

37

Q You discussed this plea bargaining with your lawyer, didn't you?

38

A Yes, sir.

39

Q And you did not know during the course of your discussion with your lawyer
what penalties were imposed in each charge?

40

A No, sir.

41

A little later, the witness stated, "As far as I understand it, if I were found guilty
in the four counts, I would have to be admitted to imprisonment for 25 years."

42

As the record clearly shows, there was no curtailment of cross-examination. It

was the witness' understanding of the plea bargain, not the statutory penalty on
the dismissed counts, that bore on his credibility.

43

In order to understand the other issues raised by Francisco Rivera Gonzalez

some factual recitation is necessary. The car that was used in the robbery, a
white Malibu, was registered to Fernando Rivera Gonzalez, brother of
Francisco. Francisco drove it during the robbery. After the postal inspectors
located the car, they ran a license plate check on it and found that it was
registered to Fernando Rivera Gonzalez. A picture of Fernando was obtained
and inserted in a spread of three or four that was shown to Maldonado, who had
already been arrested for participation in the robbery. Maldonado mistakenly
identified the picture as that of the driver of the car. Photos of both Francisco
and Fernando are part of the record and there is no doubt that the brothers bear
a strong facial resemblance to each other. On the basis of Maldonado's
identification and the car registration, Fernando was arrested. Del Toro was
arrested a short time later and when he saw Fernando, he told the postal
inspectors they had the wrong person. One of the inspectors then obtained a
photograph of Francisco from the mother of the brothers. This was shown to
Maldonado who identified it as a picture of the man who drove the getaway
car. The case against Fernando was dismissed and he was released from
custody. Francisco was arrested. After being advised of his rights and signing a
waiver, he confessed to his role in the robbery but refused to incriminate
anyone else or sign a written statement.

44

From this case of mistaken identity, appellant has fashioned three issues, none
of which has any merit. The first claim is that he "should have been provided
prior to trial with all of the evidence regarding the identification procedure as it
was clearly exculpatory." The short answer is that it was all produced prior to
trial at the suppression hearing and it was not exculpatory. The postal
inspectors made an understandable mistake in arresting appellant's brother, but

all witnesses were sure that appellant drove the getaway car.
45

The second issue asserted is that defendant's confession should have been
suppressed because there was no probable cause for his arrest. Here the
affidavit was based on recent personal observations of an admitted participant
in the very crime at issue. Under these circumstances, the magistrate could
justifiably conclude that the informant was reliable and his information
credible, and that therefore there was probable cause for arrest. See, e.g.,
United States v. Dunloy, 584 F.2d 6, 10 (2d Cir. 1978); United States v.
Principe, 499 F.2d 1135, 1137 (1st Cir. 1974).

46

Finally, the appellant argues that the failure of the government to furnish him a
transcript of the hearing on the motion to suppress as ordered by the court
deprived him of the right to proper cross-examination. While we do not
understand why the prosecutor did not do as the court directed, that is not the
issue. Our reading of the cross-examination by defense counsel convinces us
that it was as thorough and effective as it could be, given the facts of the case.
It was certainly lengthy enough. Defense counsel were present at the
suppression hearing which was held on December 22, 1980; the trial started
two weeks later-January 7, 1981. The cross-examination makes evident that the
information obtained at the hearing was used at the trial.

47

Reversed in part, affirmed in part, remanded for further proceedings consistent

herewith.

In United States v. Strahl, 590 F.2d 10 (1st Cir. 1978), cert. denied, 440 U.S.
918, 99 S.Ct. 1237, 59 L.Ed.2d 468 (1979), we did not remand. The issue there,
however, was whether the witness had signed or approved the interview notes
made by the government attorney. We held that, although the judicial inquiry
was only minimally adequate, the cross-examination of the witness established
that he had not adopted or approved the notes

The government does not contest the right of del Toro Soto to raise this issue
even though he did not testify. See United States v. Hickey, 596 F.2d 1082,
1086-87 (1st Cir.), cert. denied, 444 U.S. 853, 100 S.Ct. 107, 62 L.Ed.2d 70
(1979)

Fed.R.Evid. 609(a) provides:

(a) General Rule. For the purpose of attacking the credibility of a witness,
evidence that he has been convicted of a crime shall be admitted if elicited from

him or established by public record during cross-examination but only if the

crime (1) was punishable by death or imprisonment in excess of one year under
the law under which he was convicted, and the court determines that the
probative value of admitting this evidence outweighs its prejudicial effect to the
defendant, or (2) involved dishonesty or false statement, regardless of the
punishment.