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876 F2d 897 United States v. Allred

876 F.2d 897

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Dale Edwin ALLRED, Defendant-Appellant.

No. 88-3072.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 31, 1989.
Decided June 7, 1989.*

Before FERGUSON, KOZINSKI, AND HALL, Circuit Judges.

1

MEMORANDUM**

2

Dale Edwin Allred was convicted on one count of conspiring to file false income tax returns and on five counts of filing false tax returns. Allred contends that the district court erred in denying his pretrial motion to suppress statements he made to IRS Investigator Rose because Rose destroyed the original notes of her interview with Allred after completing the final memorandum on which her testimony at trial was based.

3

We review for an abuse of discretion the district court's decision not to preclude witness testimony for failure to produce a prior statement of the witness. United State v. Conners, 825 F.2d 1384, 1388 (9th Cir.1987). We affirm.

4

* A Federal Grand Jury returned a six-count indictment charging Dale Edwin Allred with conspiring to defraud the Internal Revenue Service and for filing five false and fraudulent 1986 U.S. individual income tax returns in violation of 18 U.S.C. Secs. 286 and 287. IRS criminal investigator Rose interviewed Allred at the Oregon State Penitentiary, during which appellant provided information pertaining to his knowledge of the crimes charged. Rose took handwritten notes during the interview and later dictated the notes into a memorandum. A final draft of the memorandum was prepared and provided to appellant. The first draft, which included additions and corrections, was destroyed.

5

Prior to trial, Allred filed a Fed.R.Crim.P. 41(f) motion to suppress "[a]ny and all statements made by [him] in response to questioning and other interrogation by law enforcement officers." The motion was denied by the district court. At trial, Agent Rose testified against him on the basis of her interview and a jury convicted Allred on all six counts. Appellant timely appeals.

II

6

Allred contends that the district court erred in denying his pretrial motion to suppress statements he made to Rose. He claims that, in violation of the Jencks Act, Rose destroyed her original notes after completing the final memorandum of her interview.

7

The Jencks Act, in relevant part, provides:

8

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 ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.

9

18 U.S.C. Sec. 3500(b) (1982).

10

The Jencks Act requires the defendant to request with precision the production of material he seeks to use for impeachment. See Ogden v. United States, 303 F.2d 724, 733 (9th Cir.1962) In Ogden, we stated:

11

[T]he burden rests upon the defendant to invoke the statute at the appropriate time. The Act provides that the Court shall order the production of statements to which the defendant is entitled "on motion of the defendant." "No ritual of words" is required, but the defendant must plainly tender to the Court the question of the producibility of the document at a time when it is possible for the Court to order it produced, or to make an appropriate inquiry. If he fails to do so he may not assert, on appeal, that failure to order production or to undertake further inquiry was error.... The responsibility for fairly directing the attention of the Court to the precise demand submitted for the Court's determination is appropriately placed upon the Defendant, who seeks the statute's benefits.

12

Id. (footnotes omitted) (emphasis added). The "appropriate time" to request Jencks Act material is during trial after the witness has testified on direct examination. United States v. Bernard, 623 F.2d 551, 556 (9th Cir.1979). A pretrial suppression motion is insufficient. Id.

13

Allred did not meet his responsibility under the Jencks Act. First, Allred failed to make a "precise demand" for the original draft of Rose's memorandum. See Ogden, 303 F.2d at 733. Allred's pretrial suppression motion, which states in the most general way that he sought to suppress "any and all statements made by defendant in response to questioning ... by law enforcement officers,"1 certainly did not "direct[] the attention of the Court [below] to the precise demand submitted for the Court's determination." See id. Second, Allred failed to comply with the Act's specific requirement that a request for Jencks material be made after the witness "has testified on direct examination in the trial of the case." See Bernard, 623 F.2d at 556 (" 'trial of the case' does not include pretrial suppression hearings"). Indeed, Allred never indicated in any way during the trial that he sought to have the government produce the original draft of Rose's memorandum.2

14

Accordingly, the district court's decision is AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by the Ninth Circuit Rule 36-3

1

We note that Allred did not argue as the basis for his suppression motion that he sought to obtain Rose's original draft but was denied. Allred's motion stated only that it sought broad suppression; no arguments were advanced in support of the motion

2

In his brief, Allred argues that United States v. Harris, 543 F.2d 1247 (9th Cir.1976), compels reversal of his conviction since Rose destroyed her original draft of the memorandum of the Allred interview, which contained editorial comments from the other IRS agents in attendance at the interview. Allred's reliance on Harris is misplaced. In Harris, this court placed a duty on the Government to retain the original notes from an interview with a defendant so that those notes would be available to the defendant for purposes of cross-examination. Id. at 1253. The preservation rule in Harris, however, does not extend to drafts of an interview memorandum prepared from the original notes nor to written editorial comments made in the preparation of a final interview memorandum. Significantly, the record in this case indicates that Rose had retained her original notes and that they were available for Allred's review

Even assuming, however, that the annotated draft memorandum is regarded as falling within the purview of the Harris preservation rule, the district court's error in failing to suppress the IRS agent's testimony would be harmless error. See Harris, 543 F.2d at 12.

Appellant does not contend that the investigator misstated at trial what had been said at the interview or that the version of the final memorandum was incomplete or inaccurate. Further, Allred has not shown that any of his substantive rights have been affected. Therefore, the error was harmless.