878 F.2d 1439
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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,
Jerome E. McCUIN, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 29, 1989.
Decided July 7, 1989.
Before FARRIS, NOONAN, LEAVY, Circuit Judges.
Jerome McCuin appeals the district court's denial of his motion for a new trial. McCuin sought to suppress statements he made during an interview with an FBI agent on the grounds that the United States failed to comply with Fed.R.Crim.P. 16(a)(1) in not providing him with a copy of the memorandum of interview containing the statements. We affirm the district court's denial of the new trial motion.
McCuin was charged and convicted of several bank fraud-related crimes: conspiring to obtain funds from federally insured financial institutions, 18 U.S.C. Sec. 371; wire fraud, 18 U.S.C. Sec. 1343; interstate transportation of property obtained by fraud, 18 U.S.C. Sec. 2314; making false statements to a federally insured financial institution for the purpose of influencing action on a loan, 18 U.S.C. Sec. 1014; and false representation of a social security number on tax returns submitted to a federally insured financial institution, 42 U.S.C. Sec. 408(g)(2). The crimes arose in connection with a 1984 loan that McCuin, a medical doctor, obtained for the purchase of the Dauphine Condominiums in the French Quarter of New Orleans.
McCuin was interviewed by FBI Agent Harman in 1985, and described the events leading to the purchase of the condominiums, including financing arrangements with Home Savings. McCuin's attorney at the time was present during the interviews. At trial, Agent Harman testified about statements made by McCuin during the interview. Prior to Agent Harman's testimony, McCuin's trial attorney advised the court that he had not received a copy of the memorandum of interview concerning the McCuin's statements and sought to supress the statements on the grounds that the United States had failed to comply with Rule 16(a)(1). The court ruled that the statements were admissible. The court found that the failure to produce the statement was inadvertent and that the defendant suffered no adverse effect from the failure of the government to provide the statement to McCuin at an earlier date.
Fed.R.Crim.P. 16 requires the government to produce on request of the defendant recorded statements made by the defendant that are in the custody of the government. United States v. Gee, 695 F.2d 1165, 1167 (9th Cir.1983). Failure to produce these materials on request may require reversal if McCuin can show prejudice to his defense from their use at trial. See id.
McCuin claimed that he suffered prejudice because his defense was built around the fact that there was no evidence that the existence of a financing institution was ever disclosed to him. McCuin's primary defense was that because he was a cocaine addict, he was taken advantage of by a corrupt accountant, seller, and lender. McCuin claimed to have been unaware of the involvement of a bank in the transaction.
McCuin's statements to Agent Harman showed that he was aware of the involvement of a financing institution. Although the statements made to Agent Harman undermined McCuin's defense, significant other unchallenged evidence also established McCuin's awareness of the involvement of Home Savings. The president of Home Savings testified that he had discussed qualification for the loan with McCuin. The bank president also testified that he had sent McCuin a loan commitment letter and had received a signed letter back from McCuin.
Additionally, McCuin was aware that he had been interviewed by Agent Harman, had counsel present during the interview, and was given notice before trial that the government intended to introduce statements by him during its case. Finally, McCuin was provided with several days to review the memorandum before cross-examination of Agent Harman.
In light of the these circumstances, McCuin suffered no prejudice as a result of government's failure to produce the memorandum of interview with Agent Harman. The district court did not err in admitting the statements McCuin made to Agent Harman or in denying the motion for a new trial.
This disposition is not appropriate for publication and may not be cited to or by the courts of the circuit except as provided by 9th Cir.R.36-3