Appeal from a judgment of the United States District Court for the Southern District of New York, Charles M. Metzner, Judge, convicting the appellant following a jury trial of conspiracy to possess and distribute heroin, in violation of 21 U.S.C. § 846, and of distribution and possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a) (1).
Lumbard, Oakes and Winter, Circuit Judges.
The record on this appeal by Rory Tyree McElroy from his convictions under 21 U.S.C. § 846 (1976) for conspiracy to possess and distribute heroin and under 21 U.S.C. § 841(a) (1) (1976) for distribution and possession of heroin with intent to distribute convinces us that by failing timely to advise defense counsel of McElroy's responses to the Miranda warnings the prosecutor prejudiced McElroy's defense and deprived him of a fair trial. We reverse the judgment and remand for further proceedings.
McElroy was convicted in a jury trial held before Judge Metzner of the Southern District of New York between January 5th and 7th, 1982. Only three witnesses testified at McElroy's trial: undercover Agent Wilbur Ladson of the Drug Enforcement Administration (DEA), Ruby Mitchell (McElroy's confederate who pleaded guilty before trial), and DEA Agent Alvah Henley, who helped arrest McElroy on October 1, 1981 and heard McElroy's post-arrest statement. All testified for the government.
Agent Ladson testified that an informant introduced him to Ruby Mitchell on July 30, 1981 at Mitchell's apartment in Brooklyn. Ladson asked Mitchell if she could supply him with an ounce of heroin. Mitchell agreed to make inquiries and told Ladson to contact her later. Six days later, on August 5th, Mitchell met Ladson outside "The Hole," a bar at 33rd Street and Eighth Avenue. Mitchell entered Ladson's car where Ladson exhibited $7,000 cash purchase money. She then went into a nearby building and returned with an ounce of heroin. Ladson paid Mitchell the $7,000 for the heroin plus a $500 tip.
In late September, Ladson again contacted Mitchell and asked to purchase three ounces of heroin. On October 1st Ladson met Mitchell at "The Hole" and drove her to a bar at 164th Street and Amsterdam Avenue. During the trip Ladson showed Mitchell $24,000 in purchase money. When Ladson and Mitchell arrived at the bar Mitchell entered while Ladson waited in his car. After some delay, and several trips between Ladson's car and the bar, Mitchell brought McElroy out of the bar and into the car. McElroy took a rear seat in the car and Mitchell took the front passenger seat. Mitchell then gave Ladson a brown paper bag containing three ounces of heroin. McElroy simultaneously removed an empty paper bag from his jacket and opened it in order to collect the purchase money. Ladson, however, signaled Agent Henley and other agents who moved in and arrested Mitchell and McElroy.
Ruby Mitchell's testimony confirmed Ladson's account and added several details implicating McElroy. She said that McElroy had been hidden in her apartment when Ladson visited her on July 30th, and that she had paid him $300 to serve as her lookout during the August 5th delivery. Mitchell testified that a man named "Sweat" had supplied the ounce of heroin that she transferred on August 5th. When Ladson contacted Mitchell in late September to purchase three ounces, "Sweat" told Mitchell that he would not supply her with such a large amount of heroin. He did, however, put Mitchell in touch with an unidentified person who agreed to supply the drug. Acting at that person's direction, Mitchell, on October 1st, told Ladson to drive to the bar at 164th Street. Mitchell met McElroy inside the bar and McElroy gave her a brown bag containing the heroin. McElroy told her that after the delivery they were to take the money to a certain address. She and McElroy then entered Ladson's car.
Following Mitchell's direct testimony, the prosecutor told defense counsel that there were no written reports of post-arrest statements by Mitchell. On cross-examination, however, Mitchell claimed that she gave DEA agents a post-arrest statement that was consistent with her testimony. Therefore, after Mitchell left the stand, counsel asked the prosecutor to again check whether he had a written record of Mitchell's post-arrest statement, and if not, to stipulate that Mitchell did not make the post-arrest statement as she claimed. The prosecutor responded to this request by again denying the existence of any written reports. However, upon prodding by Judge Metzner the prosecutor agreed to check into the matter. He thereafter revealed to defense counsel Paragraph Five of a report prepared by DEA Agent Vincent Velotta. Paragraph Five summarized a post-arrest statement that Mitchell had made to Velotta. In showing this paragraph to counsel, the prosecutor folded the report so as to hide a paragraph which summarized a post-arrest statement made by McElroy. The prosecutor told Judge Metzner that his failure earlier to reveal Velotta's report was "an oversight . . . for which I have full responsibility." Because Paragraph Five was consistent with Mitchell's testimony, and revealed nothing new about the October 1st transaction, counsel chose not to re-open his cross-examination of Mitchell.
The next witness was Agent Henley. Henley testified that after arresting McElroy the agents placed him in Henley's car and advised him of his rights. Henley then drove McElroy to the DEA office in Manhattan.
Upon arriving at the DEA office, Agent Henley filled out a personal history form with information provided by McElroy. While awaiting the use of the fingerprinting and photographing facilities, Agent Henley told McElroy that he would soon be taken to the Metropolitan Correctional Center (MCC), and that the next morning, a magistrate would set bail in his case. He then remarked that McElroy was not the prime target of the investigation, that DEA was seeking to prosecute more significant offenders than he, and that when McElroy spoke with his attorney, he should convey to him that DEA would welcome his cooperation.
At that point McElroy stated that he wished to explain what had happened. Agent Henley then re-advised McElroy of his rights; McElroy, however, decided to speak. He told Agent Henley that he had been asked by Mitchell earlier in the day to meet her at the bar on Amsterdam Avenue, and that he had agreed to do so out of personal concern for Mitchell's safety. McElroy at first stated that he had only a vague notion that Mitchell was involved in illicit activities, but soon acknowledged that he knew she was transacting a narcotics sale although he was not the source of those narcotics. No written statement was taken nor did Henley make contemporaneous notes of McElroy's admission. The exchange took approximately fifteen minutes, after which McElroy was processed and transported to the MCC.
Before trial, McElroy's counsel had requested discovery of McElroy's statements under Fed. R. Crim. P. 16(a). In response to that request, the prosecutor on December 1 and 23, 1981, had sent counsel letters summarizing McElroy's post-arrest admissions. However, the prosecutor had told counsel in those letters and orally that McElroy's statements had been "volunteered" and had not been recorded in any written report. Therefore, on cross-examination, defense counsel inquired into Henley's failure to make a written report of the admissions and his lack of knowledge as to whether any other agent had made such a report. Counsel by his questions sought to imply that the government's failure to record a piece of evidence as important as the defendant's own admissions might mean that the admissions were never made. Counsel asked the government to stipulate that none of the DEA agents' reports mentioned the alleged admissions. The prosecutor then approached the bench and showed Judge Metzner Paragraph Six of Agent Velotta's report, which had been made out October 5, 1981, four days after McElroy's arrest. Paragraph Six states:
It should be noted that at the time McELROY was advised of his Constitutional Rights, he advised Special Agents Henley and Roberto that he did not want to talk to the agents. However, at the New York District Office, McELROY advised that he would talk to the agents. Special Agent Henley then reminded McELROY of his Constitutional Rights. McELROY advised that he understood his rights and was still willing to talk to the agents. McELROY denied that he was the source of supply for the heroin. He admitted that he knew that MITCHELL was delivering heroin to Special Agent Ladson, but claimed that he was only with her for her "protection."
Velotta prepared this report after Henley told him about his conversation with McElroy. Velotta himself did not hear most of McElroy's post-arrest statement and Henley apparently did not know of Velotta's report. The prosecutor suggested that under the circumstances, the government could not stipulate as requested. Complaining that he had been "sandbagged" by the prosecutor's failure timely to disclose the report of McElroy's statements, ...