Opinion
Criminal Action No. 08-665 (PGS).
April 30, 2009
ORDER
This matter comes before the Court on Defendant's appeal from the judgment of conviction entered after trial by jury before the Honorable Patty Shwartz, U.S.M.J. The Court having heard oral argument, and reviewed the briefs and supporting documents submitted by the parties,
IT IS on this 30th day of April, 2009
ORDERED that Defendant/Appellant's convictions and sentence are hereby AFFIRMED.
OPINION
This matter comes before the Court on Defendant/Appellant Frederick Rucci's appeal from the judgment of conviction and sentence entered by the Honorable Patty Shwartz, U.S.M.J. on September 8, 2008. On appeal, Rucci raises three issues: 1) whether the trial court committed reversible error by declining to review in camera the notes of I.R.S. Special Agent Brian Dolan that were taken during an interview with Rucci in the course of Dolan's investigation, and which Dolan used to refresh his recollection of events prior to testifying; 2) whether Rucci was deprived of a fair trial by the court's decision to allow the Government to expand its witness list as a result of comments made during defense counsel's opening statement, thus working a chilling effect on Rucci's defense; and 3) whether the trial court erred in denying Rucci's application for a 2-level reduction of his Sentencing Guideline Offense level based upon his acceptance of responsibility and payment of restitution. For the reasons that follow, Rucci's convictions and sentence will be affirmed.PROCEDURAL HISTORY
In November 2007, Rucci was charged in an Information with four counts of willful failure to file tax returns for the years 2000, 2001, 2002, and 2003. Rucci entered a plea of Not Guilty to the charges in the Information, and consented to having a magistrate judge, the Honorable Patty Shwartz, U.S.M.J., conduct the jury trial. Said trial commenced on April 22, 2008. After a three day jury trial, the jury delivered its verdict on April 25, 2008, convicting Rucci on all four counts of the Information. On September 8, 2008, Rucci was sentenced based upon a Sentencing Guideline Offense level of 14, with a downward variance, resulting in sentences of twelve months on Counts One, Two, and Three of the Information, to run concurrent, and one day on Count Four, to run consecutively with the other three counts. Rucci filed his Notice of Appeal on September 18, 2008.JURISDICTION
Pursuant to 18 U.S.C. § 3401(a) and Fed.R.Crim.P. 58(b)(3)(A), a defendant consent to trial of a misdemeanor case before a magistrate judge, as was done in the case sub judice. Once trial is concluded, appeals from a judgment of conviction must be directed toward a district judge pursuant to 18 U.S.C. § 3402 and Rule 58(g)(2)(B). Further, "[t]he defendant [in an appeal from a magistrate's judgement] is not entitled to a trial de novo by a district judge. The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed.R.Crim.P 58(g)(2)(D). Therefore, this court reviews Rucci's convictions and sentence based upon the verbatim record submitted.
STATEMENT OF FACTS
Rucci, a Certified Public Accountant ("CPA"), was the sole proprietor of his own accounting business. Although he filed tax returns timely for his clients, Rucci failed to file timely tax returns for his personal income tax returns from 1996 through 2003. Despite his applications for timely extensions of time to file his tax returns for each of those tax years, Rucci failed both to pay the estimated tax due by April 15 of each year from 1997 thought 2004, and to file the returns by October 15 of each of those years. In addition, sometime in 2003, a revenue agent from the IRS named Mary Nicolaro contacted Rucci regarding a deficiency in filing and paying his payroll taxes for his business.
The tax returns for 1996 through 1999 were all filed by August 15, 2003. Rucci was not charged with failure to file for those years.
Rucci was not charged with failure to file his payroll taxes.
In January 2005, Dolan contacted Rucci and conducted an interview with him regarding his failure to file his returns for 2000 through 2003. Rucci indicated that he had family problems that caused him not to file the returns, but that there was really no excuse for his lateness. Rucci thereafter filed his tax returns for 2000 through 2003. The total tax owed for the four years was $52,000. The total in penalties and interest amounted to $27,343.63. It is undisputed that Rucci paid the taxes, penalties, and interest owed prior to the filing of the Information against him by the Government.
The 2000 and 2001 tax returns were filed on February 15, 2005. The 2002 tax return was filed on March 4, 2005. The 2003 tax return was filed on March 25, 2005.
When the information was filed in November 2007, Rucci pled not guilty to the four counts of willful failure to file tax returns, 26 U.S.C. § 7203. Rucci did not challenge the allegation that he failed to timely file his returns; rather, he challenged his state of mind at the time the crimes were allegedly committed. Defense counsel stated in his opening and closing statements that Rucci's failure to file was not willful, but was instead due to Rucci's negligence.
At trial, during his opening statement, defense counsel indicated that Rucci filed his 1996 through 1999 delinquent tax returns late, but without prompting by the IRS. He stated:
Through the testimony you're also going to see that Fred did file income tax returns. The government didn't tell you that. In 2003, in 2003, there was no investigation, there was no inquiry, there was no questioning. There were no visits by representatives of any governmental agency, including the I.R.S. or the U.S. Attorney's Office. Yeah, in 2003, he filed two tax returns. The tax returns were for the years 1998 and 1999, because from the evidence what you're going to see is that Fred had this habit, this careless, lackadaisical scatter-brained attitude of always filing his income tax returns late. He wouldn't file them for a few years and then he would sit down and he would try to catch up. And every time he filed late and every time he caught up and every time, without any prompting from anybody, he sent his returns in, what did it cost him? What did it cost him? It always cost him penalties and interest.
Thereafter, during a break in Dolan's testimony, the Government moved to add Nicolaro to its witness list, citing defense counsel's opening statement as having opened the door for a rebuttal by the Government that Rucci had, in fact, been prompted to file his 1998 and 1999 income tax returns by Nicolaro's 2003 conversations with him regarding his failure to file his payroll taxes. Although defense counsel indicated to the trial court that he had crafted his opening based upon the witness lists exchanged prior to trial, he also admitted that he knew of Nicolaro, and was in fact aware of her contact with his client. The exchange went as follows:
THE COURT: I understand the Government had an issue that you wanted to raise?
[PROSECUTOR]: Yes, your Honor. In light of defense counsel's opening statement, we were originally, the Government, was only focusing on the tax years in question here, 2000 through 2003. But in light of defense counsel's opening statement with respect to the `98 and `99 returns, the Government would like to add one more witness to its list, to its case.
THE COURT: And who would that be?
[PROSECUTOR]: Mary Nicolaro with the Internal Revenue Service. And I'm trying to recall what her current position — do you need her title right now?
THE COURT: No. My only question is if there's any Jencks material, Giglio material with respect to this witness, that it be provided.
[PROSECUTOR]: Okay.
THE COURT: Jencks material isn't due until after the direct is concluded. And we all knew that these other tax years were at issue as per the Government's motion.
[DEFENSE COUNSEL]: That's what I'm concerned about; the Government's motion and their exhibit list. If you look at their exhibit list, it includes the information, so nothing I said in my opening should come as any surprise or suggestion to the Government. I've known of this witness, Judge, because Mr. Rucci had provided me with correspondence that he had written to her back in 2003 and 2004, which I provided to the Government. So the Government knew of her as I did. She's a government employee.
I fashioned my opening predicated upon, at minimum, the witness list. So for them all of a sudden to take something I say in my opening and make a request that an additional witness be added based upon information which they possessed in the past and proferred to the Court that they were going to use, I'm a little taken back.
Now, I can only assume that perhaps there was an interview with her or a report or what have you. And I know I'm not entitled to it according to the book until she gets done with her direct testimony. But that's what it says in the book, but that's not the way we normally do things.
And I'm just [a] little bit taken back that it's done now because of something I said in my opening when it's not a surprise. The Government has suggested to me and to the Court that they were going to proffer that very information, 1998 and 1999.
[PROSECUTOR]: May I be heard about what information it is that was in the opening?
THE COURT: I just wanted to make sure Mr. Altman was done.
[DEFENSE COUNSEL]: Yes.
THE COURT: Go ahead.
[PROSECUTOR]: The information is not about, specifically about the `98 or `99 returns. The information that defense counsel stated in his opening statement, that we did not realize he was going to do, was that Mr. Rucci filed the `98 and `99 returns unprompted. That was not something that we had anticipated that he was going to do, that is not something in the evidence. The evidence is strictly, as I did provide him, deals with the dates those returns were filed.
But Mr. Altman's statement that Mr. Rucci filed those unprompted is what the Government would like to address with the additional witness.
THE COURT: Okay.
[DEFENSE COUNSEL]: Judge, if that was their intention, I certainly would have expected that as part of the 404(b) because that would have been right on point, that he only filed them in 2005 when he was prompted. So certainly if he was prompted again in 2003, I mean, I couldn't think or create any more relevant 404(b) material. But there was never any suggestion of that or inference of that being part of the 404(b) reasoning that was submitted to the Court or to me.
. . . . When I received the 404(b) material, I spoke to Ms. Chen, and based upon what I was given I said I have no objection.
Now, if there was something more to it, I should have been placed on notice properly so I could perhaps have voiced an objection or thought of something else to do in terms of instructions to the jury. Because I said to Ms. Chen, I don't even want the 404(b) charge even given based upon what was provided to me.
So I don't want to be prejudiced by this, Judge.
[PROSECUTOR]: We did address the `98 and `99 tax returns in the 404(b) memorandum. This is specifically why I raised it back in March, because the Government wanted to present it.
Now, I did discuss with Mr. Altman the use of it, and he agreed — he himself said he wanted to introduce this evidence.
. . . .
. . . He in his opening statement, however, he opened the door to the reason as to why the 1998 and 1999 returns were filed not until 2003. That's the issue here. He opened the door as to why they were filed late; whereas, before we were not discussing why, we were discussing that they were filed late.
[DEFENSE COUNSEL]: Judge, that's a fine line. I didn't open any door. I made comments and statements based upon what I was provided and what was given to me by the Government.
[PROSECUTOR]: That's untrue.
[DEFENSE COUNSEL]: You can give the Judge the memo that you wrote. We can go over it and see if there's anything in it dealing with prompting.
. . . .
[PROSECUTOR]: Here we had discussed the 1998 and 1999 returns, but we had discussed it in the context of using that evidence for willfulness. We had not discussed it for prior IRS dealings because that's not relevant to the case. The case is 2000 to 2003. And so in — what has changed significantly is that Mr. Altman has made a representation in his opening statement that his client filed these returns completely unprompted. And that doesn't go — that has changed the, I guess the weight of the evidence. The evidence no longer is just to willfulness but as to absence of mistake, which goes hand-on-hand with willfulness, but it's a different, I guess it's a different side of the evidence, absence of mistake, and, as to his knowledge and his intent. I mean, it really goes to his intent. And Mr. Altman's statement that he had filed those returns unprompted goes to his intent as well as his knowledge, and therefore his willfulness.
[DEFENSE COUNSEL]: Sorry, Judge. I quote: April 8th, 2008, a letter authored by Ms. Chen to you. The first paragraph, last line:
It's the Government's present intention to offer at trial pursuant to Federal Rule of Evidence 404(b) evidence of other crimes, wrongs or acts by Defendant Rucci, specifically evidence establishing Defendant failed to file individual tax returns, also known as 1040s, for the calendar years `98, `99 as proof of his intent, pattern, knowledge and absence of mistake, or accident regarding his failure to file individual tax returns for the calendar years 2000 through 20003 as charged.
The second paragraph deals with Mr. Rucci's filing during that same time period of 941 forms. That has to do with the payroll taxes.
. . . .
THE COURT: What makes this a little unique, however, is the fact that when we were together in March and we were talking about the need for a 404(b) charge before a motion was filed, both sides had indicated an intention to use prior filing history . . . and therefore interaction with the IRS.
So it all seems that everyone was on notice, and each side wanted to argue the inferences to be drawn from that evidence. And indeed, I think I used various similar language that that's really what you guys wanted to do; each wanted to be able to argue whatever that filing history meant to your respective positions.
[DEFENSE COUNSEL]: Yes.
THE COURT: So the only thing that's different now — and I'm not so sure there was any kind of door opening as a result of any opening statement comment — I think it's a matter of you all wanted to use this evidence. The only thing that's changed is whether or not the Government should be able to now call a different witness. . . .
The trial court allowed Nicolaro to be added to the witness list, not for the proffered reason of "opening the door," but because there is no requirement under the Federal Rules of Criminal Procedure for the Government to disclose its witness list to a defendant, and because defense counsel admitted that he was aware of Nicolaro's contact with his client. Judge Shwartz stated her reasoning as follows:
What's unique here is this person's name was known to the Defendant, and the filing history about which this person would testify apparently has already been disclosed and, in fact, the filing history itself was going to be something Defendant could choose to use. But given the absence of a witness list obligation together with the fact that this witness was known, finally considering the fact that I understand the substance of her testimony is going to deal with prior filing history about which all are on notice and both sides wanted leave to introduce into evidence without even a 404(b) instruction, I do not find there's any unfair surprise or prejudice by introducing this testimony from this person so long as the Jencks and Giglio material, if any, are provided. . . .
Ultimately, the Government did not call Nicolaro as a witness at trial.
In addition, Dolan admitted during his testimony that he had used both his notes taken during an interview with Rucci to prepare his report. Dolan indicated, however, that the report was more thorough and contained more information than the notes, and that the notes did not contain verbatim statements made by Rucci. Defense counsel, who had only been supplied with the report, requested that the notes be supplied to him after an in camera review by the trial judge. Specifically, the following conversation took place at sidebar:
[PROSECUTOR]: There's no requirement to turn over the notes. He's turning over the Jencks material, and the memorandum represents the substance of the statements of the interview that the Special Agents have with the Defendant. There's no requirement to turn over his own handwritten notes.
THE COURT: Objection. There is, of course, an obligation to retain them if they exist. Right? And I take it they've been retained?
[PROSECUTOR]: Yes.
THE COURT: Under the Federal Rules I'm not aware of any requirement the notes be turned over unless there is some showing of need.
[DEFENSE COUNSEL]: Maybe we ought to let the jury leave.
THE COURT: You disagree with that assessment?
[DEFENSE COUNSEL]: Oh, most definitely, Judge. I mean, my gosh —
THE COURT: You see, in the Federal Court the notes are only disclosed if there is some reason to show that there's a need, that there's a material inconsistency, a good faith reason. It's my recollection that it's reviewed in an in camera review before the notes are disclosed.
[DEFENSE COUNSEL]: I'll accept that. In camera review.
THE COURT: For what? I need a reason to do it though. You haven't —
[DEFENSE COUNSEL]: These are his contemporary notes taken during the course of an interview. If nothing else, they are going to be present recollection recorded under the Rules of Evidence. I'll go through all the rest of the preliminaries of how he prepared this report, we're going to get to the same point. And I'll do it however you want me to do it. I'll waste the time in doing it.
I'll have no objection if you want to take a look at them in camera to make sure that the report is on all fours with the notes. I have no problem with that either.
But I'm somewhat surprised he even has his notes, but he has them and I'm entitled to them. If there's admissions made in this, a statement in the report, in his testimony — I certainly never asked for a Miranda hearing because of the report. I'm a little taken back. I have no other idea what admissions or what have you is in the notes.
THE COURT: Right now we have a report. And before the Court would even take a look at the notes we would need to show there's some reason that the report isn't a complete recitation, number one. Number two, you're obligated to get the statements for sure, even if they weren't in the notes. If the Government was going to offer a statement, you would be entitled to it by some disclosure by the Government.
Mr. Martinez, do you want to be heard on the topic?
[PROSECUTOR]: I wanted to. I agree with those points your Honor already made. Under the Federal Rules it's my understanding that we maintain the notes of the agent. We review the notes of the agent for any potential Giglio. But the agent in this case used the notes to refresh his recollection when he wrote the report that was provided to the defense contemporaneously, and the report contains all the discoverable information.
THE COURT: All right. Why don't we do this, you'll lay a foundation to determine how the notes were prepared.
[DEFENSE COUNSEL]: Let me put on the record: I don't disagree with anything necessarily what my adversary says, but I would like to know the rule along with what supports that proposition.
THE COURT: I think there's Third Circuit case law that concerns the rough notes requirement. I want to say it's Vella . . ., but I'm not sure, I have to check.
But why don't we let you at least lay some foundation and see if you need to go here. Thank you.
Defense counsel proceeded to question Dolan regarding his notes and his report, asking:
Q: This report of yours refers to the fact that you took notes. Correct?
A. Yes.
Q: And the report indicates that you prepared the memorandum on January 6th and January 10th, 2005. Is that correct?
A. That's correct, yeah.
Q. And you prepared the memorandum after refreshing your memory. Is that true?
A. Yes.
Q. From your notes? A. Yes.
Q. Now, is this report a verbatim recitation of every note you took down?
A. Oh, no.
Q. How many pages of notes do you have?
A. I think there were probably four pages of notes or something like that. I'm thinking four or five pages of notes.
Q. Does your report contain any direct quotes of Mr. Rucci?
A. I wouldn't say any direct quotes, but some of the — you know, some of the things he said. Because you're interviewing somebody, you're writing, and sometimes you're not writing, you know?
But there's probably — there might be some one or two things that I jotted down that he said. But you tend to jot down — you tend to write down the things that you really want to remember, like the financial information, what banks he did his banking at, you know, what — you know, securities that he had, like the stuff thank you really know you're not going to remember, that's the stuff you rend to really write down.
When he's speaking and saying things, sometimes it gets written down and sometimes it doesn't. But there might be a couple of —
Q. Would it be a fair statement for me to assume, then, that this report doesn't contain every little note that you took down?
A. Doesn't — I'd say it would probably be more likely the other things. There might be things in here that I don't have a note on because I wasn't writing when I was talking to him.
Q. So this report could contain information which isn't even contained in your notes?
A. That's right, yeah.
Q. And the only way we would be able to see whether or not what you have in your report wasn't in your notes is if we compared the two. Is that correct?
A. Right.
Defense counsel then changed his line of questioning and asked if Dolan had used the notes to refresh his recollection prior to taking the stand. When Dolan answered affirmatively, Defense counsel renewed his request at sidebar for the notes, this time on the basis of the witness having used them to refresh his recollection. However, the trial judge declined to review the notes in camera, and instead denied the request, stating, "[y]ou have to show that there's something, or you have to ask the witness some additional questions to show that the memorandum is somehow different than the notes."
On April 25, 2008, the jury returned its verdict of guilty on all four counts of the Information. Prior to sentencing, Rucci's attorney requested a downward modification of the Sentencing Guideline Offense level from 14 to 12 based upon Rucci's alleged acceptance of responsibility. (USSG § 3E1.1). At the sentencing hearing, the Government strongly objected to the downward modification of the sentence based upon cases that, in essence, stated that a defendant may still receive a downward modification under § 3E1.1 if he or she has a trial, but only for a legal challenge and not a factual challenge. Here, the Government stated, Rucci challenged an element of the offense — that he willfully failed to file his tax returns- and that such a challenge goes to the factual basis, not the legality of the charge.
The trial judge did not grant the downward modification, stating:
This [was] not a situation where an individual went to trial to preserve an issue not related to factual guilt. In fact, the situation that's been presented is a situation where a fact that goes to guilt of an essential element here has been disputed. This individual has taken the position that the conduct in which he knowingly engaged in did not give rise to criminal conduct, and hence as defined as the case law would not be wilful. The Court incorporates by reference [its] opinion in which it declined to charge the jury on something different than what good faith means. And good faith does not mean I didn't believe I was committing a crime. And the case law that the Court cited there makes clear that this was an element of the offense for which the defendant, if he were going to accept[] responsibility would have had to acknowledge having been part and parcel of all elements of the offense. He's contested criminal wilfulness as that is defined under the tax case law. And hence, has denied his state of mind element. The jury has found beyond a reasonable doubt his conduct was wilful and his desire to take the position that he wasn't engaging in criminally wilful conduct deprives him of acceptance of responsibility.
Acceptance of responsibility has a special definition. It doesn't mean I accept responsibility that I engaged in acts and it wasn't an accident. But here it goes to all elements of factual guilt. And because this one has not been — the defendant has never accepted having engaged in, that alone, is the basis by which the Court is denying his request for a downward adjustment under 3E1.1.
Nevertheless, the trial judge granted a two-level downward variance, resulting in sentences of twelve months on Counts One, Two, and Three of the Information, to run concurrent with each other, and one day on Count Four of the Information, to run consecutively with the first three counts.
It is from the convictions and sentence that Rucci appeals.
DISCUSSION
On appeal, Rucci raises three points. First, Rucci argues that it was error for the trial judge to refuse to review Dolan's notes in camera. Second, Rucci argues that it was error for the trial judge to allow the Government to expand its witness list after opening statements, as this worked a chilling effect on Rucci's defense. Finally, Rucci argues that the trial judge erred in refusing to grant him a two-level downward modification for his acceptance of responsibility. Each issue will be addressed seriatim.
I. IN CAMERA REVIEW OF DOLAN'S NOTES
Rucci's first point is that it was error for the trial judge to not grant at least in camera review of Dolan's notes, which he used to refresh his recollection prior to testifying at trial. This argument fails.
Rule 612 of the Federal Rules of Evidence states, in relevant part:
if a witness uses a writing to refresh memory for the purpose of testifying . . . before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
The rule, which allows for the disclosure of notes utilized in preparation of a witness's testimony at trial, clearly states that it is a matter of the court's discretion whether the document should be disclosed. In addition, it is a well-settled principle of law that only where the Jencks Act, 18 U.S.C. § 3500, applies to the document utilized in preparation of testimony is disclosure of same not in the broad discretion of the trial court. See Palermo v. United States, 360 U.S. 343, 349 (1959) (stating that the statute specifies the time and manner in which statements of Government witnesses must be turned over to defendants in criminal proceedings). Further, it is clear that notes are not necessarily statements contemplated by the Jencks Act. See, e.g., United States v. Nathan, 816 F.2d 230, 237 (6th Cir. 1987) (stating that informal notes are not statements for the purposes of the Jencks Act). "Neither do the documents become Jencks Act material simply because the agent may have used them to refresh her recollection prior to taking the stand." Id. Therefore, as it appears that the Jencks Act does not apply to Dolan's notes, this court reviews the trial court's evidentiary ruling as to said notes for an abuse of its discretion. See, e.g., Sprint/United Mgmt. Co. v. Mendelsohn, 128 S. Ct. 1140, 1144-45 (2008) (citing the deferential standard of review to be given to trial courts who have "familiarity with the details of the case and . . . greater experience in evidentiary matters" than the reviewing court); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) ("[A]buse of discretion is the proper standard of review of a [trial] court's evidentiary rulings."); accord, United States v. Ford, 481 F.3d 215, 217 (3d Cir. 2007); United States v. Mornan, 413 F.3d 372, 377 (3d Cir. 2005) ("To the extent that our review of the District Court's determination implicates its interpretation of the Federal Rules of Evidence, our review is plenary, but where the District Court's ruling was based on a permissible interpretation of a rule, we review only for an abuse of discretion." (quotations and citations omitted)).
Here, Rucci cites to United States v. Vella, 562 F.2d 275 (3d Cir. 1977), United States v. Ammar, 714 F.2d 238 (3d Cir. 1983), and United States v. Ramos, 27 F.3d 65 (3d Cir. 1994) as supportive of at least an in camera review of Dolan's notes by the trial court based upon the retention requirements of the Jencks Act. This assertion fails.
In Vella, 562 F.2d at 275-76, the Third Circuit adopted the approach of the D.C. Circuit Court of Appeals as to preservation of rough notes, holding that "the rough interview notes of F.B.I. agents should be kept and produced so that the trial court can determine whether the notes should be made available to [a defendant] under Brady v. Maryland, 373 U.S. 83 (1963) or the Jencks Act." The case did not set forth a blanket rule as to the need for disclosure of rough notes under either Brady or Jencks.
Brady stands for the proposition that evidence favorable to the accused must be disclosed.
In Ammar, 714 F.2d at 258-60, the Third Circuit further analyzed the importance of maintenance of documents by the Government pursuant to the Jencks Act. The circuit court held that rough drafts of reports constitute statements within the meaning of the Jencks Act if they are adopted by a law enforcement agent-usually by showing the draft to a supervisor for review. Id. at 259. Ammar did not involve a discussion of rough notes, as those had been turned over to the defendant upon request.
Finally, in Ramos, 27 F.3d at 69-70, the Third Circuit held that the rough notes of two Philadelphia police officers working in league with the Drug Enforcement Agency ("DEA") did not constitute statements within the meaning of the Jencks Act. Thus, stated the court, although the notes were destroyed in good faith but in violation for government retention policies by the officers, there was no violation of the Jencks Act. Id. at 70. However, the court went on to examine the issue of whether the notes were required to be disclosed under Brady. Id. at 70-71. Although the notes had been destroyed, and thus it was impossible to tell what information they actually contained, the court nevertheless concluded that "the defendants ha[d] offered nothing beyond their speculation that the agents' notes might have contained Brady material," which did not rise to the level of a colorable claim of government misconduct warranting reversal of defendants' convictions. Id. at 71. Therefore, the court found no violation of the Brady rule, and affirmed the trial court's denial of defendants' motion to suppress. Id. at 72.
What is worthy of note is that none of these cases stand for the proposition that rough notes must, as a blanket rule, be reviewed by the trial court in camera for potential Brady material. What is likewise worthy of note is that Rucci does not argue now, nor did he argue below, that the notes contained Brady material. Rather, Rucci argued below, and argues on appeal, that it was error for the trial court not to inspect the notes in camera without a foundation established by defense counsel's questioning, simply because of Rule 612 and the potential for Giglio materials within the notes.
Giglio v. United States, 405 U.S. 150 (1972). Defendant seems to argue that the fact that Dolan's report was more complete than his notes creates an issue under Giglio and triggers the discovery requirement under Brady.
As the Supreme Court stated in Goldman v. United States, 316 U.S. 129, 132 (1942), overruled on other grounds by Katz v. United States, 389 U.S. 347 (1967), "where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them." Here, the notes were used by Dolan to refresh his recollection prior to testifying in court. Rucci had no absolute right to have these documents produced, even for in camera inspection, and the trial court found that Rucci's attorney failed to establish a sufficient foundation for the inspection of the notes. As stated above, Rule 612 makes the production and review of documents used to refresh a witness's recollection prior to taking the stand discretionary on the part of the trial judge. While an in camera review of the notes may have saved this argument from being raised on appeal, this court cannot say that it was an abuse of the trial judge's discretion to refuse to do so without a proper foundation. The establishment of a foundation through Dolan's testimony as to the alleged contents of the notes would have shown the trial judge, first, whether Dolan actually relied on notes to refresh his recollection, and second, whether the notes were subject to the Jencks Act, or whether Rucci believed they contained Brady or Giglio materials. See Sporck v. Peil, 759 F.2d 312, 318 (3d Cir.), cert. denied, 474 U.S. 903 (1985) (stating that "identification of . . . documents under Rule 612 should only result from opposing counsel's own selection of relevant areas of questioning, and from the witness' subsequent admission that his answers to those specific areas of questioning were informed by documents he had reviewed"); Ramos, 27 F.3d at 71 (adopting the position of the Ninth Circuit in United States v. Griffin, 659 F.2d 932, 939 (9th Cir. 1985), "that `unless [a] defendant is able to raise at least a colorable claim that the investigator's discarded rough notes contained evidence favorable to [him] and material to his claim of innocence or to the applicable punishment — and that such exculpatory evidence has not been included in any formal interview report provided to defendant — no constitutional error of violation of due process will have been established'"). Without more, Rucci has failed to meet his burden of showing that the trial court abused its discretion, and its judgment in this respect must be affirmed.
II. AMENDMENT OF GOVERNMENT'S WITNESS LIST TO INCLUDE NICOLARO AFTER RUCCI'S OPENING STATEMENT
Rucci next asserts that the trial court abused its discretion in allowing the Government to amend its witness list after Rucci's opening statement, as the amendment worked a chilling effect on the presentation of Rucci's defense. As will be shown, this argument likewise fails.
After Rucci's opening, the Government moved to have Mary Nicolaro included on its witness list. The proffer was that her testimony would be used to rebut the statement that Rucci had filed certain of his tax returns late, but without any prompting. The trial court, after inquiring of whether the defendant knew of Nicolaro prior to the beginning of trial, decided that it would allow the Government to amend its witness list, not for the reason proffered, but because the Federal Rules of Criminal Procedure do not require the exchange of witness lists, and because defense counsel admitted that he was aware of Nicolaro's existence.
As both the trial court in its oral opinion and the Government in its brief point out, there is no Federal Rule of Criminal Procedure that requires the exchange of witness lists in the ordinary course. According to the Government's brief, the exchange was done as a matter of professional courtesy prior to trial. Certainly, this is not a right manifest within the Fifth Amendment. Rucci does not, and cannot, cite to a case wherein a federal defendant's conviction was reversed on this basis, as he admits in his brief that "[a]n exhaustive search of the caselaw (sic) has failed to reveal a reported decision with an analogous set of circumstances to the instant matter." Rather, Rucci complains that Nicolaro's addition to the witness list constituted surprise given the Government's Fed.R.Evid. 404(b) motion prior to trial, wherein the Government never specified that it would be utilizing evidence from Nicolaro with regard to the 1998 and 1999 tax returns. This argument likewise fails. The purpose of the notice requirement under Fed.R.Evid. 404(b) is to prevent surprise at trial. Fed.R.Evid. 404(b), Notes of Committee on the Judiciary, Sen Rep. No. 93-1277.Here, there could not have been surprise, as the information regarding Nicolaro came from the defendant himself.
There is a special rule for production of alibi witness lists. Fed.R.Crim.P. 12.1.
In addition, as the Government rightly points out, the normal remedy for error in admission of testimony is exclusion of that witness's testimony. See United States v. Carter, 756 F.2d 310, 312-13 (3d Cir. 1985). Here, the witness in question never testified at trial. Even if the trial court abused its discretion in allowing the Government to amend its witness list during the trial, any resulting error would be rendered harmless by the fact that Nicolaro never testified at trial. As the Carter court stated, in the context of Fed.R.Crim.P 12.1, which actually requires the disclosure of witness lists, "the defendant knew of the witnesses' existence and their names, and expressly acknowledged by his advance prepared voir dire questions his expectation that the Government intended to call them as witnesses at trial. Given these circumstances, it is impossible to understand how the defendant can now argue that he was completely `surprised' and that his `trial strategy [was] shattered' . . . by the use of the witnesses at trial." Id. at 312. Given the fact that Rucci knew of the existence of Nicolaro, and that Rucci himself provided the Government with correspondence between Nicolaro and himself, it defies credulity to accept that her mere presence on a witness list could somehow have worked such a chilling effect on Rucci's defense so as to have deprived him of a fair trial. Judge Shwartz did not abuse her discretion in allowing the amendment, and no prejudice can have resulted thereby.
III. TRIAL COURT'S DECISION NOT TO GRANT A TWO-LEVEL DOWNWARD MODIFICATION IN RUCCI'S SENTENCING GUIDELINE LEVEL
Rucci's final argument is that the trial court erred in failing to grant him a two-level downward modification in his Sentencing Guideline Offense level ("Guideline level") for acceptance of responsibility. For the reasons that follow, this argument likewise fails.
In matters of sentencing, this court reviews the trial court's judgment for clear error. United States v. Muhammad, 146 F.3d 161, 167 (3d Cir. 1998). Specifically, with regard to a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), "a defendant is entitled to a two-level reduction to his calculated offense level if he clearly demonstrates acceptance of responsibility for his offense." Muhammad, 146 F.3d at 167 (internal quotation marks omitted). This reduction, however, "generally does not apply to a defendant `who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted and only then admits guilt and expresses remorse.'" Id. at 167 (quoting U.S.S.G. § 3E1.1, cmt. 2). There are, however, rare instances in which a defendant may exercise his or her constitutional right to a trial and nevertheless qualify for such a reduction. Id. "Such a situation may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct)." Id. at 167-68. The determination in these instances will nevertheless be made based largely upon the defendant's pre-trial statements and conduct. Id. at 168.
Here, it is clear that Rucci does not qualify for the "acceptance of responsibility" reduction in Guideline level. Rucci claims that he is challenging his state of mind with regard to the crimes charged, and that this challenge is akin to a "good faith" challenge such as the one presented in United States v. Thomas, 315 F.3d 190 (3d Cir. 2002) (holding that defendant, who had been convicted of bank fraud, was not actually guilty of bank fraud, had challenged the charge of bank fraud in good faith by way of exercising her right to a trial, and thus reversed her conviction). The fundamental flaw in Rucci's argument, is that in the case he has cited, the defendant challenged the indictment on the belief that what she had done, while wrongful and very possibly illegal, was not, in fact, bank fraud within the meaning of the statute. However, the mens rea of "willful" is one of the essential factual elements of the crimes charged.
This case is factually very similar to United States v. Chastain, 84 F.3d 321 (9th Cir. 1996), wherein the Ninth Circuit affirmed the district court's reversal of a two-level downward departure in a defendant's sentence based upon the sentencing judge's erroneous finding that defendant met the criteria for "acceptance of responsibility." In that case, Chastain was, like Rucci, convicted of willful failure to timely pay taxes, and challenged the willfulness element at trial. Id. at 322. There, the Ninth Circuit held, "[b]ecause Chastain attacked the government's proof on willfulness, which is a specific, factual element of a § 7203 offense, he was not in one of the `rare situations' that would qualify him for a reduction under Guideline § 3E1.1." Id. at 324 n. 3 (quoting and citing U.S.S.G. § 3E1.1 n. 2).
Similarly, in United States v. Mikutowicz, 365 F.3d 65, 69 (1st Cir. 2004), the defendant was convicted of one count of conspiring to commit tax fraud; five counts of filing materially false tax returns; and four counts of tax evasion. The First Circuit, in examining a district court's grant of a two-level downward modification for acceptance of responsibility despite a challenge to the mens rea of the charge, stated:
The district court ruled that Mikutowicz admitted the "essential factual elements of guilt" before trial, even though he went to trial to claim that his conduct was not "willful" and therefore not criminal. This determination was clearly erroneous. By contesting willfulness, Mikutowicz did not admit "the essential factual elements of guilt."Id. at 76 (quoting U.S.S.G. § 3E1.1 comment (n. 2) (1998) and citing United States v. Bennett, 37 F.3d 687, 697 (1st Cir. 1994)).
Finally, the holding of United States v. Bean, 18 F.3d 1367 (7th Cir. 1994), which Rucci cites as dispositive, is in fact being read far too broadly by defendant. Bean does, as defendant claims, stand for the proposition that a 2-level downward modification may be available for a defendant who pays restitution prior to trial for the offense of which he or she is later convicted. Id. at 1368. However, as the Government rightly points out, the Seventh Circuit was not charged in Bean with deciding whether Section 3E1.1 was always applicable in cases where restitution was made prior to trial, or if it was the only criteria by which a defendant's conduct should be judged. Rather, the court in Bean was tasked with deciding whether the sentencing court's 6-level downward modification was appropriate given defendant's payment of restitution.
Here, given the precedent in this and other circuits, it was not clear error for Judge Shwartz to refuse to grant Rucci a 2-level downward modification in his Guideline level.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed in its entirety.