APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 75-147).
Seitz, Chief Judge, Van Dusen and Weis, Circuit Judges.
The prosecution's obligation to furnish exculpatory material to the defense in a criminal case is firmly established. Not always as clear, however, is the time when that duty must be performed. Recognizing some truth in the adage "better late than never," we conclude that in this case the production of favorable evidence during trial is not reversible. We reach our conclusion because of the lack of demonstrated prejudice, though we disapprove and discourage a practice of delayed production.
The defendant Kaplan was convicted on seven counts of filing false personal and corporate income tax returns*fn1 during the time he served as president and chairman of the board of Spiral Metal Company, South Amboy, New Jersey. The prosecution resulted from his scheme to siphon off cash from the corporation by falsifying its inventory. Kaplan arranged to have Spiral Metal checks - together with fictitious purchase orders - issued ostensibly for the purchase of precious metals customarily used in the company's operations. He delivered the checks to either Mario Betancourt or Daniel Roberts who cashed them, generally at Kaplan's bank, returned the proceeds to the defendant, and received a commission for their services. The defendant did not report this cash as income on his personal tax returns, and the corporation improperly deducted the "purchases" on its returns.
Roberts, a key government witness, owned the Mercury Trading Company which on infrequent occasions supplied merchandise to Spiral Metal. In most of his dealings with Kaplan, however, Roberts only cashed Spiral's checks payable to himself or Mercury and remitted the money to the defendant. Fictitious Mercury purchase slips documented these transactions. Consequently, Spiral's records of disbursements and purchases were in balance, although the inventory was less than the company's records demonstrated.
Before trial, the defendant moved for production of documents pursuant to Fed. R. Crim. P. 16, and by agreement the prosecution delivered some papers to defense counsel. The government, however, declined to turn over records received from Roberts and, on June 3, 1975, deposited them with the trial judge for his ruling on discoverability. At a pretrial conference six days later, the court ruled in the government's favor and retained possession of the records. It was understood that this voluminous collection of documents was to be made available to defense counsel the evening before Roberts took the witness stand.
Trial began on June 25, 1975, and on July 2, the prosecutor stated that he had no objection to defense counsel reviewing the documents then in the judge's chambers. The defendant's lawyer did not examine the records until six days later, after Roberts and his wife had completed their testimony.*fn1a The following morning, July 9, 1975, defendant moved for dismissal of the indictment, a mistrial, or the opportunity to recall Roberts, alleging that the government had failed to produce Brady material. Defense counsel, avowedly not relying on Fed. R. Crim. P. 16, characterized the Roberts records as exculpatory within the ambit of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The court granted the motion to recall Roberts for further cross-examination and, because of the large number of documents involved, recessed the trial until July 11, 1975 so that defense counsel could review the papers in detail.
When Roberts was recalled for further cross-examination, defense counsel used some of the documents for impeachment purposes. After being shown certain invoices and similar records, the witness admitted that on those occasions he had delivered merchandise to Spiral and, to that extent, his testimony on direct examination was erroneous. The jury nevertheless found the defendant guilty on all counts.*fn2 The district judge denied motions for judgment of acquittal and new trial, concluding that the belated access to the documents and other assigned errors did not warrant vacating the conviction.
The government produced Roberts' testimony to show he had received Spiral checks for merchandise although none had been delivered. According to the defendant, since some of the documents proved that merchandise had in fact been delivered on certain occasions, the records were exculpatory in nature. Therefore, he argues, the material should have been turned over in advance of trial and, further, the prosecution's tardy tender did not permit adequate investigation and evaluation.
The rule of Brady v. Maryland is founded on the constitutional requirement of a fair trial, binding on both state and federal courts. It is not a rule of discovery. As the Supreme Court said in Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977):
"There is no general constitutional right to discovery in a criminal case, and Brady did not create one . . . 'the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded. . . .' Wardius v. Oregon, 412 U.S. 470, 474 [37 L. Ed. 2d 82, 93 S. Ct. 2208] (1973)."
However, Fed. R. Crim. P. 16, applicable only to federal courts, permits discovery in advance of trial. While the rule has been criticized as unduly restrictive, it does provide that upon request the defendant may ...